CM Report of Recent Decisions (2006v4)
2006 Volume 4
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
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Articles in this report
Application Of California's Anti-SLAPP Statute In The Medical Staff Peer Review Context: The California Supreme Court Protects Peer Review Participants
In a case of first impression, the California Supreme Court held that a hospital’s medical staff peer review proceedings are an “official proceeding authorized by law” and thus, statements and actions made in connection with such proceedings are subject to a special motion to strike under California’s “anti-SLAPP” statute. Kibler v. Northern Inyo County Local Hospital District, 39 Cal. 4th 192 (2006).
Fax Blasting Potentially Covered Under Commercial Liability Policy
In Valley Forge Ins. Co. v. Swiderski Electronics, Inc., 2006 WL 3491675 (Ill. 2006), the Illinois Supreme Court held that allegations against an insured for unsolicited faxes potentially fell within the insured’s commercial general liability “advertising injury” coverage as a “publication,” and “material that violates a person’s right of privacy.” The “right of privacy” in the “advertising injury” provision connoted both an interest in seclusion and an interest in the secrecy of personal information.
Fourth Circuit Upholds Insurer-Imposed Deadline For Property’s Repair Or Replacement
The Fourth Circuit, applying South Carolina law, held that a deadline imposed by the insurer requiring the insured to repair its fire damaged property within two and a half years after the date of the fire did not constitute an anticipatory breach, or an act contrary to the requirement of good faith and fair dealing. Collins Holding Corp., LP v. Wausau Underwriters Ins. Co., 2006 WL 3147559 (4th Cir. 2006).
Illinois Selective Tender Rule Remains Viable Subject To The Application Of Horizontal Exhaustion
Illinois Supreme Court Adopts Multiple Occurrence Outcome In Environmental Coverage Action Involving Multiple Mercury Spills
In NICOR, Inc. v. Associated Electric & Gas Ins. Services, Ltd., 2006 WL 3491670 (Ill.), a case of first impression under Illinois law, the Illinois Supreme Court addressed the number of occurrences issued in the context of a claim for coverage of environmental liabilities, holding that multiple mercury spill contamination claims against NICOR each constituted a separate occurrence under the excess policies at issue.
In The Wake Of Henkel--Four Recent State Supreme Court Decisions Refine The Legal Landscape Regarding Enforceability Of Anti-Assignment Clauses In Insurance Policies
In recent years there has been an increase in litigation over the issue of whether alleged corporate successors and assignees have a right to seek coverage under insurance policies which do not list them as named or additional insureds. The seeds of this increased litigation were planted in part by the seminal 2003 California Supreme Court decision in Henkel Corp. v. Hartford Acc. & Indem. Co., 62 P.3d 69 (Cal. 2003).
Indiana Supreme Court Re-Affirms Rule That A Principal Is Not Liable For The Negligence Of An Independent Contractor Absent A Claim Of Negligent Hiring
It is well-established under Indiana law that a principal is not liable for the negligence of an independent contractor. However, Indiana courts have recognized five exceptions to this general rule.
The Wooddale Decision - Pro Rata Allocation Time Period Excludes Periods During Which Insured Lacked Coverage Because Insurance Coverage For Claimed Damages Was Not Available
In Wooddale Buildings, Inc. v. Maryland Casualty Co., et al., 2006 Minn. LEXIS 679, the Minnesota Supreme Court modified Minnesota law on how damages are to be allocated among insurers in a case involving continuous and indivisible property damage. Specifically, the court found that under the pro-rata by time on the risk liability allocation method, periods in which insurance coverage was not available to the insured must be excluded from the allocation spread.
Undue Delay In Pursuing Subrogation May Result In Missing The Recovery Boat
In determining when to engage counsel on a potential recovery opportunity involving multiple claimants, it is important to recognize the harsh realities of moving too slowly. Where more than one party is seeking recovery against a target defendant, the target’s liability policy limits could easily be exhausted before your claim is presented for settlement or a judgment secured - leaving you without any recourse other than the extent of the target’s own collectible assets.
United States’ Liability For Negligent Disaster Response Under The Federal Tort Claims Act
Following disasters, both natural or man-made, those affected naturally look to their government for assistance and support. In addition to emergency response, rescue and recovery efforts, citizens expect the federal government to provide timely and accurate information regarding environmental, health and/or other related risks. The last several decades have seen considerable growth in the number and scale of governmental programs devoted to preparing for and managing emergency disaster response.
Warehouse Lending Losses Not Covered Under A Financial Institution Bond
In a case of first impression, Clausen Miller attorneys Scott L. Schmookler and Gilbert J. Schroeder achieved a significant victory when the United States District Court for the Eastern District of Michigan held that a $20 million warehouse lending loss was not covered, as a matter of law, under a financial institution bond.
