CM Report of Recent Decisions – 2018 Vol. 1

Restatement Of The Law Of Liability Insurance Makes Its Mark Prior To Approval

As we reported last issue, Clausen Miller’s Restatement of Liability Insurance Law Task Force assists insurers in understanding, monitoring, and responding to the Restatement’s unprecedented “rewriting” of the common law on liability insurance on a broad array of issues.

California Supreme Court Confirms SB800 As The Exclusive Remedy For Construction Defect Claims

The unanimous decision by the California Supreme Court in the highly anticipated McMillin Albany, LLC v. Superior Court, No.5229762 (1/18/2018), case resolved a previous split in California law as to the boundaries of California’s Right to Repair Act, Civil Code §§ 895, et seq. (“SB800”).

2nd Circuit Joins The List Of Federal Courts Holding That Sexual Orientation Discrimination Is A Violation Of Title VII

On February 26, 2018, the Second Circuit Court of Appeals issued an en banc decision in Zarda v. Altitude Express, Inc. No. 15-3775, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act.

No Coverage For Counterfeit Wine Under “Valuable Possessions” Policy

With some amusing nods to Shakespeare, a California Appellate Court holds that an unsuspecting wine collector who purchased millions of dollars’ worth of counterfeit wine from a “villainous wine dealer” sustained a financial loss, but no loss to property that was covered by his “Valuable Possessions” property insurance policy.

10th Circuit Holds Damage To Insured’s Work Caused By Subcontractor’s Faulty Workmanship A Covered “Occurrence” Under New York Law

In Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 16-3359, 2018 U.S. App. LEXIS 3342, 2018 WL 843284 (10th Cir. 2018), the U.S. Court of Appeals for the Tenth Circuit, applying New York law in a construction defect coverage case, held that where a policy contains a “Subcontractor Exception” to a “Your Work” exclusion, property damage to an insured’s work product caused by a subcontractor’s faulty workmanship constituted a covered “occurrence”, and coverage was not precluded under the “Your Work” exclusion.

Circuit Court Of Cook County Again Rules That Policyholder Failed To Prove Primary Exhaustion In Asbestos Coverage Case

The Circuit Court of Cook County recently ruled that John Crane, Inc. did not demonstrate that its primary policies were exhausted and thus, any ruling regarding exhaustion of the umbrella and excess policies would be premature. John Crane Inc. v. Admiral Insurance Company, et al., Case No. 04-CH-08266 (Dec. 28, 2017).

Illinois Fault Allocation Tale Of Two Statutes: A Balancing Test Gone Wrong

Once upon a time, Illinois had two statutes designed to equitably apportion fault and so protect minimally responsible defendants from mega-dollar judgments. Though the statutes still stand, they don’t provide defendants in personal injury cases near the protection they were intended to give.

New York High Court Holds “Private” Facebook And Other Social Media Postings May Be Discoverable

The Court of Appeals of New York holds that even materials marked “private” by Facebook users are subject to discovery if they contain material relevant to the issues in controversy in the litigation. Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (Feb. 13, 2018).

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