CM Report of Recent Decisions – 2018 Vol. 2

July 30, 2018 / CM Reports

Appraisers May Determine Cause Of Damage

In Walnut Creek Townhome Association v. Depositors Insurance Co., No. 16- 0121 (Iowa, June 1, 2018), the Iowa Supreme Court held that the factual cause of damage to insured property may be determined by appraisal.

Insured Has Burden Of Showing What Claimed Damage Occurred During The Policy Period

Applying Texas law, the Fifth Circuit holds that where property damage is caused by multiple events, some of which occurred during and some outside of the policy period, the insured bears the burden of proving what portion, if any, of the claimed damages occurred during the policy.

What’s Next Now That The Restatement Of Liability Insurance Was Approved?

Lawyers must stand up for the integrity of the law. Both the insurance industry and policyholders must fight any court’s inclination to rely upon the final Restatement of the Law of Liability Insurance (the Restatement) to the extent it contravenes the common law, is out of sync with majority rules, or “creates” rather than “restates” liability insurance law. A “restatement” traditionally has been a summary of existing common law. However, the Restatement of Liability Insurance is an advocacy piece, not a summary of the common law.

New York High Court Rejects “Unavailability Rule” In Keyspan

In KeySpan Gas E. Corp. v. Munich Reins. Am., Inc., 31 N.Y.3d 51 (2018) (“KeySpan”), the New York Court of Appeals held that the “unavailability rule”, whereby long-tail damages are not allocated to periods when relevant insurance was “commercially unavailable,” is inconsistent with policy language limiting coverage to damage taking place “during the policy period.” The Court of Appeals reasoned that to allocate risk to the insurer for years outside the policy period ignores that the policies do not provide indemnification for liability incurred as a result of an accident or occurrence taking place outside that period.

Excess Insurer Has No Duty To Defend Where Excess Policy’s Scope Of Coverage For Subject Claim Is Same As Underlying Policy

In Johnson Controls, Inc. v. Cent. Nat’l Ins. Co., 2018 Wisc. App. LEXIS 422, 48 ELR 20068, 2018 WL 1957131 (Wis. App. 2018), the Wisconsin Court of Appeals reversed a $68 million judgment in favor of insured Johnson Controls, Inc. (“Johnson Controls”) in an environmental insurance coverage litigation matter. The Court held that two excess insurers had no obligation to defend Johnson Control against the underlying environmental claims, because the duty to defend only arose where the occurrence was covered under the excess policies but not the underlying insurance.

If At First You Don’t Succeed: Wisconsin Supreme Court Approves Caps In Med Mal Cases

Life is about many things, and one of the most important is perseverance. Walt Disney went bankrupt several times before he built Disneyland. He passed on a cartoonist named Charles Schultz, who eventually did alright drawing a group of kids and a dog named Snoopy. Thomas Edison found 1,000 ways not to invent a lightbulb. Michael Jordan lost almost 300 games, missed 9,000 shots, and failed to make 26 game-winning baskets. We count them among the greatest of their fields. They all kept shooting.

New Duties Owed By Universities To Students And Pharmacists To Customers/Patients

Progress does not come cheap, a fact no more evident than in the field of pharmacology. The progress, of course, is undeniable. Once blends of herbs, roots, oils, and powders—with a prayer thrown in for luck—today’s complex, scientifically-based compounds can cure conditions unknown in past centuries. But they don’t come without years of research and testing supported by huge financial investments for which investors hope to be handsomely rewarded.

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