Blogs

Alabama Court Holds Professional Liability Exclusion Applicable to Negligent Inspection

By Richard K. Traub posted 5 days ago
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​ In its recent decision in AIX Specialty Ins. Co. v. H&W Tank Testing, Inc., 2017 U.S. Dist. LEXIS 169787 (M.D. Ala. Oct. 12, 2017), the United States District Court for the Middle District of Alabama had occasion to consider the scope and permissibility of a professional liability exclusion contained in a general liability policy. H&W, a tanker truck inspection company, was sued in connection with its alleged negligence in inspecting a tanker truck carrying a load of propane gas.  The truck later was involved in a crash, which resulted in the propane leaking and ultimately exploding, causing severe injuries to the driver.  The driver sued H&W on the ...
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Florida Court Holds Prior Knowledge Exclusion Precludes Coverage for Malpractice Suit

By Richard K. Traub posted 08-15-2017
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​ In its recent decision in Farbstein v. Westport Ins. Corp ., 2017 U.S. Dist. LEXIS 125990 (S.D. Fla. Aug. 9, 2017), the United States District Court for the District of Florida had occasion to consider the application of a prior knowledge exclusion in a lawyers professional liability policy. At issue in Farbstein was Westport’s coverage obligations arising from its insured’s work associated with a real estate transaction.  The malpractice suit alleged that the insured learned just weeks prior to the deal’s closing that he had failed to negotiate a key term that had been requested by his client concerning responsibility for a pre-payment penalty clause ...
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Texas Passes Bill to Curb Hail Litigation

By Richard K. Traub posted 07-13-2017
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​Texas governor Greg Abbott recently signed legislation designed to curb the state’s recent spate of hail litigation against homeowner’s insurers. The new legislation, House Bill 1774 (and its counterpart Senate Bill 10), will require Texas insureds to provide their property insurers with notice at least 61 days prior to filing any lawsuit to recover indemnity for damage caused by forces of nature, including hail, wind, tornados, and lightning. The notice must provide a statement of the acts or omissions giving rise to the claim, the specific amount alleged to be owed by the insurer on the claim, and the amount of reasonable and necessary attorney’s fees incurred ...
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Opioid issues

By John E. Hall, Jr posted 06-18-2017
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​ View complete report: Narcotics in Workers Compensation (PDF) Prescription drugs account for about 19% of workers compensation medical costs. In 2009, the narcotic OxyContin ® was the most popular drug prescribed in workers compensation and another narcotic, Hydrocodone-Acetaminophen, was the third most popular drug. The American College of Occupational and Environmental Medicine states, "the overuse of opioid therapy to treat chronic pain conditions is becoming epidemic in the United States," and, "there are many treatments that should be considered before opioids". According to this organization: "Opioids are becoming more controversial ...
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Opioid Defense Task Force

By John E. Hall, Jr posted 06-16-2017
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​HBS announces the establishment of the Opioid Defense Task Force.  We will be working with attorneys, providers, insurers and pharmaceutical companies on a national and regional level to implement strategic best practice defense to this area.  If you are an insurer, defense attorney or provider who would like to participate, please email me at jhall@hbss.net.  We are stronger together!
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New York’s Highest Court Applies Proximate Cause Test To Additional Insured Endorsement

By Richard K. Traub posted 06-08-2017
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In  The Burlington Insurance Company v. NYC Transit Authority, et al., (N.Y. June 6, 2017), the New York Court of Appeals – New York’s highest court – held that when an insurance policy states that additional insured coverage applies to bodily injury “caused, in whole or in part” by the “acts or omissions” of the named insured, the coverage applies to injury “proximately caused by the named insured.” The Court rejected the argument that an additional insured obligation is owed under this language when the named insured is without fault. In so holding, the Court concluded that the Appellate Division “erroneously interpreted” this policy language as extending ...
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Second Circuit Holds Pollution Exclusion Applicable to Sewage-Related Claims

By Richard K. Traub posted 06-06-2017
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In its recent decision in Cincinnati Inc. Co. v. Roy’s Plumbing, Inc., 2017 U.S. App. LEXIS 9729 (2d Cir. May 31, 2017), the United States Court of Appeals for the Second Circuit, applying New York law, had occasion to consider the application of a pollution exclusion to a case involving the release of sewage. At issue in Roy’s Plumbing was coverage for a lawsuit alleging that the insured negligently performed inspection work and construction of a sewer refurbishment in the Love Canal area.  This allowed for pressure to build in the sewage system causing sewage and toxic “Love Canal materials” to be released from the sewers and onto the homes and properties ...
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Top Golf Event, May 18, Alpharetta, GA

By John E. Hall, Jr posted 05-18-2017
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Hall Booth Smith, PC, along with, Carr Allison, Sweeny Wingate & Barrow, and Traub Lieberman Straus & Shrewsberry, LLP, are conducting a 1 day seminar May 18 regarding Legal Updates on Trending Topics at Top Golf, Alpharetta, GA. Speakers include: John Hall, Abe Varner, and Wayne Satterfield from Hall Booth Smith Stuart Panensky from Traub Lieberman Tom Oliver, Shaun DeCoudres, and Walker Moss from Carr Allison Martin Driggers from Sweeny Wingate & Barrow
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Third Circuit Finds Coverage for Faulty Workmanship Claim

By Richard K. Traub posted 04-27-2017
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In its recent decision in Travelers Prop. Cas. Co. of Am. v. USA Container Co., 2017 U.S. App. LEXIS 6602 (3 rd Cir. Apr. 18, 2017), the United States Court of Appeals for the Third Circuit, applying New Jersey law, had occasion to consider the scope of coverage afforded under a general liability policy for property damage resulting from faulty workmanship. Travelers’ insured, USA Container, was hired by Meelunie B.V./Amsterdam, a corn syrup distributor, to arrange for the transfer of corn syrup from rail cars to drums, so that the product could be shipped overseas.  USA Container subcontracted out a portion of the work requiring heating of the syrup ...
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Applying The Peppers Doctrine, Illinois Appellate Court Affirms Stay Of Insurer’s Declaratory Judgment Action

By Richard K. Traub posted 04-21-2017
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In Sentry Ins. v. Cont’l Cas. Co. , 2017 IL App (1st) 161785, the Appellate Court of Illinois, First District had occasion to consider whether a trial court properly entered a stay on an insurer’s declaratory judgment action when interpreting the applicability of coverage exclusions would determine an ultimate fact in the underlying litigation. The underlying cases involve approximately 65 consolidated claims against Northwestern Memorial Hospital. The underlying plaintiffs provided semen and testicular tissue samples to Northwestern for safekeeping. The plaintiffs stored their samples with Northwestern between April and June 2012. Allegedly their samples ...
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Connecticut Court Holds No Coverage for Late Notice Under D&O Policy

By Richard K. Traub posted 04-13-2017
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In Zahoruiko v. Fed. Ins. Co ., No. 3:15-cv-474 (VLB), 2017 U.S. Dist. LEXIS 28204 (D. Conn. Feb. 28, 2017), the United States District Court for the District of Connecticut had occasion to consider whether an insured’s late notice of a pending lawsuit can preclude D&O coverage. Graham Zahoruiko was an officer of SpaceWeb Corporation, which was later known as Refresh Software Corporation. The company and Zahoruiko were covered under two Directors and Officers (D&O) insurance policies. In 1999, Zahoruiko executed a debt note for a line of credit on behalf of the company. Zahoruiko also executed a personal guaranty to secure the note. The company subsequently ...
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Seventh Circuit Finds Faulty Work Not a Covered “Occurrence”

By Richard K. Traub posted 03-21-2017
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In Allied Prop. & Cas. Ins. Co. v. Metro North Condo. Assn , No. 16-1868, 2017 U.S. App. LEXIS 4107 (7th Cir. Mar. 8, 2017), the Seventh Circuit had occasion to consider whether claims of faulty workmanship could constitute property damage caused by an occurrence as required by the insuring agreement of a CGL policy. Metro North Condominium Association (Metro North) hired a developer to build a condominium in Chicago. The developer hired a subcontractor, CSC, to install the buildings windows, and CSC allegedly installed the windows defectively. As a result, common elements of the building purportedly suffered significant water damage and individual condominium ...
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Missouri Supreme Court Limits Personal Jurisdiction Over Businesses In Missouri

By Patrick E. Foppe posted 03-13-2017
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The Supreme Court of Missouri recently restricted the extent to which Missouri courts have general personal jurisdiction over corporations. Plaintiffs can no generally longer use Missouri courts to sue out-of-state companies that operate significant portions of their business in Missouri for suits unrelated to Missouri (albeit relatively small portion in relation to their overall operations) even if they have registered agent in Missouri. A copy of the Missouri Supreme Courts decision in State ex rel. Norfolk Southern Railway Company v. Dolan can be found here . The plaintiff sued Norfolk Southern Railway Company, a Virginia corporation, in St. Louis ...
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Oklahoma Supreme Court Holds Indoor Air Exclusion Permissible

By Richard K. Traub posted 02-28-2017
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In its recent decision in Siloam Springs Hotel v. Century Sur. Co ., 2017 Okla. LEXIS 15 (Okl. Feb. 22, 2017), the Supreme Court of Oklahoma, on certified question from the United States District Court for the Western District of Oklahoma, had occasion to consider the enforceability of an indoor air exclusion in a general liability policy. Century insured Siloam Springs Hotel under a general liability policy with an exclusion applicable to: Bodily injury, property damage, or personal and advertising injury arising out of, caused by, or alleging to be contributed to in any way by any toxic, hazardous, noxious, irritating pathogenic or allergen qualities ...
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Legal Malpractice Insurer Has No Duty to Defend Contempt Proceeding

By Richard K. Traub posted 02-23-2017
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In its recent decision in Jones, Foster, Johnston & Stubbs, P.A. v. Prosight-Syndicate 1110 at Lloyds , 2017 U.S. App. LEXIS 2550 (11 th Cir. Feb. 14, 2017), the United States Court of Appeals for the Eleventh Circuit, applying Florida law, had occasion to consider whether a legal professional liability insurer had a coverage obligation with respect to an underlying contempt proceeding. Prosight insured the Jones Foster law firm under a professional liability policy insuring all sums which the Insured shall become legally obligated to pay as damages for claims arising out of any act, error, [or] omission in the rendering of or failure to render Professional ...
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California Court Of Appeals Holds Builder Must Respond To Notice of Claim Under The Right to Repair Act Within Statutory Period Even If Notice Is Deficient

By Richard K. Traub posted 02-17-2017
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In William Blanchette v. The Superior Court of Imperial County [D070545, 2/20/17] , the California Court of Appeals strictly construed the statutory requirement that a builder respond to a notice of claim of defects under the Right to Repair Act (Civil Code 895 et seq.) (the Act) within 14 days of receipt even where the notice did not sufficiently identify the alleged defects. This, according to the court, is because the purpose of the Act is to encourage prompt pre-litigation resolution of claims. The plaintiff, William Blanchette, is the owner of 1 of 28 homes constructed by GHA Enterprises, Inc. (GHA). On February 2, 2016, Blanchette served GHA ...
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Eleventh Circuit Holds Employee Entitled to Permissive User Status Despite Violation of Company Policy

By Richard K. Traub posted 02-14-2017
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In its recent decision in Great American Alliance Ins. Co. v. Anderson , 2017 U.S. App. LEXIS 2277 (11 th Cir. Feb. 8, 2017), the United States Court of Appeals for the Eleventh Circuit, applying Georgia law, had occasion to consider whether an employees violation of company policy regarding operation of a vehicle while impaired eliminated his status as an insured permissive user under the employers commercial auto policy. Great Americans insured, Looper Cabinet Co. (LLC), allowed its employee, Brian Hensley, to drive a pickup truck for work and personal reasons, including transportation to and from a lake house owned by Mr. Hensleys father. At issue ...
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California Court Holds Continuous Progressive Injury Exclusion Applicable to Construction Defect Claim

By Richard K. Traub posted 02-07-2017
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In its recent decision in Saarman Construction, Ltd. v. Ironshore Specialty Ins. Co ., 2017 U.S. Dist. LEXIS 13633 (N.D. Cal. Jan 31, 2017), the United States District Court for the Northern District of California had occasion to consider the application of a continuous and progressive injury exclusion in the context of a construction defect claim. The underlying suit arose out of Saarmans work as a general contractor at a condominium complex performed in 2006 and 2007 to address pre-existing water intrusion problems. In 2011, a lessee of one of the units sued the unit owner, claiming that her unit suffered from several defects, including mold, plumbing ...
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11th Circuit Affirms Decision that Insurer Is Not Estopped from Denying Pre-Tender Costs

By Richard K. Traub posted 01-30-2017
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In EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am ., No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), the Eleventh Circuit had occasion to consider whether an insurer had an obligation to reimburse its insured for pre-tender defense costs that were voluntarily assumed by the insured, and whether the insurers disclaimer of such costs is governed by Florida Claims Administration Statute, Fla. Stat. 627.426(2). Travelers insured EmbroidMe.com under a general liability policy that covered, among other things, web-site injuries. The underlying copyright litigation triggered Travelers indemnification and defense obligations, but EmbroidMe.com ...
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2017 USLAW Workers' Compensation Practice Group Business Meetings

By Fred L. Hubbs posted 01-27-2017
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Everyone: We are just a few weeks away from the USLAW Meetings in Dallas and this is friendly reminder about a few important deadlines, including the January 30 hotel room block reservation deadline. As previously mentioned, our dedicated practice group meeting is an important planning session for our group as it will set the direction for us for the coming year for things like conference programming and our practice group client database in particular. For those staying the night of the meeting, we will organize a dinner for those interested and perhaps invite a few Dallas-based clients. I do hope your schedule will permit you to come in for this meeting. ...
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