Plastics Engineering Co. v. Liberty Mutual Ins. Co., ____ N.W.2d ____, 2009 WL 212079 (Wis. Jan. 29, 2009)
An insurance company issued a number of general liability insurance policies to a named insured. The insured was sued for asbestos-related injuries spanning many years. The Wisconsin Supreme Court, in a case of first impression, held that once the policy was triggered, the insurance company was required to defend the lawsuit in its entirety and pay for “all sums” up to the policy limits that the insured was obligated to pay, including damage that occurred “partly before and partly within the policy period.” The Wisconsin Supreme Court concluded that the policy language did not support a pro rata allocation of damages.
The insurance company’s policy contained no language limiting the insurer’s obligation to a pro rata share. Rather, the policy specifically provided that the insurer was obligated to pay for injury that occurred “partly before and partly within the policy period.”
Thomas R. Schrimpf, a partner in Hinshaw & Culbertson LLP’s Milwaukee office, filed an amicus curiae brief in this case on behalf of the Wisconsin Insurance Alliance.
Contact for more information: Thomas R. Schrimpf
CGL; Number of Occurrences; Aggregate Burden of Proof
Addison Ins. Co. v. Fay, ___ Ill.2d ____, 2009 WL 153859 (Jan. 23, 2009)
An insurer acknowledged coverage in a claim by two decedents who died in an unwitnessed accident in quicksand. The Illinois Supreme Court held that the burden was on the insurer to demonstrate the application of a single occurrence limit rather than the aggregate coverage of two limits and determined that in this case there were two occurrences under the terms of the insurance policy.
Contact for more information: Thomas M. Hamilton
Duty to Defend; CGL; Personal Injury; Advertising Injury; Disparagement
E.piphany, Inc. v. St. Paul Fire & Marine Ins. Co., ____ F. Supp. 2d ____, 2008 WL 5396889 (N.D. Cal. Dec. 2008)
In a breach of a duty to defend case, a United States district court located in California followed Illinois Law in holding that a policyholder who is alleged to have misrepresented the quality of its products relative to other unnamed products engages in disparagement by inference which must be defended under the personal injury protection of its commercial liability policy even though the underlying plaintiffs products were not named or referred to in the disparagement.
Contact for more information: Christopher J. Borders
Res Judicata; Declaratory Judgment; Multiple Suits From Identical Facts
Andrew Robinson International, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48 (1st Cir. 2008)
A policyholder prevailed in an initial action against an insurer for first party coverage of a loss related to the indoor discharge of lead. Finding that both the Restatement (Second) of Judgments and the Massachusetts Declaratory Judgment Statute anticipate the possibility of further proceedings after the entry of a declaratory judgment, the court held that res judicata would not preclude second suit by the policyholder seeking damages for bad faith and unfair trade practices against the same insurer. This case contains an excellent review of this issue from various states.
Contact for more information: Joseph J. De Hope, Jr.