Court: “Literal” Reading Of Insurance Statute Is “Poppycock”

January 23, 2023
Patrick M. McDermott & Kevin V. Small - Hunton Insurance Recovery Blog

The Fourth Circuit recently held that a “literal” interpretation of a North Carolina insurance law was “poppycock.” Whitmire v. S. Farm Bureau Life Ins. Co., No. 21-1643 (4th Cir. 2022). The case involved a North Carolina statute that required an insurer to provide notice by mail addressed to the insured’s “last known post-office address in this State.” The person that was to receive notice under the statute had lived in North Carolina but then moved to South Carolina. The insurer provided notice at the person’s South Carolina address. It did not provide notice at the person’s last known address in North Carolina. So the beneficiary of the life insurance argued that notice did not meet the North Carolina statute because it was not provided at “last known post-office address in this State,” i.e. North Carolina.

Reprinted courtesy of Patrick M. McDermott, Hunton Andrews Kurth and Kevin V. Small, Hunton Andrews Kurth
Mr. McDermott may be contacted at
Mr. Small may be contacted at

Top 10 Insurance Cases of 2022

January 17, 2023
Jeffrey J. Vita, Grace V. Hebbel & Michael A. Amato - Saxe Doernberger & Vita, P.C.

Federal and state courts tackled a myriad of interesting insurance-related issues this past year. Over two years into the pandemic, we saw the first state high court decision regarding whether property policies provide coverage for COVID-19 losses. Elsewhere, as our country continues to grapple with the opioid epidemic, courts are confronted with whether commercial general liability policies provide coverage for various opioid-related damages. In a very interesting policyholder friendly decision, the Supreme Court of Washington found a claims-made CGL policy to be violative of public policy. The Court of Appeals of North Carolina was tasked with evaluating coverage for a disease contracted through a hot tub display. And - on the more mundane side, yet still important for the industry - the Texas Supreme Court refined its application of the eight-corners rule. These are merely a sampling of the impactful insurance decisions rendered in 2022.

Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C., Grace V. Hebbel, Saxe Doernberger & Vita, P.C. and Michael A. Amato, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at
Ms. Hebbel may be contacted at
Mr. Amato may be contacted at

Mercury Insurance Recognized as 'Best of the Southland' by Los Angeles Times' Readers

January 9, 2023
Mercury Insurance

LOS ANGELES, Calif. (November 29, 2022) – Mercury Insurance (NYSE: MCY) has been recognized by Los Angeles Times readers as the overall best insurance service in the Southland.

The Los Angeles Times invited readers to nominate their favorite businesses for the Times' "Best of the Southland" awards for 2022. Businesses and services throughout the Greater Los Angeles area were rated throughout five regional zones. More than 5,000 businesses in 85 categories were nominated. Mercury won the overall in the Best Shopping and Services category for insurance. Mercury also won three "Best of Southland" awards for the areas of Orange County, San Gabriel Valley/Inland Empire and Westside/Downtown/East Los Angeles, and achieved two finalist distinctions for the San Fernando Valley/Ventura and South Bay/South Los Angeles/Southeast Los Angeles/Long Beach communities.

About Mercury Insurance
Mercury Insurance (NYSE: MCY) is a multiple-line insurance carrier offering personal auto, homeowners, and renters insurance directly to consumers and through a network of independent agents in Arizona, California, Illinois, Georgia, Nevada, New Jersey, New York, Oklahoma, Texas and Virginia, as well as auto insurance in Florida. Mercury also writes business owners, business auto, landlord, commercial multi-peril and mechanical protection insurance in various states.

Even Sophisticated Policyholders Can Miss a Simple Claims Notice Requirement

January 4, 2023
Leena Phaguda - Saxe Doernberger & Vita, P.C.

Following the basic notice requirements to provide timely and adequate notice of a claim contained in all insurance policies seems elemental to triggering an insurer’s duty to defend a policyholder. However, even sophisticated insureds can sometimes miss the simple notice provisions in their policies. This is why all insureds, no matter the level of their legal knowledge, need to pay close attention as to when and how to place their insurance companies on notice of a potential claim. If not, policyholders can easily lose out on significant coverage.

Harvard’s failure to meet this simple notice requirement lost the school $15 million of insurance coverage from its excess carrier for a claim stemming from a 2014 lawsuit filed against Harvard alleging unconstitutional admission policies. After the admission case was filed, Harvard tendered its defense to its primary insurer, AIG, with a policy limit of $25 million. Harvard additionally maintained an excess policy with Zurich with coverage of $15 million.

Ms. Phaguda may be contacted at

Whose Burden is It Anyway: All Risk vs. Covered Peril Policies

December 26, 2022
William S. Bennett - Saxe Doernberger & Vita, P.C.

First-party insurance coverage is typically structured on the basis of one of two types of insuring agreements: “All Risks” and “Covered Peril.” While the difference may seem innocuous, the ramifications of having one versus the other can be monumentally important in a disputed claim scenario. For the reasons discussed in this article, we recommend that, in almost every situation, the insured should aim to secure an “all risks” policy form.

What is the difference?
In an “all risks” policy form, the insuring agreement of the policy’s main coverage will typically state something to the effect of, “this policy insures all risks of direct physical loss or damage, except as excluded herein.” In other words, the insurance company is assuming “all risks” of physical loss and is not outright limiting the coverage to specific causes of loss.

Mr. Bennett may be contacted at

A Cybersecurity Primer for Contractors: Threats, Liability and Insurance

December 18, 2022
James T. Dixon - Construction Executive

One of the most publicized security breaches was the 2013 hack of Target’s payment and security system. What's not as well known is that access credentials were stolen from an HVAC contractor that was working with Target. The data connection that was accessed was being used for electronic billing, contract submissions and project management. An employee of the HVAC company fell victim to a phishing attack by clicking on an email that contained malware. The rest is cybersecurity history.

While the construction industry does not generally face the same information security regulatory requirements as the healthcare and financial sectors, it does face the same threats. At a time when remote work is increasing risks, many sources report that the construction industry lags behind others in bolstering its security systems. That lack of security can lead to liability for significant losses.

Reprinted courtesy of James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

It’s Not You, It’s Them: Dealing With Insurance Coverage Denials

December 13, 2022
Latosha M. Ellis & Olivia G. Bushman - Hunton Insurance Recovery Blog

If your company has an emergency response plan—and it likely does—filing an insurance claim needs to be included in that plan. But what if your insurer stretches out the consideration process by making continuous, costly information requests without making a coverage determination? Or decides to deny coverage under one clause of the policy, but accept coverage under another? Or outright denies coverage? Policyholders should be prepared to comply with policy obligations (which may vary depending on the controlling state law), such as the sharing of relevant information and documentation or participating in arbitration or a mediation prior to suing the insurer, but also understand the responsibilities insurers have to policyholders when a claim is tendered.

Reprinted courtesy of Latosha M. Ellis, Hunton Andrews Kurth and Olivia G. Bushman, Hunton Andrews Kurth
Ms. Ellis may be contacted at
Ms. Bushman may be contacted at

Physical Alteration of Insured Property not Required for Coverage Under a Communicable Disease Coverage Extension

December 5, 2022
Gary L. LaHendro - Haight Brown & Bonesteel LLP

Physical Alteration of Insured Property is not Required for Coverage Under a Communicable Disease Coverage Extension Where “Direct Physical Loss or Damage” Under the Terms of the Insurance Policy Includes Costs Incurred by an Insured to Disinfect, Mitigate or Monitor the Effects of a Communicable Disease at an Insured Property

In Amy’s Kitchen, Inc. v. Fireman’s Fund Insurance Company (No. A163767), filed October 4, 2022, the Court of Appeal of the State of California, First Appellate District held physical alteration of insured property was not required for coverage under a communicable disease coverage extension or a loss avoidance or mitigation coverage extension where “direct physical loss or damage” under the terms of the property insurance policy includes necessary costs incurred by an insured to disinfect, mitigate or monitor the effects of a communicable disease.

Mr. LaHendro may be contacted at

The Impact of the Russia-Ukraine Conflict on the Insurance Industry, Part Two: Availability of Insurance

November 28, 2022
Michael Kopit & Natalya Samsonova - Lewis Brisbois

Washington D.C. (September 28, 2022) - In part one of this three-part series, we focused on the losses and coverage issues that arose in the insurance industry as a result of the Russia-Ukraine conflict. In part two, we focus on a key developing issue for the insurance industry: the availability of insurance to Russian corporations and/or companies doing business with or in Russia.

A Drastic Decline in Available Insurance
There has been a drastic decline in recent months of available insurance policies for companies doing business in Russia or with Russian corporations. One reason for the decline is the amount of sanctions imposed on Russia. Because of the vast number of sanctions – and the fact that there is a lack of harmony among countries regarding sanctions – insurers must err on the side of caution when considering whether to issue new policies of insurance or renew existing ones. This means that insurers may not sign policies with a prospective insured even if it operates in sectors not covered by sanctions.

Reprinted courtesy of Michael Kopit, Lewis Brisbois and Natalya Samsonova, Lewis Brisbois
Mr. Kopit may be contacted at
Ms. Samsonova may be contacted at

Is New Jersey's Unfair Claim Settlement Practices Act Obsolete?

November 21, 2022
Bethany L. Barrese - Saxe Doernberger & Vita

Most states have some version of an Unfair Claim Settlement Practices Act (UCSPA), which is intended to prohibit insurers from engaging in unfair claims settlement practices. While the UCSPA is based off a model act, there are differences from state to state. For example, New Jersey’s UCSPA does not allow a private cause of action against an insurer – instead, the Commissioner of Banking and Insurance retains sole enforcement authority under the UCSPA. In comparison, Nevada’s version of the UCSPA creates a private cause of action for damages incurred as a result of a statutory violation.

The question this article addresses is whether counsel representing policyholders should consider the merits of pursuing a claim under New Jersey’s UCSPA, especially since a private cause of action is not permitted under the statute. Is the UCSPA obsolete from the standpoint of policyholders? This author believes the answer is “not entirely” and that coverage counsel should still consider the statute when contemplating a bad faith claim against an insurance company.

Ms. Barrese may be contacted at

What is Contractual Risk Transfer?

November 15, 2022
Saxe Doernberger & Vita, P.C.

Every commercial property owner, developer, general contractor, subcontractor, and vendor should understand the concept of contractual risk transfer and how it might affect its company and projects.

Contractual Risk Transfer Defined
With any kind of commercial property development, the parties involved face risk. Whether you’re the owner, general contractor, or some other entity involved in the project, there’s always the risk that accidents, injuries, damages, negligence, bad weather, or some other act of God could lead to increased costs and liability exposure. Often, insurance covers these risks. But contractual risk transfer serves as another useful tool that can protect you and the project.

Concealment Or Fraud Provision In Insurance Policy

November 7, 2022
David Adelstein - Florida Construction Legal Updates

It is common for insurance policies to have a concealment or fraud provision that ultimately says the policy is void if the insured engaged in fraudulent conduct, intentionally concealed or misrepresented material facts, or made false material statements. In a nutshell, lying is bad, which includes intentionally withholding material facts.

An insured may make misrepresentations during the insurance application process. Or, an insured may make misrepresentations after a loss occurs, referred to as the post-loss context. The misrepresentations require different burdens of proof.

Mr. Adelstein may be contacted at

Contra Proferentem: Haunting Insurers for Years to Come

November 1, 2022
Avery J. Cantor - Saxe Doernberger & Vita

Contra proferentem is one of the few Latin phrases that lawyers remember from law school, in the ranks with res ipsa loquitur, prima facie, and ipso facto. Contra proferentem literally means “against the offeror” and the doctrine is used when courts interpret ambiguous contract language. The contra proferentem doctrine stands for the notion that if the meaning of a contract clause or word is ambiguous, it should be interpreted against the party that drafted the contract. Although the doctrine seems straightforward, its implementation is far from simple.

Although the doctrine has historically been used in many different types of contracts, it is most often used to interpret insurance policy language in disputes between insurers and policyholders.

Mr. Cantor may be contacted at

Ongoing Product and Labor Shortages Affect Construction Insurance Policies

October 24, 2022
John Lack - Construction Executive

With labor shortages and limited availability of construction materials due to ongoing supply chain disruptions, construction businesses are facing unexpected consequences from these ongoing challenges—one being the potential for increased insurance policy costs.

Hiring untrained workers or using lower-quality materials due to product shortages may lead to unintended risks that can impact construction businesses’ insurance policies far into the future. Here are how these two challenges can potentially impact commercial insurance premiums, and the steps companies can take to ensure their business is protected.

Reprinted courtesy of John Lack, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Insurance Best Practices for Working With Subcontractors, Seasonal and Temporary Employees

October 17, 2022
John Lack - Construction Executive

The labor shortage is one of the biggest challenges contractors are facing today. According to the 2020 Construction Outlook Survey, more than eight in 10 construction firms report difficulty filling positions and more than half believe the problem will continue into next year. Failing to adequately staff a jobsite leads to numerous challenges, including turning down work, postponing projects, overworked employees, quality control issues and increased costs for the company.

Often, construction businesses look to pull in seasonal or temporary labor as a stopgap to keep projects progressing amid industry-wide labor challenges. Demand for seasonal and temporary employees in the construction industry has only increased. While tapping this workforce can seem like a perfect solution to help construction businesses meet growing demands, this approach creates unique challenges in ensuring jobsites are adequately insured. When hiring seasonal or temporary employees, construction businesses will benefit from considering the following.

Reprinted courtesy of John Lack, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Hurricane Ian likely to bring incurred losses in US fire and natural hazards market to near record level, says GlobalData

October 10, 2022

Following the news that Hurricane Ian, a devastating category four storm, has swept through Florida overnight; Benjamin Hatton, Associate Insurance Analyst at GlobalData, a leading data and analytics company, offers his view:

"Hurricane Ian comes after a series of adverse weather events in the US during 2022 and, as one of the strongest hurricanes the region has felt in years, it is likely to cause billions of dollars' worth of losses. Combined with the losses from earlier in the year, Hurricane Ian is likely to leave insurers with their largest incurred loss since at least 2017 when a series of devastating hurricanes and wildfires took their toll on the country. That year incurred losses in the fire and natural hazards line reached almost $25 billion, with a loss ratio comfortably over 90%.

"According to GlobalData's report, 'Climate Change and its Impact on Insurance Market – Thematic Research', the US gross written premiums for fire and natural hazards insurance was over $58 billion in 2020, more than twice the amount of Japan, which was the second highest.

"As damaging as the effects of natural disasters can be, insurance uptake across the US tends to be relatively high. Insurance will continue to provide that vital safety net for both consumers and businesses in disaster-prone areas.”

Lost Income Caused by Business Interruption Due to COVID-19 Not Covered by Insurance Policy

October 3, 2022
Gary L. LaHendro - Haight Brown & Bonesteel LLP

Loss of Income Caused by a Government Mandate to Suspend Business Operations Due to the COVID-19 Virus is not Covered by a Standard Property Insurance Policy Because the Physical Presence of the Virus on Insured Property Does not Constitute Physical Loss of or Damage to the Property

In Apple Annie, LLC v. Oregon Mut. Ins. Co. (No. A163300, filed September 2, 2022 and certified for publication), the Court of Appeal of the State of California, First Appellate District held that an insured’s loss of business income, caused by a government mandate to suspend business operations due to the COVID-19 virus, is not covered by a commercial property insurance policy because the physical presence of the virus on insured property does not constitute physical loss of or damage to the insured property.

Mr. LaHendro may be contacted at

COVID-19 Claim with Multiple Occurrences Prevails on Summary Judgment

September 26, 2022
Tred R. Eyerly - Insurance Law Hawaii

The federal district court found there were multiple occurrences of property damage under a disease contamination provision in the policy. Dental Express, LLC v. Massachusetts Bay Ins. Co., 2022 U.S. Dist. LEXIS 119701 (N.D. Ill. July 7, 2022).

Dental Express operated seventy-three dental offices across nine states and the District of Columbia. All of the practices were covered by a policy issued by Massachusetts Bay. When the pandemic struck, state and local authorities nationwide issued executive orders suspending the operations of nonessential businesses. Dental Express suspended its operations to comply with these orders and consequently lost business income. It filed claims with Massachusetts Bay.

Mr. Eyerly may be contacted at

Allegations that COVID-19 Virus Lives on Surfaces Adequately Alleges Direct Physical Loss or Damage

September 18, 2022
Tred R. Eyerly - Insurance Law Hawaii

The California Court of Appeal reversed the trial court's granting of the insurer's demurrer and found the insured adequately pled a claim of direct physical loss or damage due to the presence of COVID-19. Mariana Pacific Hotel & Suites, LLC v. Fireman's Fund Ins. Co., 2022 Cal. App. LEXIS 608 (Cal. Ct. App. July 13, 2022).

Fireman's Fund issued a general property policy to the Hotel which provided coverage for direct physical loss or damage to the insured property. Business interruption coverage was extended for the actual loss of business income due to the necessary suspension of operations during the period of restoration arising from direct physical loss or damage to covered property.

Mr. Eyerly may be contacted at

What is Contractor Professional Liability Coverage?

September 12, 2022
David G. Jordan - Saxe Doernberger & Vita, P.C.

Contractor professional liability coverage insures against liability that derives from the technical aspects of a construction project – including architectural, engineering, and survey work. It is especially valuable in circumstances where the contractor has design responsibility as part of its project scope, such as in the case of “design build” projects or where “design assist” work is undertaken.

Accordingly, in the construction context, professional liability insurance, also referred to as errors and omissions (E&O) insurance, is not only important for architect, engineering, and design professionals to maintain, but it can also be a wise investment for construction contractors. This article will briefly discuss what this type of insurance covers and when you should contact an insurance coverage attorney.

Mr. Jordan may be contacted at

COVID-19 Business Interruption Claim under Environmental Policy Survives

September 5, 2022
Tred R. Eyerly - Insurance Law Hawaii

The court determined there was coverage for business interruption due to COVID-19 under an Environmental policy. Sunstone Hotel Investors, Inc. v. Endurance American Spec. Ins. Co., 2022 U.S. Dist. LEXIS 11147 (C.D. Cal. June 15, 2022).

Sunstone was a real estate investment trust that had an interest in 20 hotel properties with 10,000 guest rooms across the United States. In 2017, Sunstone purchased a "Site Environmental Impairment Liability Coverage" policy from Endurance. The policy provided $25,000,000 of coverage for business interruption losses caused by a biological agent. Coverage D provided that Endurance would pay "the Insureds' Business Interruption Losses and Extra Expenses during the Interruption Period that directly results from . . . Biological Agent Conditions . . ." There was no dispute that COVID-19 was a Biological Agent, but the parties disagreed on coverage provided under Coverage D.

Mr. Eyerly may be contacted at

COVID-19 Losses and Number of Occurrences

August 29, 2022
Adriana A. Perez & Michael S. Levine - Hunton Insurance Recovery Blog

Recently, an Illinois federal judge ruled that where government shutdown orders due to COVID-19 in different states impacted one insured, that insured suffered separate occurrences in each effected state. Dental Experts, LLC v. Massachusetts Bay Ins. Co., No. 20 C 5887, 2022 WL 2528104 (N.D. Ill. July 7, 2022).

Dental Experts LLC and other affiliated dental practices in 10 states were forced to stop nonessential operations under various government orders connected to COVID-19.

Reprinted courtesy of Adriana A. Perez, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth
Ms. Perez may be contacted at
Mr. Levine may be contacted at

Sixth Circuit Holds That Contamination Exclusion Bars Coverage for COVID-19 Losses

August 22, 2022
Jason Taylor - Traub Lieberman Insurance Law Blog

In Dana Incorporated v. Zurich American Insurance Company, Case No. 21-4150 (6th Cir. July 6, 2022), the Sixth Circuit recently addressed whether a “contamination exclusion” included within an insured’s property policy barred coverage for COVID-19 related losses. In Dana, Zurich issued an insurance policy to Dana Incorporated, a company that provided power-conveyance and energy-management solutions for vehicles and machinery. After suffering financial effects from the COVID-19 pandemic, including extra expenses and suspended operations, Dana sought coverage from Zurich under the policy. Zurich denied coverage and Dana sued. The district court dismissed Dana’s complaint, finding the policy’s “contamination exclusion” applied. The Sixth Circuit, on appeal, affirmed.

Mr. Taylor may be contacted at

Quick Note: Physical Loss or Damage Under Property Insurance Policy = Actual, Tangible Alteration to Property

August 15, 2022
David Adelstein - Florida Construction Legal Updates

In one of Florida’s first appellate opinions dealing with business interruption losses and COVID-19, the appellate court found COVID-19 was not covered under the terms of the commercial property insurance policy to cover business interruption losses. In this case, a restaurant/bar suffered losses due to emergency measures imposed by Miami Dade due to COVID-19. Such emergency measures restricted the occupancy of restaurant/bars and undeniably resulted in business interruption. Occupancy and patrons are the lifeline of restaurant/bars. So why weren’t business interruption losses covered? Because there was no direct physical loss of or damage to the property at the restaurant/bar. The appellate court, affirming the trial court, explained direct physical loss of or damage to the property means there needs to be actual tangible alteration to property. COVID-19 did not cause actual tangible alteration to property which caused the restaurant/bar to suffer business interruption losses. Moreover, any COVID-19 particles that got on property could be cleaned. The analogy the appellate court provided, as cited here, is as follows: “The difference “between [the restaurant/bar’s] loss of use theory and something clearly covered—like a hurricane—is that property did not change. The world around it did. And for the property to be useable again, no repair or change can be made to the property—the world must change.”

Mr. Adelstein may be contacted at


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