Last time we visited on October 8, we were gripped by the fascinating 2nd Circuit holding in National Railroad Passenger Corp. (AMTRAK) v. Aspen Specialty Ins. Co., et al, No. 15-2358-cv, ___Fed. Appx.___ (2nd Circuit September 7, 2016). Let's keep the story going. What happened next? As we left our Amtrak heroes and heroines, they were trying desperately to bypass the $125 million flood sub-limit sinkholes which were found on a paper [...]
After Super Storm Sandy flooded Amtrak’s tunnels under the East River, the passenger railroad sought to obtain coverage under a number of all risk policies in effect at the time. It wasn’t just the obvious water damage to Amtrak’s property. Amtrak also suffered from chloride (salt) erosion of its cement and steel after the waters were siphoned off. This corrosion would necessitate replacing track infrastructure at great cost – even [...]
NEBRASKA AFFIRMS RULE OF LAW: A POLICYHOLDER'S DEFECTIVE WORK PRODUCT IS NOT A COVERED PROPERTY LOSS UNLESS ACTUAL DAMAGE OCCURS Okay. What in tarnation do you mean by that Anne Marie? (For my Dear East & West Coast Readers, "Tar-Nation" is a distinctly Midwestern place where idiots not only live, but thrive.) Here is what I mean: Damages arising out of completed work performed by the insured and its subcontractors is [...]
Like Peanut butter and Chocolate! Like Strawberries & Cream! Like Rum and Cokes at midnight on a hot summer night in the late 70's when cute boys with collar length hair who smelled faintly of Brut were driving muscle cars with one hand, taking a long drag on a Salem with the other, and searching for their favorite Eagles or Head East song on the A.M. radio station while I was happy in the passenger seat wearing [...]
The phrase "arising out of" is an industry term of art consistently used in insurance policy forms. But what does it really mean? Both underwriters and courts answer that question differently. An underwriter would say that the phrase is intended to mean those acts or omissions of the policyholder that are explicitly covered by the terms of the policy. There must be a nexus between the act and coverage. Not just a tenous connection, [...]
I often discuss the role of the courts in broadening coverage for additional insureds in a Commercial General Insurance (CGL) policy. Here is another case where a court has extending coverage – probably well beyond what the underwriter intended at the time the policy was issued. In the case of Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 666 (Tex. 2008), ATOFINA contracted with Triple S Industrial [...]
Insurance policies often carry a small clause that contains big language. It is called a concurrent clause provision. The words can bar a policyholder’s claim for flood or wind damage if both of those events together cause a loss. Or if one of those events is specifically excluded from coverage, the insurance company doesn’t have to pay a cent. Ouch. Because this is a source for much insurance litigation [...]
