Latest News

8 Jun, 2015

RAILROAD ADDITIONAL INSURED COVERAGE

2018-04-23T20:59:42-05:00June 8th, 2015|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Midwest Insurance Law Guide|

 KEEPS CHUGGING ALONG... Railroads have been asking for additional insured coverage from their vendors, contractors and lessees for some time now.  The body of case law challenging that coverage is slowly building.  In the railroads' favor.  Let's take a look together at the most recent case for some additional nuggets of insight. In Norfolk Southern Ry Co., v. National Union Fire Ins. of Pittsburgh, PA, 999 F. Supp. 2d 906 (U.S. Dist. [...]

16 Jan, 2015

Insurance News Flash: MANURE IS A POLLUTANT!

2018-04-23T20:59:42-05:00January 16th, 2015|Commercial General Liability (CGL), Midwest Insurance Law Guide, Pollution exclusion|

This should be no surprise to my dear readers! The Wisconsin Supreme court has recently ruled that manure contamination is not a covered loss under the standard CGL policy.  In Wilson Mutual Ins. Co. v. Falk, 2014 WI 136 (Wis. 2014),  the court ruled that manure runoff, which had contaminated several nearby drinking water wells, was a pollutant and therefore excluded from coverage. The Wilson policy covered losses for property damages and bodily injury.  [...]

29 Oct, 2014

2 Ways An Insurer Can Be Liable for Bad Faith

2018-04-23T20:59:42-05:00October 29th, 2014|Bad faith, Commercial General Liability (CGL), Midwest Insurance Law Guide|

1.  By failing to provide the policyholder with a proper and effective reservation of rights letter. 2.  By failing to handle the claim in good faith, even if coverage is later denied.  I agree with you.  Both situations are compelling, my dear Readers.  Nonetheless to protect your vulnerability we shall review only Rule #1 for today.  It is considered prudent in polite society to refrain from biting off more insurance meat than one can chew in a [...]

11 Jul, 2014

2 WAYS TO GET CGL INSURANCE COVERAGE – WITHOUT BUYING A POLICY

2018-04-23T20:59:42-05:00July 11th, 2014|Additional insured coverage, Commercial General Liability (CGL), Midwest Insurance Law Guide|

We are digging deep again today, dear Readers, into insurance coverage issues about which I think you ought to know.  How else am I going to train you to become scintillating cocktail party guests?  Everyone will be clamoring for your thoughts on this subject.  Trust me.   2 WAYS TO GET CGL INSURANCE COVERAGE - WITHOUT BUYING A POLICY 1.  As an additional insured by endorsement.   Under the standard ISO endorsement form, a [...]

11 Jun, 2014

Contribution Among Insurers – Basic Principles

2018-04-23T20:59:43-05:00June 11th, 2014|Commercial General Liability (CGL), Midwest Insurance Law Guide|

Hot off the presses!  A recent Nebraska case, American Family Mut. Ins. Co. v. Regent Ins. Co., 288 Neb. 25 (May 2, 2014) provides us with many coverage nuggets to digest in the coming weeks!  We begin with a basic tenet that is rarely discussed: Contribution is allowed between two insurers who insure the same policyholder and the same risk. Contribution is an equitable remedy.  This means that a court will apply [...]

8 Feb, 2014

3 COURTS DECIDE: ARE JUNK FAX LOSSES COVERED?

2018-04-23T20:59:43-05:00February 8th, 2014|Advertising injury, Commercial General Liability (CGL), Midwest Insurance Law Guide|

BOTTOM LINE: In Missouri - Yes! In Illinois - Yes! In the 7th Circuit - No! First, let's look at Missouri.  In Columbia Cas. Co. v. HAIR Holdings, LLC, 411 S.W.3d 258 (Mo. 2013), a marketing company sent over 12,0000 junk fax advertisements to various households.  A private citizen brought a class action against the marketing company under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227 et seq and the parties settled.  The [...]

5 Nov, 2013

INSURANCE POLICY RISK TRANSFERENCE – 2 WAYS

2018-04-23T20:59:44-05:00November 5th, 2013|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Indemnity clauses, Midwest Insurance Law Guide, Risk transference|

How does a policyholder enforce a contract in which one party assumes the risk of another?    Let's break it down two ways: By additional insured (AI) endorsement.  AI is an insured. Insurer owes AI fiduciary duties. AI must follow policy terms for coverage. AI does not need to have a written contract with Named Insured for coverage to apply. In most states, AI coverage will include negligent acts of AI in addition to [...]

12 Oct, 2013

WHAT DOES “ARISING OUT OF” REALLY MEAN?

2018-04-23T20:59:44-05:00October 12th, 2013|Commercial General Liability (CGL), Midwest Insurance Law Guide, Property and casualty|

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, [...]

18 Sep, 2013

Contractual Liability Coverage v. Additional Insured Endorsement

2018-04-23T20:59:44-05:00September 18th, 2013|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Midwest Insurance Law Guide|

Contractual liability coverage is excluded in a standard CGL policy. However the policy makes an exception - or gives coverage back - to Named Insureds who assume the tort liability of another party in an "insured contract" to pay for damages that occur after the policy is issued.  (See, Section I, ¶2. Exclusions, B. 2.)   An "insured contract" excludes operations within 50 feet of any railroad operations, but this coverage can be added [...]

3 Aug, 2013

BELT + BRACES = RISK TRANSFERENCE

2018-04-23T20:59:44-05:00August 3rd, 2013|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Midwest Insurance Law Guide, Risk transference|

The best way to protect a client from legal liability and to transfer risk to another company is the belt and braces approach.  A "belt" is a well crafted indemnity clause where one party (indemnitor) promises to hold the other (indemnitee) harmless for any and all losses arising out of, or connected to, the indemnitor's work. An example is when a sub-contractor promises to hold a contractor harmless for loss or damages which occur when [...]

24 May, 2013

4 TIMES WHEN YOU SHOULD ARGUE FOR YOUR CHOICE OF INSURANCE COUNSEL

2018-04-23T20:59:44-05:00May 24th, 2013|Commercial General Liability (CGL), Complex insurance coverage, Midwest Insurance Law Guide, Product liability, Railroad indemnity|

Sometimes a policyholder can insist upon his own choice of defense counsel.  And submit the bill to the carrier to pay.  I highly recommend this practice, especially in cases where a sophisticated defense is needed such as railroad, products liability, and airplane lawsuits.  Here are four situations when choice of counsel is warranted: 1.     The insurer has waived its right to select counsel.  Courts are almost universal in finding a conflict of interest arises  [...]

20 May, 2013

ESOTERIC BUT INTERESTING: Climate Change Coverage

2018-04-23T20:59:44-05:00May 20th, 2013|Commercial General Liability (CGL), Environmental pollution coverage, Midwest Insurance Law Guide|

{This is a periodic column on unique, nerdy and fascinating questions posed by my fastidious readers.  If you have a burning insurance or indemnity issue that you want me to address, drop me a line.  I will research and write about it in a future post.}    Does a standard CGL policy provide coverage for climate change related occurrences? Not yet. A seminal case recently discussed this narrow issue for the first [...]

17 Mar, 2013

POLLUTION IS NOT COVERED – AND WE (MAYBE) MEAN IT THIS TIME!

2018-04-23T20:59:45-05:00March 17th, 2013|Commercial General Liability (CGL), Environmental pollution coverage, Midwest Insurance Law Guide, Pollution exclusion|

♣WE ARE GREEN TODAY FOR ST. PATRICK’S DAY!♣      We can fairly sum up the history of pollution insurance coverage with one word: confusion.  This is because underwriters and ISO forms have made it pretty clear that almost all pollution and environmental losses are not covered; yet courts have found creative ways to insist that they are a covered loss.        This push and pull has left most of us confused as to whether or not it [...]

14 Mar, 2013

HOW TO GET INDEMNITY IN A CONSTRUCTION CONTRACT

2018-04-23T20:59:45-05:00March 14th, 2013|Additional insured coverage, Commercial General Liability (CGL), Construction liability, Contract liability coverage, Indemnity clauses, Midwest Insurance Law Guide|

Most Midwest states have specific statutes that bar one party from asking for indemnity from another party in a construction related contract.  Iowa, Kansas and Missouri do not.  However, Nebraska, North Dakota, South Dakota and Minnesota do. All parties to any contract that involves any type of construction or design must be aware of these statutes.  If not, your AIA or other contract provisions on indemnity may not be upheld or enforceable in a court of law.  This is [...]

11 Mar, 2013

INSURANCE Fun Facts: Or Suggested Chatter For Your Next Cocktail Party

2018-04-23T20:59:45-05:00March 11th, 2013|Commercial General Liability (CGL), Midwest Insurance Law Guide|

Of course I say this in jest, for doesn't everyone think that insurance is dry, boring and dull? Well I for one don't!  My friends and family tease me incessantly about this Blog, my legal work, and how a sentence of two in a policy can get me all riled up for either the policyholder or the insurer, depending upon the cause.  Words are our inventory in this industry.  How can [...]

7 Mar, 2013

WHAT RAILROADS SHOULD KNOW ABOUT BEING AN ADDITONAL INSURED BY CONTRACT

2018-04-23T20:59:45-05:00March 7th, 2013|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Indemnity clauses, Midwest Insurance Law Guide, Railroad endorsement, Railroad indemnity|

Railroads can be covered for losses caused in whole or in part by a contractor.  If a railroad is added to the contractor’s Commercial General Liability (CGL) insurance policy as an additional insured, all losses which arise out of the contractor’s work should be covered. The case of Cont’l Cas. Co. v. Auto-Owners Ins. Co., 238 F.3d 941, 944 (8th Cir. 2000) explains this concept of risk transference.  There, Burlington Northern R.R. Co. contracted with [...]

4 Mar, 2013

NEW CGL POLICY LANGUAGE EFFECTIVE 2013

2018-04-23T20:59:45-05:00March 4th, 2013|Commercial General Liability (CGL), Insurance contract, Midwest Insurance Law Guide|

ISO has issued new Commercial General Liability (CGL) forms and endorsements that are operative as of April 2013.   Many of these new policy provisions will affect our readers.   Some take away coverage, others add more, and a few new ISO provisions set forth clarification of the meaning of existing forms. I will periodically discuss in the Guide how these new provisions change coverage in future policies.  Many states have already adopted these changes, including [...]

28 Feb, 2013

LATE NOTICE TO AN INSURANCE COMPANY IS NO BAR TO COVERAGE

2018-04-23T20:59:45-05:00February 28th, 2013|Commercial General Liability (CGL), Midwest Insurance Law Guide|

All policies contain a provision which tells the policyholder how to inform the insurance company about a loss.   The provisions are called “notice of loss” clauses.  They are considered a condition precedent to payment under the policy.  A condition precedent is an act that must occur before indemnity will arise under the insurance contract.  In other words, the policyholder must follow the notice of loss requirements before he will get paid. Courts, however, are not so firm [...]

25 Jan, 2013

EXTENDING ADDITIONAL INSURED COVERAGE BY COURT OPINION

2018-04-23T20:59:45-05:00January 25th, 2013|Additional insured coverage, Commercial General Liability (CGL), Complex insurance coverage, Contract liability coverage, Indemnity clauses, Insurance contract, Midwest Insurance Law Guide, Property and casualty|

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 [...]

22 Jan, 2013

MUTUAL WAIVER OF SUBROGATION CLAUSES

2018-04-23T20:59:45-05:00January 22nd, 2013|Commercial General Liability (CGL), Complex insurance coverage, Construction liability, Construction subrogation, Midwest Insurance Law Guide, Mutual waivers|

Because they are more and more commonly used, it is worth our time to look into these clauses and understand how they affect both the policyholder and the insurance company.  Let’s start with discussing what these clauses mean.    What is a mutual waiver of subrogation clause?  These clauses are commonly found in construction and landlord tenant contracts.  The language insists that the parties to the contract mutually agree to waive [...]

4 Jan, 2013

WHO IS AN ADDITIONAL INSURED?

2018-04-23T20:59:45-05:00January 4th, 2013|Additional insured coverage, Commercial General Liability (CGL), Contract liability coverage, Indemnity clauses, Midwest Insurance Law Guide|

Adding another company as an Additional Insured under your own Commercial General Liability (CGL) policy is a common practice.  The addition protects that other entity against your company’s negligence.  The coverage is almost always limited to “your” work, meaning the work being performed by the Named Insured, not the Additional Insured. This is commonly done in conjunction with an indemnity agreement between the parties.   Additional Insured status is a method [...]