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Insurance policies invariably require insureds to submit timely written notice of a “Claim” made by third parties to obtain coverage from the insurer.  A recent decision from the United States District Court for the Southern District of New York is yet another reminder that insureds need to closely analyze what constitutes a “Claim” under their policies in order to comply with the timely notice requirement. Continue Reading Another Judicial Reminder for Policyholders to Carefully Review Policy Language and Provide Timely Notice of a “Claim”

In several states, an insured that prevails in a coverage dispute against its insurer is entitled to statutory “penalty interest” added to the amount owed by the insurer.  A June 8, 2022 decision from the United States District Court for the Western District of Michigan illustrates the importance of meeting the “proof of loss” requirements of such statutes.

In Alticor Global Holdings, Inc. v. American International Specialty Lines Insurance Co., an insured filed an action against its insurer after the insurer refused to reimburse the costs of defending and ultimately settling copyright infringement claims asserted against the insured.  The District Court found that the insured was entitled to coverage under an Internet and Network Security Insurance Policy for $24 million in costs incurred in the underlying lawsuit and then considered the amount of interest that should be paid by the insurer on top of the breach of contract damages awarded to the insured.Continue Reading Recent Michigan Court Ruling Reinforces Importance of Providing Prompt “Proof of Loss”

In an Aug. 12, 2021, opinion, the Delaware Chancery Court examined two seller-friendly purchase agreement provisions and held that public policy and Delaware law prevented the seller from invoking the provisions to block well-pled allegations of fraudulent inducement.

Online HealthNow, Inc. and Bertelsmann, Inc. v. CIP OCL Investments, LLC, et al. addressed allegations that the stock purchase agreement at issue was obtained through false and fraudulent statements contained in the agreement made by the seller and related entities. The agreement contained two provisions that were the focus of the court’s opinion. The first, the agreement’s survival clause, stated that all of the representations and warranties in the agreement would “terminate effective as of the Closing and shall not survive the Closing for any purpose,” effectively ending the statute of limitations period at the time of closing. The second, the non-recourse provision, noted that claims arising out of the purchase agreement could be asserted only against the parties to the agreement itself.Continue Reading Delaware Court Holds Parties Cannot Negotiate Away Fraudulent Inducement Claims

On Jan. 15, 2021, a New York state court judge issued an opinion denying an insurer’s motion to dismiss a claim for coverage under a representations and warranties insurance (RWI) policy in WPP Group USA, Inc. v. RB/TDM Investors, LLC et al. More specifically, the court rejected the insurer’s argument that the claim was subject to certain exclusions under the policy and ordered the parties to proceed with discovery.

The court’s decision is interesting in several respects — not the least of which is that judicial opinions relating to RWI policies are quite rare. RWI policies are generally purchased by transactional buyers seeking to guard against misrepresentations made by sellers during the acquisition process without having to seek recourse against the sellers themselves for any potential losses. Typically, these policies provide that any disputes concerning an insurer’s coverage or payment obligations are to be resolved in confidential arbitration proceedings that do not generate public opinions. The RWI policy at issue in WPP Group, however, provided the insured with the option of bringing claims regarding the policy in either confidential arbitration or in New York state or federal courts.Continue Reading Arbitration vs. Litigation: More Than Just a Preference for RWI Policyholders