Commercial General Liability

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When a general contractor or project owner tenders a claim under a subcontractor’s Commercial General Liability (CGL) policy for additional insured coverage, the insurer’s first basis for denying coverage is often to argue that the CG 20 10 endorsement covers only the additional insured’s vicarious liability for the named insured’s negligence, and that any independent fault on the additional insured’s part extinguishes coverage entirely. However, the endorsement’s text and the weight of judicial authority suggest otherwise. This article examines the “caused, in whole or in part, by” language that ISO has included in every edition of its CG 20 10 endorsement since July 2004, traces the key judicial decisions interpreting that language, and explains why a national consensus has develop that rejects the vicarious-liability-only limitation that insurers continue to press.

Continue Reading The CG 20 10 Endorsement and the Fight Over Additional Insured Coverage on Construction Projects

When private equity fund managers think about insurance, they usually think of Representations & Warranties Insurance (“RWI”).  That makes sense—RWI covers representations baked into the deal itself that are front of mind when buying and selling portfolio companies (“PortCos”).  But once a deal closes and a PortCo continues operations under new PE ownership, a whole new set of operational issues unrelated to pre-closing representations can surface, giving rise to potential claims under a host of different lines of insurance, including directors and officers (“D&O”), errors and omissions (“E&O”), cyber, crime/fiduciary, general/limited partner (“GP/LP”), commercial general liability (“CGL”), and property policies, among others.  To make matters worse, coverage gaps between policies issued at the fund level and the PortCo level, finger-pointing between insurers, lapsed policies, and inadequate coverage can result in substantial financial losses for the PE Fund and PortCo alike.

Continue Reading Non-Deal Exposure: Practical Tips for Enhancing Insurance Coverage For Private Equity Funds and Portfolio Companies

On January 27, 2026, the Delaware Supreme Court issued a significant pro-policyholder decision affirming that directors and officers (“D&O”) insurers must cover a $28 million settlement paid by Harman International Industries Inc., to resolve stockholder litigation arising from its multi-billion dollar sale to Samsung Electronics Co., Ltd. The Court affirmed the Superior Court’s ruling that…

Representations and warranties insurance (RWI) has become a fixture in today’s M&A landscape, offering buyers and sellers a mechanism to shift risk and streamline negotiations. Yet, as the RWI market matures, certain recurring disputes highlight the friction between deal economics, coverage intent, and post-closing realities. One common dispute arises when a pre-closing breach continues after the Closing date, raising the thorny question: when does loss stem from a covered pre-closing breach, and when is it attributable to post-closing conduct that falls outside the policy?

Continue Reading The Breach That Won’t Die: Navigating Post-Closing Conduct and RWI Coverage Disputes

Government and Federal Aviation Administration (FAA) safety directives have led to a reduction in flights beginning November 7, 2025, to protect people and property from potential accidents. The FAA’s Emergency Order Establishing Limitations on the Use of Navigable Airspace explains that the restrictions are necessary “to ensure the safety of aircraft” and “[t]o maintain the highest standards of safety” in the National Airspace System. For companies whose operations or revenues are affected, these measures may give rise to recoveries under general liability and property insurance policies.

Continue Reading Obtaining Insurance Recoveries From FAA-Mandated Flight Reductions

On October 20, 2025, the United States Court of Appeals for the Fifth Circuit issued a significant decision clarifying that an insurer’s duty to defend under Texas law extends to a contractually mandated alternative dispute resolution (ADR) proceeding.[i] The Fifth Circuit reversed a magistrate judge’s dismissal of BPX Production Co.’s (BPX) coverage claims, holding that an ADR proceeding triggers an insurer’s duty to defend and indemnify under a commercial general liability (CGL) policy—thus rejecting the insurer’s argument that a “suit” was required.  Further, the Fifth Circuit held that an insurer’s conduct can waive conditions to coverage. This decision provides important guidance for corporate policyholders navigating insurance disputes involving an ADR proceeding, policy defenses asserted by insurers, and the assignment of insurance rights to maximize an insurance recovery in the circumstance of a bankruptcy.

Continue Reading Fifth Circuit Issues Pro-Policyholder Ruling that ADR Proceeding Triggered Insurer’s Duty to Defend and Indemnify

In a pro-policyholder ruling, the North Carolina Supreme Court recently held that a homeowner’s claims against an insurance agent for negligence and gross negligence, seeking punitive damages, survived a motion to dismiss based on the insurance agency’s course of dealing with the homeowner. The decision, Jones v. J. Kim Hatcher Insurance Agencies, Inc., et al., is a win for policyholders and demonstrates how the North Carolina Supreme Court is willing to balance the normal expectation that a person must read what he signs with an insurance agency’s role in inducing the policyholder to do otherwise.

Continue Reading North Carolina: Policyholders Not Contributorily Negligent for Agent’s Misstatements

Natural disasters are becoming more frequent, more severe, and more destructive.  No part of the United States is entirely immune from some combination of tornadoes, fires, droughts, earthquakes, freeze events, and hurricanes.  Indeed, 2024’s “extraordinary” hurricane season saw Hurricanes Helene and Milton devastate swaths of the Southeastern United States from Florida to North Carolina.[1]  This trend has continued in the early days of 2025 with wildfires in California and winter storms in the South and along the East Coast causing devastation, supply chain disruptions, and, reportedly, tens of billions of dollars in insured losses.

Continue Reading America’s Aging Dams and Other Infrastructure is an Urgent Insurance Coverage Issue

In March last year, New York’s Appellate Division – First Department issued Xerox an important pro-policyholder decision in its D&O insurance recovery action against Travelers, arising from Xerox’s failed 2018 merger with Fujifilm.  In a thoughtful order, the court issued three key pro-policyholder rulings that: (1) reinforce the rule that the words “arising from” when used in policy exclusions should be narrowly construed under New York law; (2) recognize that an insurer who shows bad faith indifference to its policyholder’s rights may be held liable for a breach of the duty of good faith and extracontractual damages under New York law; and (3) held that the reasonableness of an underlying settlement is  an issue of fact that should go to the jury.  A copy of the Court’s decision is available here.

Continue Reading Xerox Obtains Important Pro-Policyholder Decision in New York’s First Department, Adopting Narrow Construction of “Arising From” Exclusions and Confirming That Insurers Who Show Indifference to Policyholders’ Rights May Be Liable for Bad Faith in New York

A recent decision by a federal court in the Eastern District of New York illustrates how directors and officers (“D&O”) policies can provide valuable insurance coverage for defense costs and potential liabilities arising from False Claims Act (“FCA”) litigation.  In Northern Metropolitan Foundation for Healthcare, Inc. v. RSUI Indemnity Company, Case No. 20-CV-2224 (EK)…