Recent Posts

Fourth Circuit Reiterates South Carolina’s High Standard for Insurers’ Reservations of Rights

In a decision issued on December 13, 2022, the Fourth Circuit Court of Appeals affirmed the district court’s ruling that two insurers insufficiently reserved their rights under general liability policies issued to their insureds for claims arising out of construction defect litigation and, therefore, could not disclaim coverage…

South Carolina Court of Appeals Gives Insurance Company a Reprieve when Complying with a Time-Demand

Recently, the South Carolina Court of Appeals’ enforcement of a settlement resulted in favor of an insurer in the case styled O’Conner v. Collier. The court enforced a settlement where the claimant argued that the insurer had not properly complied with the terms of its settlement demand…

New Changes to Oklahoma Law Regarding Wind & Hail Claims Could Bring Much-Needed Clarity to Claims-Handling & Possible Litigation

As Oscar Hammerstein famously noted, Oklahoma is “where the wind comes sweepin’ down the plain.” Along with it typically comes damage to roofs caused by wind and hail. Following not far behind like storm clouds on the horizon are disputes over claims-handling and, often, litigation. Background Oklahomans are no strangers to severe weather. According to

Uninsured Motorist Select/Reject May Not Require Picking a Specific Lesser Amount

Written by: Bryan Forsyth, Esq. In Jones v. Georgia Farm Bureau Mut. Ins. Co.1, the Georgia Court of Appeals recently affirmed partial summary judgment in favor of Georgia Farm Bureau Mutual Insurance Company (GFB) as to the amount of Uninsured Motorist (UM) coverage provided by its insurance policy issued to Ernie Jones, who died in

Court Rejects Insurance Carrier’s Broad Interpretation of Exclusion of Specific Antitrust Matters

Written by: Nneka A. Egwuatu Anunobi, Esq. The U.S. District Court for the Northern District of California recently rejected an attempt by Everest National Insurance Company to deny coverage for antitrust lawsuits involving Foster Farms, LLC’s and Foster Poultry Farms’ (collectively, “Foster”) turkey products. Background In 2016 Foster was sued in various antitrust lawsuits brought

New Jersey Appellate Division Declines to Extend Scope of TNCSRA to Cover Food Delivery Services

Written by: Kelly P. Corrubia, Esq. A panel of the New Jersey Appellate Division in a case of first impression held that the Transportation Network Safety and Regulatory Act (TNCSRA)1 applies only to transportation network companies that use a digital network to connect a rider to a prearranged ride, such as Uber or Lyft, and

Important Ruling on Assault & Battery Exclusions

Written by: Duane L. Cochenour, Esq. Judge Kevin B. Weiss of the Circuit Court for Orange County, Florida, issued a potentially important ruling regarding assault and battery exclusions. An appeal is sure to follow, but the court granted the plaintiff’s rather novel argument that mental anguish damages (and a $25M Judgement for them) are not

A Recap on the Modern Trend to Impose Duty of Good Faith upon Primary Insurers

Written by: Cayton S. Chrisman, Esq. The insurance industry has long been undecided as to whether primary insurers owe a duty of good faith to excess insurers, and, if such a duty does exist, when that duty arises. On one hand, some jurisdictions have determined that there is no affirmative or direct duty of a

Are Individual Insurance Adjusters Liable for Unreasonable Delay or Denial of Claims under Colorado Law?

Written by: Melissa A. Ogburn, Esq. On March 14, 2022, the Colorado Supreme Court issued its ruling in Skillett v. Allstate Fire and Casualty Insurance Co., infra, definitively deciding whether insurance adjusters themselves can be held liable for unreasonably delaying or denying benefits under a policy of insurance pursuant to C.R.S. §§ 10-3-1115 and -1116. 

The Brave New World of New York Insurance Disclosure

Written by: Joshua T. Reece, Esq. Edited by: Nicole A. Callahan, Esq. New York’s governor closed 2021 by signing into the law the Comprehensive Insurance Disclosure Act (CIDA), which placed onerous new insurance disclosure requirements on defendants. The most onerous provisions of CIDA were struck when the law was amended on February 24, 2022. Given

Duty to or Not to Defend? That is The Question. Recent Application of the ‘Eight-Corners Rule’ Under Texas Law in Finding Insurer Had Duty to Defend

Written by: Timothy A. Bishop, Esq. In Siplast, Inc. v. Emps. Mut. Cas. Co., 23 F.4th 486 (5th Cir. 2022), the Fifth Circuit Court of Appeals, construing Texas law, applied the “eight-corners rule” in finding that the insurer had a duty to defend. In Siplast, the insured, a roofing manufacturer, brought an action against its

Bad Faith Claims Arising under Claims for UM/UIM Benefits Permitted under New Jersey Insurance Fair Conduct Act

Written by: Kelly P. Corrubia, Esq. On January 18, 2022, Governor Murphy signed Senate Bill 1559,   the “New Jersey Insurance Fair Conduct Act” (“NJIFCA”). The NJIFCA creates an individual cause of action for bad faith arising from a claimant’s uninsured/underinsured motorist (“UM/UIM”). The Act permits an insured to file a lawsuit when that individual is

S(l)imms Pickens for UM Coverage in South Carolina When At-Fault Driver is Excluded from Insured’s Policy

Written by: Alan R. Belcher, Jr., Esq. USAA v. Pickens, __ S.C. ____, 2021 (Filed August 11, 2021.) In this appeal, the Supreme Court of South Carolina was asked to address the applicability of mandatory uninsured motorist coverage (UM) under a USAA personal lines auto policy (Policy).  The Court determined that the Policy did not

Get Your Head in the Game: Georgia Court Warns Insurers About the Consequences of Bench-Warming During a Pending Lawsuit Against the Insured

Written by: Tiffany Winks, Esq. and Breanna Vega, Esq. The United States District Court for the Middle District of Georgia, recently decided Barrs v. Auto-Owners. In Barrs, in the underlying suit Barrs brought suit against AAA Contractors (“AAA”), the insured of Auto-Owners, for property damage and delays in deconstructing an old mill because an agent

U.S. District Court Clarifies the Interplay Between Contractual Obligations to Procure Property Insurance and “Other Insurance” Clauses

Written by: Thomas K. Wingfield, Esq. Hall Booth Smith, PC obtained summary judgment in favor of an owner’s property insurer, finding that the property policy procured by the tenant of the property provided primary insurance in a declaratory judgment action filed in the U.S. District Court for the Western District of Tennessee, which was styled

Fourth Circuit Says Lack of Time to Investigate a Claim Can Create an Objectively Reasonable Basis for an Insurer to Refuse a Settlement Demand

Written by: Elizabeth Wieters, Esq. In an unpublished per curium opinion styled Columbia Insurance Company v. Christopher Kamil Waymer, et al, the Fourth Circuit Court of Appeals recently reviewed and affirmed the South Carolina District Court’s decision to dismiss a claim for bad faith insurance practices. The Court concluded there was no bad faith under

If At First You Don’t Succeed: Georgia Legislature Amends Pre-Suit Demand Statute to Provide Additional Protections to Insurers

Written by: Abe Varner, Esq. The Georgia legislature recently made significant revisions to O.C.G.A. 9-11-67.1, the Georgia statute governing pre-suit settlement demands for injuries arising out of the use a motor vehicle.  The amended statute was recently signed into law and applies to causes of action arising on or after July 1, 2021. In response

No Notice, No Problem. Georgia Supreme Court Rules That Lack of Notice of Suit Does Not Relieve Insurer from Subsequent Bad Faith Failure to Settle Suit

Written by: Paul Trainor, Esq. On April 19, 2021, the Georgia Supreme Court issued its opinion in Geico Indemnity Co. v. Whiteside, dealing another blow to insurers in the context of bad faith claims. The underlying case arose from a motor vehicle accident on February 26, 2012 between Bonnie Winslett, the driver of a Ford

Step-Down Provisions in Automobile Insurance Policies issued in South Carolina Deemed Unenforceable in Recent South Carolina Supreme Court Decision

Written by: Joseph D. “Trey” Thompson, III In the recent case of Nationwide Mut. Fire Ins. Co. v. Walls, Opinion No. 28012, filed March 10, 2021, the South Carolina Supreme Court in a declaratory judgment action essentially eliminated an automobile liability insurer’s effort to enforce a “step-down” provision in an automobile liability insurance policy. Generally

Georgia Workers’ Compensation Insurance Policy – A Brief Discussion

Written by: Rayford H. Taylor, Esq. Georgia employers are generally aware they must purchase and maintain workers’ compensation insurance to operate within the state. Those employers obtain coverage for themselves and their employees, but often do not pay attention to the types of coverages included in a workers’ compensation and employer’s liability insurance policy. This

Court of Appeals Finds Hospital Lien Still Enforceable Against Insurers After Policy Limits Settlement

Written by: James G. Smith, Esq. The Georgia Court of Appeals recently issued a decision in the case of Tift Regional Medical Center Foundation, Inc. v. Geico General Insurance Company[1] which underscores the critical importance of being aware of and addressing perfected liens prior to entering into a settlement, particularly with a pro se Plaintiff. 

Georgia Apportionment Increase: Employer Negligence to be Added to Verdict Forms

Written by: Glenn E. Jones, Esq. Georgia employers, especially those who hire and employ drivers, have an additional conduit of risk and scrutiny based on a new ruling by the Georgia Supreme Court. Georgia juries may find an employer negligent based on what is found in an employee’s driving history, training history, or criminal background.

Georgia Court of Appeals Finds Insurer is Again Estopped from Raising Misrepresentation Defense

Written by: Patrick Fitzgerald, Esq. In Penn-Am. Ins. Co. v. Morgan Fleet Servs. Inc., 2020 WL 4726544 (Ga. Ct. App. Aug. 14, 2020), Penn-America Insurance Company (“Penn-America”) sought a declaration that its insurance policy with Morgan Fleet Services Inc. (“MFS”) was void on the ground that MFS’s application for insurance coverage stated that MFS “[i]nstalls

Since the Celebration at Studio 417, it has been Mudpie in the Sky for COVID-19 Business Interruption Claimants

Written by: Jacob Raehn, Esq. In the final days of summer, Federal District Courts from every corner of The United States have laid down orders both for, and mostly against, allowing plaintiffs’ COVID-19 business interruption claims to continue against their insurers. Thus, making the “unprecedented times” we are living in a thing of the recent

Insurers Win First Battle in Fight Over Business Interruption Coverage For COVID-Related Closings — Michigan Judge Issues First Decision in this Billion Dollar Insurance Coverage Fight

Written by Duane L Cochenour, Esq. and Caitlin E. Correa, Esq. Hundreds of declaratory judgment actions have been filed across the country seeking business interruption coverage for shutting down businesses due to the coronavirus. It is shaping up as one of the biggest coverage battles in years with billions of dollars of losses at stake.

Applying Georgia Law, Eleventh Circuit Affirms Multi-Vehicle Collision Constituted a Single “Accident”

Written by: Elizabeth Fulton Morrison, Esq. On October 15, 2015, a truck driver crossed the center line and collided with two different vehicles, one after the other. The facts established that the truck driver truck did not correct the truck’s path before striking the second vehicle. Grange Insurance, who insured the truck, sought injunctive relief

Cyber Liability Insurance Coverage During Covid-19 Pandemic

Written by: Asya-Lorrene Morgan, Esq. and C. Michael Johnson, Esq. Overnight, COVID-19 created a need for a large teleworking population, which has left businesses more vulnerable to phishing schemes and other malicious cyber activity. The recent increase in remote desktop protocols (“RPDs”) has created a 127% increase in exposure endpoints.[1] Failure to reassess cyber threats

Business Interruption – COVID-19 Pandemic

The outbreak of the COVID-19 virus has affected businesses all over America. The forced closing and limitation of operations is likely to lead businesses to turn to every possible source of economic relief – one of the most likely being business interruption insurance.

Duties of UM Carrier Not Expanded Beyond Statutory Construct of O.C.G.A. § 33-7-11

Written by: Mark Maholick, Esq. The case Hunter v. Progressive Mountain Insurance Company, —S.E.2d— 2020 WL 255361 (GA App. Jan. 17, 2020) recently reaffirmed the statutory obligations of an automobile insurance carrier in issuing a UM endorsement on a policy and failed to allow Plaintiff’s counsel in expanding those requirements beyond the statutory framework provided

Update on Pitfalls to Responding to Policy-limit Demands

Written by: Duane Cochenour, Esq. and Bill Daniel, Esq. The Georgia Court of Appeals recently held that an insurer’s request for clarification as to which insureds are released in a pre-suit, policy-limit demand amounted to a counteroffer and rejection of the demand. In Yim v. Carr, 349 Ga. App. 892 (2019)[1], plaintiff Patricia Carr was

Proximate Cause Determination Kept from Jury in $1.7M Coverage Case

Written by: R. Wells Littlefield, Esq. In Principle Solutions Group, LLC v. Ironshore Indemnity, Inc., 17-11703, 2019 WL 6691509, (11th Cir. Dec. 9, 2019), a split 11th Circuit Court of Appeals panel affirmed summary judgment in favor of Principle Solutions, providing coverage for the Atlanta-based IT staffing firm’s $1.7 million loss in a fraudulent instruction transfer

Blinders in Reviewing a COI Can Lead to a Binder on the Part of the Insurer

Written by: Beth Kanik, Esq. Merriam Webster  defines a “binder” as a person or a machine that holds something together. In 2019, the Washington Supreme Court in an en banc opinion expanded that definition to apply to a certificate of insurance (“COI”) In so doing,  the certificate holder was qualified as an additional insured when

Insurer’s Ability to Dispute Coverage May be Waived by Filing Insured’s Answer Before Giving Notice of Reservation of Rights

Written by: C. Michael Johnson, Esq. and Patrick Fitzgerald, Esq. In ACCC Ins. Co. of Ga. v. Walker, 2019 WL 4198535 (Ga. Ct. App. Sept. 5, 2019), ACCC Insurance Company of Georgia (“ACCC”) took the rather extra-ordinary step of filing its declaratory judgment action (“DJ”) to determine coverage for an automobile collision on the same

Beware The Vanishing Doctor: Protecting Coverage When Physicians are Dismissed in Georgia.

Written by: Paul Ivey, Esq. and Tyler Pritchard, Esq. Hospitals around the country employ dozens of physicians and nurses. Often, as a part of their employment, hospitals agree to pay the premiums on these health care professionals’ liability insurance policies. This much is no secret. But how does the hospital address coverage when, for a

South Carolina Supreme Court Answers Certified Question As To An Insurer’S Waiver Of Attorney-Client Privilege In Bad Faith Tort Actio

By: Elizabeth Wieters, Esq. This past week, the South Carolina Supreme Court answered a certified question from the U.S. Court of Appeals for the Fourth Circuit concerning an insurer’s waiver of attorney-client privilege in a bad faith action in In re: Mt. Hawley Ins. Co., Op. No. 27892 (S.C. Sup. Ct. filed June 12, 2019)

Is Work Product Protected by Attorney-Client Privilege When The Insurer’s Corporate Representative Is A Testifying Expert

Written by: Elizabeth Fulton, Esq. In February 2019, the Supreme Court of Texas considered whether the Insurer’s corporate representative was required to turn over drafts of affidavits and e-mails with outside counsel to the opposing party when he was designated as a testifying expert by the insurance company.  Reversing the lower court, the Texas Supreme

The Supreme Court of Georgia Clarifies When an Insurer’s Duty to Settle Arises and Applies Contract Law to Reject a Bad Faith Failure to Settle Claim

Written by: Bryan Forsyth, Esq. In First Acceptance Ins. Co. of Georgia, Inc. v. Hughes, No. S18G0517, 2019 WL 1103831 (Ga. Mar. 11, 2019), the Supreme Court of Georgia reversed the Court of Appeals, 343 Ga. App. 693, 808 S.E.2d 103, and disapproved of Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 558 S.E.2d

Ironical: Late Notice by Insurer of Reservation of Rights in Estoppel of Coverage Defense of Late Notice by Insured

Written by: James H. Fisher II, Esq. In Auto-Owners Insurance Company v. Cribb, 2019 WL 451555 (N.D. Ga.), Auto Owners, as insurer brought a declaratory judgment action asserting failure of its insured to comply with a coverage condition precedent of notice of a claim. Its insured failed to provide notice until after being served with


Written by: C. Michael Johnson, Esq. The 10th Circuit, just added its authority to a judicial trend of very narrowly construing key business risk exclusions in the CGL Policy: Exclusions j (5) & (6). MTI, Inc., v. Employers Ins. Co, Of Wausau, 2019 WL 321423 (10th Cir. 1/25/19). As part of a renovation effort, MTI

Insurers Beware of Form Releases- GEICO Dodges Bad Faith Verdict in 11th Circuit

Written by: Stephen D. Delk, Esq. Nearly all insurers, both as a matter of habit and perhaps in effort to curb expenses, routinely use form releases in settling cases. Although some standing operating procedures in claim handling may often times be a positive, at least for purposes of uniformity and consistency, all insurance carriers should

5th Circuit Expands Employee Injury Exclusion to Upstream Employers

Written by: Sean Cox, Esq. On October 24, 2018, the 5th Circuit Court of Appeals issued an opinion in Northfield Insurance Company v. Herrera, No. 17-51080 (5th Cir., October 24, 2018) wherein it upheld the enforceability of an employee injury exclusion to upstream employers of the insured and their employees. Herrera owned an elevator repair company that bought a

Work product – now you see it, now you don’t

Last week the Middle District of Georgia issued a decision that a carrier’s work product protection can essentially evaporate for claims records generated during the period when the insured and insurer clearly disputed coverage if the carrier is later willing to revisit its coverage position and agreed that a covered loss occurred. Omni Health Sols., LLC

11th Circuit Approves Exceedingly Short Trigger for Bad Faith in Florida

Written by: Drew Brooks, Esq. and C. Michael Johnson, Esq. On July 20, 2018, the 11th Circuit affirmed a jury verdict against Geico finding there was “more than enough” evidence to support a finding of bad faith in failing to promptly tender policy limits even though Geico tendered its full policy limits within 20 days of learning of

Harleysville Grp. Ins. v. Heritage Communities, Inc.

Written by: Alan Belcher, Esq. Throughout the country, insurance carriers are tasked with balancing their duties to their insured with the principals of corporate stewardship. For certain, Insurance companies are required to govern their relationship with their insureds in good-faith. On the other hand, insurance companies are required to justify the payment of defense costs and

Carlson v. American Intern. Group, Inc.

Written by: Karl Braun, Esq. One of the toughest aspects of coverage and coverage opinions is making determinations with an acceptable level of certainty. This task is made exceedingly difficult when courts make coverage determinations based upon amorphous concepts like whether a company has a “substantial business presence” in a certain jurisdiction. The Court of Appeals