Insurance Coverage& Regulation

• Defending a national insurer against claims by the insured for breach of contract and bad faith relating to underlying sexual abuse claims.

• Defended a national insurer against claims by additional insureds and their carriers concerning priority of coverage issues and estoppel arguments based on prior representations.

• Defending a national insurer against claims by the insured for breach of contract and bad faith for underlying personal injury claims stemming from a landslide.

• Secured summary judgment in favor of insurance broker where insureds alleged broker was negligent in failing to secure higher coverage limits for the subject property, which was affirmed by the Appellate Division, Third Department.

• Secured summary judgment in favor of the insurer where the insured disputed the extent of coverage as barred by the policy's limitations provision, which was affirmed by the Second Circuit.

• Successfully appealed a denial of summary judgment in favor of the insurer where the insured sought to challenge the insurer's actual cash value award after resolving the claim with the insurer. The Appellate Division, Third Department reversed the trial court's order and granted the insurer's motion for summary judgment dismissing the complaint.

• Successfully persuaded an appeals court to uphold summary judgment in favor of the client insurer, holding that exposure under the state financial responsibility filing was limited to statutory minimums and not the policy limit.

• Persuaded a federal district court that a loss arising out of negligence of the named insured's employee in operating a motor vehicle fell within several specific exclusions of the client insurer's commercial general liability policy.

• Persuaded a federal appeals court that the MCS-90 regulatory endorsement did not create a duty to defend a bodily injury action against an insured motor carrier where the policy itself provided no coverage.

• Successfully defended coverage action by persuading the federal appellate court that the client insurer's non-trucking exclusion barred coverage where a loss occurred while an insured driver was looking for a place to sleep between deliveries.

• Successfully defended coverage action by persuading the federal appellate court that the client insurer's non-trucking exclusion barred coverage where the loss occurred while the insured driver was returning home after multiple deliveries for a motor carrier.

• Successfully defended coverage action by persuading the federal appellate court that the client insurer's coverage for hired autos was excess.

• Persuaded a federal appeals court that an insurer's statutory duty under NYS law to disclaim coverage under the contingent policy was not triggered until the adversary produced a copy of the other policy in discovery.

• Assisted a mid-Atlantic property insurer in transitioning personal lines coverage to new products by drafting forms and liaising with the NYS Department of Financial Services.

• Successfully defended an insurance company in NYS court against a plaintiff alleging the insurer owed coverage for a water loss under a property insurance policy.

• Successfully represented an insurer in a nationally cited leading construction defect coverage decision that held that, without alleged damage outside the scope of the insured’s work product, faulty workmanship claims do not allege an "occurrence" as contemplated by a comprehensive general liability policy.

• Successfully defended an insurance company in federal court against a plaintiff alleging the insurer owed coverage under an insurance policy issued to a roofing contractor that performed allegedly defective work. The court agreed with the client's position that all claims should be dismissed pursuant to the “no direct action” doctrine. 

• Successfully represented an insurer in an insurer versus insurer dispute involving a significant underlying construction accident and disputed issues of coverage for contractual and common-law indemnification claims. The NYS Appellate Division, Fourth Department agreed that the client's excess general liability policy was inapplicable, resulting in a high six-figure recovery.

• Successfully convinced the Illinois Appellate Court to uphold summary judgment in favor of the insurer client, holding that exposure under the state financial responsibility filing was limited to statutory minimums and not the policy limit.

• Successfully persuaded the US District Court for the Eastern District of New York that a loss arising out of the negligence of the named insured's employee in operating a motor vehicle fell within several specific exclusions of the client's commercial general liability policy.

• Successfully persuaded the US Court of Appeals for the Ninth Circuit that the regulatory endorsement MCS-90 did not create a duty to defend bodily injury action against the insured motor carrier where the policy itself provided no coverage.

• Successfully defended a coverage action by persuading the US Court of Appeals for the Sixth Circuit that the client's non-trucking exclusion barred coverage where the loss occurred while the insured driver was looking for a place to sleep between deliveries.

• Successfully defended a coverage action, persuading the US Court of Appeals for the Sixth Circuit that the client's non-trucking exclusion barred coverage where the loss occurred while the insured driver was returning home after multiple deliveries for a motor carrier.

• Successfully defended a coverage action by showing the US Court of Appeals for the First Circuit that the client's insurer's coverage for hired autos was excess.

• Represented an insurance company in persuading the US Court of Appeals for the Second Circuit that, under New York law, the insurer's statutory duty to disclaim coverage under the contingent policy was not triggered until the adversary produced a copy of the other policy in discovery. 

• Worked with a Lloyd's coverholder to develop and draft a cutting-edge line of specialty accident and disability income policies.

• Represented a large private university in Upstate New York on its rights to insurance coverage with regard to multiple sexual harassment claims. 

• Obtained summary-judgment dismissal of a complaint against the county and district attorneys that sought $9 million in damages for malicious prosecution. 

• Obtained pre-answer dismissal of claims against a life insurance carrier that its agents had misrepresented the cost and probable return on flexible premium adjustable benefit life insurance policies.

• Successfully counseled an insurer-client and convinced insured's counsel regarding pursuit of coverage for a grave-injury suit under the opposing insurer's unlimited employer's liability coverage while successfully navigating anti-subrogation rule. Obtained an appellate-level decision affirming that this unlimited coverage had been triggered.

• Secured discontinuance of insurer's subrogation claim, alleging breach of contract, breach of duties under the Carmack Amendment (49 U.S.C. Sec. 14706), and breach of bailment for de minimis settlement based on role as freight co-broker, as evidenced by subject insurance policies, indemnity provisions, and certificates of insurance.

• Secured a dismissal of claims against an insurer by the contractor who performed services for the insured based upon the lack of any agreement between the insurer and contractor, which was affirmed by the Appellate Division, Fourth Department.

Alerts

• COVID-19 Business Interruption Update: New York High Court Affirms in Favor of Insurer
• Second Circuit Reverses in Favor of Insured in $600,000 Fire Loss Case
• NYS Appellate Court Reverses in Favor of Policyholder in Ensuing Loss Case
• Affidavits Lacking Personal Knowledge and Attaching Uncertified Records Have No Probative Value
• Second Circuit Dismisses Bad Faith Claim as Time-Barred "Loss" Under Property Insurance Policy
• New York State's Highest Court Rejects Untimely $2.4 Million Claim for Reformation of Insurance Policy
• Second Department Finds Transcripts of Lack of Appearance for EUOs Not Admissible as Business Records
• COVID-19 Business Interruption Update: Second Circuit Issues Decisions in Favor of Insurers Dismissing Claims
• NYS Adult Survivors Act Signed Into Law, Reviving Claims of Sexual Abuse for Adult Victims
• Update Regarding Amendments to NYS Insurance Disclosure Laws
• New York State Limits Insurers' Rights to Refuse Homeowners' Policies Based on Dog Breed
• New York State Enacts New Insurance Disclosure Laws
• New York State Appellate Court Grants Insurer's Motion to Rescind Policy Based on Misrepresentation in Application
• Eighth Circuit Rules in Favor of Insurer in First Appellate Decision Involving COVID-19 Business Interruption Coverage
• Pennsylvania State Court Grants Summary Judgment to Dental Practice Against Insurer for COVID-19 Business Interruption Coverage
• NYS Appellate Court Allows Water Damage Claim to Proceed Despite Insured Premises Being Unoccupied at the Time of Loss
• NYS Appellate Division Holds Insurer Not Entitled to Recoupment of Defense Costs for Uncovered Claims
• Recent Decisions Regarding Business Income Insurance Claims and COVID-19
• CT Supreme Court Addresses Issue of First Impression on Coverage for Property Damage Liability Claim
• NYS Appellate Court Issues Decision on Novel Indemnification Claim in Construction Case
• NYS Court Dismisses Claims Against Life Insurer, Insurance Agent Based on Insured's Misrepresentation
• COVID-19 Business Interruption: Early Win for Insurer in NY Federal Court
• Texas High Court Issues Significant Decisions Regarding Duty to Defend
• COVID-19: Insurance Coverage and Regulation Updates
• NYS Appellate Court Issues Decision in Business Interruption Case
• COVID-19: Life and Disability Insurance Coverage
• COVID-19 and Insurance Coverage
• NYS Court Reverses in Favor of Insured in Apparently Intentional Incident
• Appellate Division Affirms Victory for Insurers by Precluding Claims Representative's Testimony
• NYS Court of Appeals Issues Decision on Out-of-State Risk Retention Groups
• Second Circuit Determines Gradual Deterioration of Walls Was Not a Covered Collapse Under Homeowner's Policy
• NYS Appellate Court Holds That Whether Provision in Construction Contract Required Additional Insured Coverage Presented Question of Fact
• Child Victims Act Signed Into Law, Extending Statute of Limitations for Victims of Sexual Abuse
• Insurance Bad-Faith Claims May Arise for Failing to Act Promptly During Jury Deliberations
• NYS Appellate Division Holds That SEC Disgorgement of Over $140 Million is an Uninsurable Penalty Under Professional Liability Policy
• NY Court Holds Claim Against Automobile Insurer Accrued on Date of Insurer's Denial of Coverage
• NY Court of Appeals Enforces Additional Insured Clause Requiring Contractual Privity With the Named Insured
• Tenth Circuit: General Contractor Entitled to Liability Coverage for Construction Defect by Subcontractor
• The European Union General Data Protection Regulation Will Affect Companies in the United States and Canada. Many Still Aren't Ready to Comply
• Cyber Liability Insurance - Pitfalls in Coverage
• NY Appellate Division Issues Several Decisions as to Liability Insurers' Denials of Coverage Based on Late Notice of Claims
• New York Court Holds That Claim Against Property Insurer Accrued on Date of Insurer's Denial of Coverage
• New York Court of Appeals Narrows Trigger for Additional Insured Coverage
• New York Court Holds That Privileged Statement to Insurer May be Discoverable
• New York Appellate Court Holds That Insurer May Rescind Policy Based on Unintentional Material Misrepresentation in Application for Policy
• New York Appellate Court Holds that Assault Did Not Relieve Insurer of Duty to Defend under Homeowners' Policy
• New Cybersecurity Regulations May Apply to Companies that do Business with NYS Chartered Or Licensed Banks, Mortgage Bankers, Insurance Companies and Others
• New York State Department of Financial Services Finalizes Cybersecurity Regulations
• Cybersecurity Insurance - Considerations for Health Care Providers, Higher Education Institutions and their Lenders
• NY Appellate Court Finds Liability Coverage for Obligation to Pay Statutory Damages Under the Fair Credit Reporting Act
• Cybersecurity Update - What to Look for in 2017
• Presidential Commission Report on Cyber Security and What it Might Mean for Your Business
• New York High Court Holds that Totality of Circumstances Governs Whether Insurer Waived Late Notice Defense in Case Not Involving Bodily Injury or Death
• Appellate Division Enforces Additional Insured Clause Requiring Contractual Privity with the Named Insured
• New York District Court Attempts to Apply "Non-Cumulation" Clause Under New "All Sums" Allocation
• New York Appellate Court Reverses Award of Attorneys' Fees to Insured That Prevailed in Action Against Insurer
• FTC Reinstates Data Breach Action Against LabMD, Orders Remedial Measures
• Costs of a Data Breach Up to $7 Million Per Incident
• NY High Court Holds That "All Sums" Allocation And "Vertical Exhaustion" Apply To Coverage For Asbestos Claims Under Excess Liability Insurance Policies
• Data Breach Notifications are on the Rise in 2016 and Businesses Continue to Struggle with Liability Issues Relating to Breaches
• NY Appellate Court Permits Claims Against Insurer for Breach of Contract and Breach Of Implied Covenant of Good Faith and Fair Dealing
• NY Appellate Court Permits Claim Against Insurance Agency for Failure to Procure Coverage for Rodeo Business
• Cyber Security Update - The FTC and Class Actions
• Appellate Division Reverses in Favor of Liability Insurer that Denied Coverage for Claims Arising from Loss of Electronic Data
• NY Appellate Court Holds That Acts of Self-Defense Triggered Intentional Acts Exclusion in Liability Policy
• Cyber Security Update - Recent Developments and Expectations for 2016
• Appellate Court Holds That NY Disclaimer Statute Does Not Apply to Disclaimer Based Upon Limitation of Scope of Coverage for Classifications of Work
• Appellate Division Issues Recent Decisions on Additional Insured Coverage
• Appellate Division Affirms In Favor Of Insurer On Issues Of Business Interruption Loss And Consequential Damages
• Counsel Failed To Establish Causation In Toxic Tort Matter
• N.Y. Court of Appeals Holds Computer Fraud Insurance Policy Does Not Cover Medicare Fraud
• Appellate Division Dismisses Declaratory Judgment Action Against Insurer Based on Late Notice
• Appellate Division Holds Pennsylvania Uninsured Motorist Policy Exclusions Unenforceable in New York
• Second Department Grants Summary Judgment to Insurer Despite 4-Year Delay in Issuing Disclaimer
• Appellate Division Holds Policy Pollution And Faulty Workmanship Exclusions Preclude Coverage For Silica Dust Claim
• Appellate Division Dismisses Fire Loss Claim Where Application Contained Material Misrepresentation Ratified By Insured
• New York Court of Appeals Holds Water Damage Exclusion Applicable Despite Ensuing Loss Exception
• Appellate Division Dismisses Fire Claim Where Insured Failed to Comply with Policy Warranty Regarding Operational Burglar Alarm Protection
• Failure to Notify Insured of a Coverage Reduction on Policy Renewal Subjects Insurer to General Business Law §349 Liability Exposure
• Appellate Division Finds Issue of Fact Regarding Insurers' Common Law Waiver of Late Notice Defense
• New York Court of Appeals Denies Additional Insured Status to Building Owner Absent Express Requirement in Painting Contract
• N.Y. Court of Appeals: Noncumulation Clause Limits Recovery to Single Policy Limit in Lead Paint Case
• New York Court Holds That Liability Policy Covering Multi-State Risks Should Be Interpreted Under Law Of State Where Insured Is Domiciled
• Fourth Department Holds That Insurer Was Timely Notified of the "Occurrence," "Claim" and "Suit"
• Consequential Damage Claim Permitted Against Liability Insurer for Breach of Covenant of Good Faith
• Second Department Upholds Rescission of Insurance Policy Where Plaintiff Misrepresented the Number of Dwelling Units in a Multi-Family Home
• Appellate Court Construes Water Damage Coverage For Backup Through Sewers Or Drains
• Fourth Department Lead Paint Decision Places High Burden On Insurers Seeking to Enforce Policy Exclusion
• New York Court of Appeals Affirms Insurer's Liability Disclaimer for Non-Cooperation by Insured
• New York State Appellate Court Recognizes Implied Private Right of Action Under the Prompt Pay Law
• New York Court of Appeals Finds Two-Year Suit Limitation Provision Unenforceable in Replacement Cost Holdback Claim
• Court of Appeals Vacates Problematic K2 Decision
• Auto Insurer Ordered to Produce Its Entire Claim File in SUM Action
• Appellate Court Upholds Policy Exclusion for Enforcement of Ordinance or Law Regulating Repair of Building
• New York Court of Appeals Construes Vandalism Coverage Under Property Policy
• Appellate Court Finds Coverage Under a Computer Fraud Policy When the Computer System Has Been Hacked By Unauthorized Users, But Not For Fraud By Authorized Users
• New York Court of Appeals to Address Issue of Apportionment Clause in Fire Policy Limiting Insured's Recovery to a Percentage of Loss
• Insurer May Not Rely On Policy Exclusions to Defeat Its Duty to Indemnify an Insured Where the Insurer Breaches Its Duty to Defend
• New York Court of Appeals to Consider Insurance Policy Replacement Cost Provisions and Statute of Limitations
• Proposed Legislation In New York Would Create A Private Cause Of Action Against Insurers For Unfair Claim Settlement Practices
• Fourth Department Holds That Non-Cumulation Clause Limits Recovery To Single Policy Limit In Lead Paint Case
• New York Statute Imposes Obligations On Life Insurers To Find Deceased Policyholders
• Federal Court Decision Interprets Meaning Of Prejudice Under Amendment To New York Insurance Law § 3420
• New York Court of Appeals Upholds Earth Movement Exclusion In Excavation Case
• High Court Considers Insured's Failure To Read Policy In Action Against Broker
• Court Of Appeals Finds Ambiguity In Homeowners Residency Requirement
• Insurer Resists Property Claim Based On Fraud And Lack Of Insurable Interest
• Violation of Insurance Department Regulation 64 in Investigating Claim Held not to Preclude Insurer From Asserting Policy Exclusions
• Court of Appeals Holds Additional Insureds May Be Bound by Named Insured's Misrepresentations
• Insurer Denied Leave to Amend Complaint Based on Prejudice and Undue Delay
• The Court of Appeals Construes "Arising out of" Exclusion in Liability Policy
• Insured's Testimony Creates Question of Fact Regarding Insurer's Timely Receipt of Proof of Loss
• New York Court of Appeals Sanctions First Party Breach of Contract Claims for Consequential Damage
• Appellate Court Tightens Late Disclaimer Rule and Finds Against Insurer
• Insured's Obligation to Comply with Demand for No-Fault IME
• Court Examines Faulty Workmanship Exclusion Under Builders' Risk Policy
• New York Establishes Department of Financial Services
• Insured Barred From Recovery Based Upon Judicial Estoppel Following Bankruptcy Proceeding
• Harboring Dog Results In Rescission of Homeowner's Policy
• High Court Defines Term "Benefit" in Exclusion Under Homeowners Insurance Policy
• Insureds Must Reside in Residence Premises or Lose Coverage Altogether
• Ordinance or Law Coverage for Demolition Ordered by Municipality
• Court Decides Statute of Limitations for Claim by Insured Against Insurance Broker
• Intentional Assault with Motor Vehicle Covered Under Underinsured Motorist Endorsement
• CGL Exclusion for ATVs Found Ambiguous
• New York Court of Appeals to Decide Potential
• Insurance Department Regulation Regarding Producer Compensation Transparency
• Truth is Stranger than Life Insurance
• Criminal and Intentional Act Exclusions Reviewed Where Oil Drum Thrown From Second Story Window
• Court of Appeals Reaffirms Duty to Defend Additional Insured
• Policy Exclusion for "Pressure or Weight of Water"
• Misrepresentation in Application for Homeowner's Insurance Regarding Occupancy
• Federal Court Questions New York Contractual Limitations Period
• Insurer's Liability for Independent Counsel Fees in "Bet The Company" Litigation
• Appellate Court Construes "Ongoing Operations" Provision Relating to Additional Insured Coverage
• Court Permits Claim to Proceed Against Homeowners' Insurer for Violation of General Business Law Section 349
• Employee Liability Exclusion Not Against Public Policy
• Collapse Exclusion Upheld by Appellate Division
• Appellate Division Construes Work-Product Exclusion
• Court of Appeals Interprets Scope of Coverage Under Supplementary Underinsured Motorist Endorsement Regulation 35-D
• Risk Management in Troubled Times: Understanding D&O Insurance and E&O Insurance
• New York Court of Appeals Decides Earth Movement/Excavation Coverage Issue
• Collateral Estoppel Applied in Uninsured Motorist Claim
• Federal Court Finds New York Law "Unsettled" as to Collapse Coverage
• Appellate Court Finds Contamination Exclusion Ambiguous and Appellate Division Construes Liability Exclusions for "Spray Painting Operations" and "Work Product"
• Proposed Legislation Prohibits Insurers from Demanding Personal, Financial and Tax Information in Ordinary Theft Claims
• Intentional Acts Exclusion Inapplicable to Struggle and Fall Through Plate Glass Window
• Intentional Loss Not a Covered Loss Under "UM" Coverage but is Covered Under "No-Fault" Endorsement
• Appellate Division Construes Vandalism Exclusion In Water Damage Claim
• Failure To Secure Settlement Permission From SUM Carrier Breaches Policy
• Antisubrogation Rule Inapplicable to Construction Accident
• Certificates Of Insurance - Are They Enough?
• New Annual Flood Notice Required
• Policy Void for "Innocent" Material Misrepresentation in Application
• Cancellation Of Homeowner's Policy For Failure To Pay Premium
• Legislative Update: Governor Proposes Legislation Permitting Direct Action by Injured Party and Requiring Prejudice for Late Notice Defense by Insurer
• Court Finds Failure to Notify Insured of Right to Independent Counsel Violates General Business Law §349
• Priority Among Primary and Excess Insurers Determined by Policies, Not By Construction Contracts
• Court Interprets Occasional Rental Provision of Homeowner's Insurance Policy
• Effect of Insured's Bankruptcy on Mortgagee Claim for Fire Insurance Proceeds
• Pollution and Collapse Exclusions Rejected in 9/11 Building Coverage Claim

Press Releases

• Kaity McClaine Joins Barclay Damon
• Earl Storrs III Joins Barclay Damon
• Accomplished Litigator Joe Porcello Joins Barclay Damon's Syracuse Office
• Nick Constantino Joins Barclay Damon
• Barclay Damon Welcomes Benjamin Zakarin

News

• Tony Piazza Named to Daily Record Power 20 Litigation List for 2023
• The Brief Case: "Trucking Company's Accident Reconstruction Expert Excluded as Spoliation Sanction for Company's Failure to Preserve Truck After Fatal Accident"
• Mark Whitford Featured in Rochester Business Journal Article on Becoming Managing Director of Barclay Damon's Rochester Office
• Tony Piazza Named to Daily Record Power 20 Litigation List for 2022
• Column: The ethical obligation of cybersecurity

Publications

• 2020 Transportation Annual Year in Review
• 2019 Transportation Annual Year in Review
• 2018 Transportation Annual Year in Review
• 2017 Transportation Annual Year in Review
• 2016 Transportation Annual Year in Review
• 2015 Transportation Annual Year in Review
• 2014 Transportation Annual Year in Review
• 2013 Transportation Annual Year in Review
• 2012 Transportation Annual Year in Review

Events

• NY Labor Law and Construction Accidents Webinar
• COVID-19: Does Your Business Have an Insurance Claim?
• COVID-19 and Coverage: What's Coming and How to Respond
• Rochester I-Day 2019