The court, adopting Magistrate Noel’s reported recommendation, denied an award of pre-judgment and post-judgment interest but otherwise affirmed the award for attorneys’ fees and costs in the underlying and coverage action as recommended.
Continue Reading...The court issued findings of fact and conclusions of law as to the scope of a Directors & Officers policy’s duty to cover reimbursement of defense fees and settlement costs in a patent infringement lawsuit. The court found for the insured.
It awarded plaintiff $31,070,981.62 plus
Continue Reading...Polygon Northwest Co. v. American Nat’l Fire Ins. Co., 189 P.3d 777, 143 Wash. App. 753 (2008) (Dwyer)
A construction defect lawsuit generated claims for equitable reapportionment of financial obligations arising from its settlement. The district court affirmed in part and reversed in part. The court found that the insolvency of the primary did not relieve the excess insurer of dropdown obligations.
Where a group of officers and directors were indicted and entered “not guilty” pleas, the court found that a D&O policy was required to defend. The pertinent clause of the Syntec policy stated:
[T]he Insurer shall advance, at the written request of the Insured, Defense Costs prior to the final disposition of a Claim. Such advanced payments by the Insurer shall be repaid to the Insurer by the Insureds or the Company severally according to their respective interests, in the event and to the extent that the Insured or the Company shall not be entitled under the terms and conditions of this policy to payment of such Loss.
Id. at *3.
Since the company was indemnifying the officers and directors, it fell within the provisions of this section in terms of being entitled to immediate reimbursement of defense fees.
The defendants proposed an allocation scheme – 63% to the MMC tower, 23% to the Synetic tower, and 14% to the Emdeon tower – based upon their contentions that “Plaintiffs ‘acquired an entity [i.e. Synetic f/k/a MMC] that was underinsured’ and ‘may not lawfully shift this uninsured liability to other insurance towers’ because the applicable tower of coverage has been exhausted.” Id. at *7.
Vansteen Marine Supply, Inc. v. Twin City Fire Ins. Co., No. 13-05-00231-CV, 2008 WL 599850 (Tex. App. - Corpus Christi March 6, 2008) (Valdez)
Hartford agreed to defend libel and defamation claims in a suit seeking a declaration that a non-competition clause was void and that the former president of Vansteen was entitled to damages from the company. Following a grant of summary judgment on the defamation and libel issues, the insurer sent a notice that it was withdrawing its defense obligation. The court also determined that there was no right to receive affirmative prosecution costs despite the insured’s arguments that they were also defensive of the suit against it. This because requiring a duty to defend which would envision payment of such attorneys’ fees would rewrite the insurance policies that the parties signed. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Witkowski v. Brian, Fooshee & Yonge Props., 181 S.W.3d 824, 830 (Tex. App. - Austin 2005, no pet.).
Had the attack on the liable/defamation claims awaited the conclusion of trial, the defense activities would arguably have dovetailed with the affirmative relief sought and entitled the insured to obtain an insurer funded trial. While some inconvenience may have attended the continued presence of the defamation claims throughout, absent evidence that it would have lead to a different result therein, delaying a motion to eliminate them until the trial concluded would have been preferable from an insurance coverage maximization perspective. Absent a dismissal of the liable and defamation claims, these affirmative prosecution costs, to the extent prove to also dovetail with defense costs, would have been recoverable. See
Continue Reading...General Star Indem. Co. v.
A district court in the
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