Harleysville Lake States Ins. Co. v. Granite Ridge Builders, Inc., No. 1:06-CV-00397, 2008 WL 4935974 (N.D. Ind. Nov. 17, 2008) (Cosbey)

Posted on December 15, 2008 by David Gauntlett

Applying Indiana law the court found that the insurer’s botched communications with its insured as part of a purported reservation of rights, which it never articulated on a timely basis in writing, estopped it from contesting coverage where

the insured was only provided counsel by the insurer even though a right to independent counsel might otherwise have arisen had the reservation of rights letter been promptly sent with respect to a potentially covered copyright infringement lawsuit. Insurers must avoid ambiguity in reservations of rights since this will be resolved against them.

An alleged reservation of rights letter sent to the wrong ZIP code or wrong state was not effective to protect the insurer’s rights in this respect. Moreover, that letter lacked sufficient detail to constitute an effective reservation of rights and was never supplemented. These gaps in communication cannot be remedied by oral communications, which purportedly arose. As respects email communications that were cursory, and did not advise the insured of the full range of coverage issues, the court reasoned:

[C]learly Berklich’s two e-mail communications fall short of adequately informing Granite Ridge of the potential policy defenses and Harleysville’s potential conflict of interest given its likely control over Clancy’s representation, so that Granite Ridge could “intelligently choose” between retaining its own counsel or accepting the tender of defense counsel from Harleysville. Olivares, 894 N.E.2d at 594 (citing Royal Ins. Co., 582 N.E.2d at 1239).

Id. at *8.

A bare notice of a reservation of rights is inadequate information to inform the insured of a potential policy defense so that it can “intelligently choose” between retaining its own counsel and accepting the tender of defense counsel from the insurer. Id. at *9.

Estoppel arose under applicable Indiana law because the insurer never properly communicated its reservation of rights.

“[A]n insured suffers prejudice as a matter of law where an insurer, without reserving its rights and giving the insured an opportunity to determine whether to accept the tender of defense, assumes a complete defense of the underlying suit against the insured and controls the litigation for an extended period of time after becoming aware of a coverage defense.”

Id. at *10.

The court found estoppel, which precluded Harleysville from asserting any coverage defenses against Granite Ridge.  Id. at *12.
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Reimbursement

Posted on June 5, 2008 by David Gauntlett

General Star Indem. Co. v. Virgin Islands Port Authority, No. 2001-188, 2008 WL 2235338 (D. V.I. May 29, 2008)

 

A district court in the Virgin Islands, St. Croix Division, joins the plethora of decisions which appears now to be a majority

and clearly represents the modern trend, finding that a declaration of reservation of rights does not entitle the insurer to reimbursement, even though it seeks unilateral recovery.

 

The court found that if there is no right to reimbursement in the policy it should not be implicated by a court following decisions such as General Agents Ins. Co. of America, Inc. v. Midwest Sporting Goods Co., 828 N.E.2d 1092, 1103 (Ill. 2005); First Insurance Co. of Hawaii v. State, by Minami, 665 P.2d 648, 654 (Haw. 1983); Perdue Farms, Inc. v. Travelers Cas. and Surety Co. of Am., 448 F.3d 252, 258 (4th Cir. (Md.) 2006); Terra Nova Ins. Co. Ltd. v. 900 Bar, Inc., 887 F.2d 1213, 1219 (3d Cir. (Pa.) 1989); Shoshone First Bank v. Pacific Employers Ins. Co., 2 P.3d 510, 514 (Wy. 2000); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 924 (8th Cir. (Minn.) 1998); Westchester Fire Ins. Co. v. Wallerich, 527 F. Supp. 2d 896, 908 (D. Minn. 2007).

 

The Virgin Islands court relied on

 

title 22, section 819 of the Virgin Islands Code (“Section 819”) [which] provides that “[n]o agreement in conflict with, modifying, or extending any contract of insurance shall be valid unless in writing and made a part of the policy.”  V.I.Code Ann. tit. 22, § 819 (1968). Pursuant to Section 819, General Star was prohibited from constructively amending the Policies by reserving the right to reimbursement of defense costs in a subsequent letter.

 

Notably, a number of jurisdictions have similar statutory provisions which would support, by the same logic, the limitation of policies to their actual language.

 

Medical Liability Mut. Ins. Co. v. Alan Curtis Enterprises, Inc., ___S.W.3d ___, 2008 WL 2205868 (Ark. 2008)

 

In another contemporaneous case, the Arkansas Supreme Court joined a growing number of jurisdictions including Illinois and Texas who found that absent a contract provision in the policy permitting reimbursement of attorneys’ fees for a carrier who either agreed to defend or was adjudicated to owe a defense could not seek recoupment of monies expended for a defense.

 

In reaching that conclusion the court presumed that it was following the minority rule.  It did not observe how many jurisdictions had in fact articulated it.  Instead the court cited United Nat’l Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. (Ohio) 2002); Cincinnati Ins. Co. v. Grand Pointe LLC, 501 F.Supp.2d 1145 (D.Tenn.2007); Buss v. Superior Court, 16 Cal.4th 35, 65 Cal.Rptr. 2d 366, 939 P.2d 766 (1997).

 

Neither of Arkansas’ statutory schemes supported an award of attorneys’ fees under the reimbursement fact pattern before the court.  Since Arkansas’ public policy was best evidenced by its statutes and they did not provide such remedy, there was no need to imply one.  See, e.g., State Farm Mut. Auto Ins. Co. v. Henderson, 356 Ark. 335, 342, 150 S.W.3d 276, 280 (2004).
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