Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Insurance Law
Greene v. Westfield Insurance Co.
VIM opened its Elkhart wood recycling facility around 2000. By 2009 1,025 neighbors filed a class-action lawsuit, describing VIM’s site as littered with massive, unbounded outdoor waste piles and alleging that VIM processed old, dry wood outside, which violated environmental regulations; constituted an eyesore; attracted mosquitos, termites, and rodents; posed a fire hazard; and emitted dust and other pollution. Many neighbors alleged health problems. In the meantime, VIM acquired general commercial liability policies, running from 2004-2008, that obligated Westfield to pay up to $2 million of any judgments against VIM for “property damage” or “bodily injury.” Each policy required VIM “as soon as practicable” to notify Westfield of any occurrence or offense that “may result in” a claim. Upon the filing of a claim, the policies required that VIM to provide written notice. There were three separate lawsuits over the course of 10 years. VIM sometimes successfully fended off the claims but sometimes did nothing, resulting in a $50.56 million default judgment. In a garnishment action, the Seventh Circuit affirmed summary judgment for Westfield. The neighbors cannot credibly claim that VIM was unaware of the injuries before 2004 or that they would not reasonably have expected them to continue through 2008, so the notice requirements applied. Westfield only found out about the case from its own lawyer in 2010, while it was on appeal. View "Greene v. Westfield Insurance Co." on Justia Law
Market Street Bancshares, Inc. v. Federal Insurance Co.
Under a 2014 contract Federal Insurance agreed to defend and indemnify Peoples Bank, against “claims” made by third parties during the 2014-2017 policy period. At the time of the agreement, the bank was embroiled in a lawsuit that had been filed in 2003. During the damages phase of that lawsuit, in 2016, the plaintiffs argued that the bank owed damages based on a new theory. The bank requested that Federal defend against the argument and cover the bank’s corresponding losses. Federal refused, arguing that the damages argument was not a “claim” under the policy. The bank sued Federal. The district court granted Federal judgment. The Seventh Circuit affirmed, rejecting the bank’s argument that because the damages argument was not based on the facts and legal theories presented in the 2003 complaint, the damages argument was a “claim” in itself. Under the policy, a “claim” taking the form of “a civil proceeding commenced by the service of a complaint” spans the entire civil action, not just the legal theories and factual allegations in the complaint that commenced the action. The damages argument was part of the civil action begun by the 2003 complaint and is not itself a “claim.” View "Market Street Bancshares, Inc. v. Federal Insurance Co." on Justia Law
Posted in: Insurance Law
Turubchuk v. Southern Illinois Asphalt Co., Inc.
In 2005, a van containing six family members van slipped off the edge of an Illinois roadway. In the ensuing rollover crash, everyone was hurt; one passenger died. The crash occurred in a construction zone; a guardrail had been removed and not replaced. All lines had not been repainted on the repaved road, and pieces of asphalt lay on the shoulder. In a suit against the construction companies, the defense attorney told the plaintiffs that the two companies were operating as a joint venture with a $1 million liability insurance policy. The parties settled for $1 million. Plaintiffs signed a release of all claims that stated the plaintiffs agreed they were not relying on any statements by any parties’ attorneys. Four years later, the plaintiffs discovered that the companies carried separate liability policies. The district court ruled as a matter of law that the failure to identify the individual policies violated FRCP 26; that the undisclosed policies would have covered plaintiffs’ claims; and no joint venture agreement existed under Illinois law, so joint venture exclusions in the individual policies were inapplicable. A jury awarded damages of $8,169,512.84 for negligent misrepresentation. The Seventh Circuit reversed. The district court erred in allowing plaintiffs to rely on a Federal Rule of Civil Procedure for a duty of care; in deciding, before trial, that plaintiffs reasonably relied on the insurance disclosures; and in excluding the defense’s expert testimony on liability and settlement value. View "Turubchuk v. Southern Illinois Asphalt Co., Inc." on Justia Law
Markel Insurance Co. v. Rau
United owns a fleet of ambulances. In 2016, Stofko was driving his car when a United ambulance crashed into it; Stofko’s injuries were fatal. United was insured by Markel but the particular ambulance that crashed was not listed on the policy. Rau, the representative of Stofko’s estate, argued that it was nevertheless covered by the policy because before the crash United sent Markel’s agent, Insurance Service Center, an email requesting that the vehicle be added to the policy. The Center denied seeing the email and United acknowledged that it had not received a response as was customary. Markel argued that even if United had sent an email, it never endorsed the change, which the policy requires, and has no duty to indemnify United or the driver and no duty to defend in Rau’s suit. The Seventh Circuit affirmed summary judgment in favor of Markel. It is not necessary to resolve what happened to the email request to add the vehicle to the policy; under Indiana law courts may not rewrite an insurance contract. Neither Center nor Markel accepted or responded in any way to United’s request, so the ambulance was not covered. View "Markel Insurance Co. v. Rau" on Justia Law
Lexington Insurance Co. v. Chicago Flameproof & Wood Specialties Corp.
Flameproof, a distributor of fire retardant and treated lumber (FRT lumber), maintained liability insurance through Lexington, covering liability for "property damage” that is “caused by an occurrence that takes place in the coverage territory.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” “Property damage” is “physical injury to tangible property, including all resulting loss of that property,” or loss of use of property that is not physically injured. Three lawsuits arose from Flameproof’s sale of lumber to Minnesota-based contractors. The contracts called for FRT lumber meeting the requirements of the International Building Code (IBC). The complaints alleged that Flameproof “unilaterally” decided to deliver its in-house FlameTech brand lumber, which purportedly was not IBC-compliant. After the material was installed, the owners discovered that the lumber was not IBC-certified. Flameproof “admitted” that it had shipped FlameTech lumber rather than the FRT lumber advertised on its website and ordered. The FlameTech lumber was removed and replaced, damaging the surrounding materials. The lawsuits alleged negligent misrepresentation, fraudulent misrepresentation, deceptive business practices, false advertising, consumer fraud, breach of warranties, and breach of contract. Lexington sought a ruling that it owed no duty to defend Flameproof. The Seventh Circuit affirmed summary judgment for Lexington. The underlying complaints do not allege an “occurrence”—or accident—as required to trigger Lexington’s duty to defend under the policy. View "Lexington Insurance Co. v. Chicago Flameproof & Wood Specialties Corp." on Justia Law
Dorris v. Unum Life Insurance Co. of America
Dorris, a company president, had Unum long-term disability insurance. Her endometriosis became disabling; Unum started paying her benefits in 2002. Later, Dorris was diagnosed with Lyme disease. By 2007, the Social Security Administration granted her disability benefits. To maintain Unum benefits after two years, an employee had to prove that she “cannot perform each of the material duties of any gainful occupation for which [she is] reasonably fitted” or that she is “[p]erforming at least one of the material duties" of any occupation and “[c]urrently earning at least 20% less" due to the disability. In 2015, Dorris told Unum that she was improving and had started golfing and volunteering. Dorris’s Lyme disease specialist indicated that Dorris still had major symptoms and could not work. Unum’s consulting physicians found no evidence of limitations that would preclude sedentary work nor of an active Lyme infection. Unum ended her benefits. In her Employee Retirement Income Security Act (29 U.S.C. 1132(a)(1)(B)) lawsuit, Dorris was denied permission to depose witnesses to clarify the administrative record. Dorris never sought further discovery; nor objected to the ruling. Unum rested on its physician’s conclusions that Dorris could perform the duties of a president. Dorris asserted, without evidence, that such jobs required “55–70 hours a week,” and focused on how little she did as a volunteer. The court limited its review to the administrative record and found that Dorris could not perform the duties of her regular occupation, but nonetheless ruled in Unum's favor, because Dorris's arguments based on the "20% less" option were conclusory. The Seventh Circuit affirmed. The plaintiff bears the burden of proving that she is entitled to benefits. The court did not abuse its discretion in denying Dorris the opportunity to supplement the record after judgment nor were its factual findings in error. View "Dorris v. Unum Life Insurance Co. of America" on Justia Law
Lexington Insurance Co. v. RLI Insurance Co.
Prime, a trucking company, covered its own liability without insurance for the first $3 million per occurrence and bought excess liability insurance from multiple insurers, following a common industry practice of stacking policies into sequential “layers” of excess insurance coverage. Two accidents occurred in 2015 when Prime was covered by RLI and AIG policies. The two cases settled for $36 million. Prime was covered $3 million for each occurrence. The RLI Policy provided the next layer of coverage with an “Aggregate Corridor Deductible” (ACD) that obligated Prime to pay out an additional $2.5 million annually before RLI began to pay. RLI argued that the ACD sat within RLI’s $2 million layer, leaving RLI with no responsibility for any payment until Prime had both paid $3 million per occurrence and the year’s ACD. AIG argued that the ACD sat below RLI’s $2 million layer, so AIG’s duty to pay would not be triggered until Prime and RLI had together paid $7.5 million for the first occurrence. The district court found that payments toward the ACD erode RLI’s policy layer. The Seventh Circuit affirmed. The custom-tailored ACD feature of the RLI Policy was ambiguous but undisputed extrinsic evidence shows that RLI is correct. RLI has consistently expressed that Prime’s ACD payments reduce its responsibility for losses; Prime did not disagree before this dispute. The only reasonable inference from the parties’ negotiations is that AIG did not believe the ACD affected the threshold at which its layer began—$5 million per occurrence. View "Lexington Insurance Co. v. RLI Insurance Co." on Justia Law
Villas at Winding Ridge v. State Farm Fire and Casualty Co.
A storm caused minor hail damage at the Winding Ridge condominium complex located in Indiana, which was not discovered until almost a year later when a contractor inspected the property to estimate the cost of roof replacement. Winding Ridge submitted an insurance claim to State Farm. The parties inspected the property and exchanged estimates but could not reach an agreement. Winding Ridge demanded an appraisal under the insurance policy. State Farm complied. After exchanging competing appraisals, the umpire upon whom both sides agreed issued an award, which became binding. Winding Ridge filed suit alleging breach of contract, bad faith, and promissory estoppel. The Seventh Circuit held that the appraisal clause is unambiguous and enforceable; there is no evidence that State Farm breached the policy or acted in bad faith when resolving the claim. Winding Ridge’s own appraiser found no hail damage to the roofing shingles on 20 buildings. The fact that Winding Ridge independently replaced the shingles on all 33 buildings for $1.5 million while its claim was pending does not obligate State Farm under the policy or mean State Farm breached the policy. There is no evidence that State Farm delayed payment, deceived Winding Ridge, or exercised an unfair advantage to pressure Winding Ridge to settle. View "Villas at Winding Ridge v. State Farm Fire and Casualty Co." on Justia Law
Crum & Forster Specialty Insurance Co. v. DVO, Inc.
DVO was to design and build an anaerobic digester for WTE to generate electricity from cow manure to be sold to the electric power utility. WTE sued DVO for breach of contract. Crum initially provided a defense under a reservation of rights, but a later advised DVO that it would no longer provide a defense. The court ordered DVO to pay WTE $65,000 in damages and $198,000 in attorney’s fees. DVO’s Crum insurance policies provided commercial general liability, pollution liability, and Errors & Omissions coverage. Under the E&O professional liability coverage, Crum is required to pay “those sums the insured becomes legally obligated to pay as ‘damages’ or ‘cleanup costs’ because of a ‘wrongful act’ to which this insurance applies.” An endorsement provides that the Policy does not apply to claims or damages based upon or arising out of breach of contract. DVO argued that the exclusion was so broad as to render the E&O professional liability coverage illusory. The district court disagreed. The Seventh Circuit reversed and remanded for contract reformation. The exclusion’s language is extremely broad. It includes claims “based upon or arising out of” the contract, thus including a class of claims more expansive than those based upon the contract, rendering the professional liability coverage in the E&O policy illusory. The court considered DVO's reasonable expectations in purchasing E&O coverage to insure against professional malpractice claims. View "Crum & Forster Specialty Insurance Co. v. DVO, Inc." on Justia Law
Lexington Insurance Co. v. Hotai Insurance Co., Ltd.
Trek, a Wisconsin bicycle manufacturer, had agreements with Taiwanese companies. Trek purchases bicycles from Giant, sells them under its own brand name, and purchases bicycle parts from Formula. The purchase orders required Giant and Formula to have Trek named as an additional insured in their products-liability insurance policies with Zurich and Taian, Taiwanese insurers. Those policies agreed to indemnify the insured and its listed vendors, including Trek, for judgments, expenses, and legal costs incurred “worldwide,” allowed the insurer to control the litigation or settlement of a covered claim but did not require it to do so; included a Taiwanese choice of law provision; and required disputes to be resolved by arbitration in Taiwan. Giessler rented Trek bicycle in Texas. The front-wheel detached from the bicycle's frame, Giessler fell, and the resulting injuries rendered him a quadriplegic. Although Giant had manufactured the bicycle and Formula had manufactured the front-wheel release, neither was a party to Giessler’s lawsuit. Trek’s insurer, Lexington, defended Trek and attempted to notify the Taiwanese companies of Giessler’s lawsuit. The case settled. Lexington paid Giessler on Trek’s behalf. Lexington unsuccessfully sought reimbursement from Zurich and Taian then sued them in Wisconsin. The Seventh Circuit affirmed that the district court lacked personal jurisdiction. Lexington failed to demonstrate that either insurer made any purposeful contact with Wisconsin before, during, or after the formation of the insurance contracts. They did not solicit Trek’s business or target the Wisconsin market. They negotiated and drafted these contracts in Taiwan with Taiwanese companies. The insurers may be liable to Trek and included worldwide coverage provisions but that does not establish Wisconsin's jurisdiction. View "Lexington Insurance Co. v. Hotai Insurance Co., Ltd." on Justia Law