Insurance Online : Dispute on Policy's Aggregate Limits Decided in Insureds' Favor

    The Montana Supreme Court held that ambiguous language in the excess policy regarding aggregates provided an additional $4 million in CGL coverage.  Westchester Surplus Lines Ins. Co. v. Keller Transport, Inc., 2016 Mont. LEXIS 9 (Mont. Jan. 12, 2016).        The insureds' tanker truck overturned and spilled 6,380 gallons of gasoline. The gasoline flowed beneath several homeowners' properties. The insureds held a Commercial Transportation Policy issued by Carolina Casualty Insurance Co. (CCIC). The policy had two coverages: (1) commercial automobile with coverage of $1 million per accident; and (2) commercial general liability, with $1 million in coverage for each occurrence, as well as a $2 million "General Aggregate." The CGL policy stated that its "General Aggregate" limit was the most that would be paid under the CGL coverage regardless of the number of insureds or persons making claims.    Westchester issued an excess liability to insureds. Stated limits were $4 million for each "occurrence" as well as a $4 million "General Aggregate." The term "General Aggregate" was not defined.    The homeowners sued the insureds alleging negligence for causing the accident and in the manner in which the clean-up efforts had been implemented.     CCIC paid for related clean-up expenses and litigation costs under the Auto portion of the policy. CCIC notified the insureds that its duty to defend would end once the Auto coverage had been exhausted. When such limits were exhausted, CCIC referred the matter to Weschester. Westchester undertook the defense pursuant to a reservation of rights, noting that it had no duty to defend under its policy, but that it would defend until its limits were exhausted.    When Westchester had paid $4 million in clean-up expenses and litigation costs, it referred the defense back to CCIC. CCIC defended, but filed a declaratory judgment suit against Westchester, seeking a declaration of CCIC's and Westchester's responsibilities. The Homeowners then made a claim that the CCIC policy provided an additional $1 million pursuant to the CGL coverage, and that the Weschester policy likewise provided an additional $4 million in excess limits under the CGL coverage.    In the tort action, the Homeowners secured confessions of judgment against the insureds for $13 million in damages. The insureds assigned their rights under the polices to the Homeowners.    In the declaratory judgment action, the parties moved for partial summary judgment. The court found that an additional $1 million in limits under the CGL coverage were implicated by the Homeowners' claims. Further, an additional $4 million was available under Westchester's excess policy because the phrase "general aggregate" limit was undefined and ambiguous. The phrase could be read as establishing a "general aggregate" limit for excess payments for each coverage in the underlying policy, rather than only establishing a "general aggregate" limit for the entire policy.    On appeal, Westchester argued the term "general aggregate" meant the maximum that applied to all coverages under the entire policy. The Homeowners noted that the term was undefined in the policy. Given the structure of the excess and underlying policies, the maximum must apply individually to each of the underlying coverages, or at least create an ambiguity that made it so. The court agreed with the Homeowners.    Schedule A of Westchester's policy referred to the underlying insurance. It first described the Auto liability policy with a $1 million limit for each occurrence. It then described the CGL policy with a $2 million "General Aggregate" and a $2 million "Products/Completed Operations Aggregate." Therefore, Schedule A listed two aggregates under the CGL portion of the policy. Further, under the Limits of Insurance section, the policy stated there was a $4 million "General Aggregate," and a $4 million "Products/Completed Operations Aggregate."    Given the language of the Westchester policy, the $4 million "General Aggregate" and the $4 million "Products/Completed Operations Aggregate" were applicable only to the CGL coverage because this was the only coverage for which those terms were used in the underlying insurance stated in Schedule A. The "$4,000,000 Each Occurrence" stated in the excess policy's Limits of Insurance provision would likewise appear to correspond to the Auto coverage's "$1,000,000 Each Occurrence" stated in Schedule A. Under this logical reading, the insureds would expect to have $4 million in excess insurance per occurrence under the Auto coverage, with no aggregate, and $4 million in excess insurance, with a $4 million aggregate, under the CGL coverage, or a total of $8 million in excess limits for the two coverages.    Therefore the court upheld the trial court's holding that the Westchester provided an additional $4 million in CGL coverage. 

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Insurance Online : No Additional Insured Status for Building Owner

   Because the contract between the parties failed to state that the insured was obligated to name the building owner as an additional insured, the owner was not an additional insured. Am. Empire Surplus Lines Ins. Co. v. Endurance Am. Specialty Ins. Co., 2016 N.Y. Misc. LEXIS 53 (N.Y. App. Div. Jan. 7, 2016).    Dayton Towers Corporation contracted with Skyline Restoration, Inc. as general contractor to perform work at Dayton's building. Skyline contracted with All Day Restoration Inc. to perform restoration work on the exterior facades. An employee of All Day slipped and fell due to ice and snow on the roof and sued Dayton for personal injuries.     All Day was insured by Endurance. American Empire insured Skyline. After the injured employee's suit was filed, American Empire tendered the defense and indemnification of Dayton as an additional insured under the Endurance policy to All Day and Endurance. Endurance rejected the tender and American Empire filed suit for declaratory judgment. American Empire and Endurance both moved for summary judgment. American Empire argued that Endurance was obligated to defend and indemnify Dayton as an additional insured on a primary basis, and the American Empire's obligations, if any, were excess.    The court determined that Dayton was not an additional insured under the Endurance policy. By endorsement, the Endurance policy provided that additional insured coverage would be provided to entities as "required by written contract." Nowhere in the All Day subcontract with Skyline was it expressly or explicitly stated that All Day would provide additional insured coverage for Dayton.     American Empire relied upon the All Day Subcontract, which provided that "the General Conditions governing this Subcontract shall be the edition of AIA Document A201, General Conditions of the Contract of Construction."  AIA Document A201 stated, 'The Contractor Shall cause the commercial liability coverage required by the Contract Documents to include . . . the Owner. . ." American Empire argued that this language provided Dayton, as the owner of the building, with additional insured status because the language was incorporated into the All Day Subcontract.    The court rejected this argument because AIA Document A210 was not a "written contract" requiring Dayton to be named as an insured. Therefore, American Empire's motion for summary judgment was denied. Endurance's motion for summary judgment declaring it had no duty to defend or indemnify Dayton as an additional insured was granted.

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Insurance Online : Bad Faith Action Barred After Judgment Rendered Breach of Contract Claim

   The Iowa Supreme Court found that a separate action against the insurer for bad faith, filed after judgment was entered against the insurer on breach of contract, was barred by claim preclusion. Villarreal v. United Fire & Cas. Co., 2016 Iowa LEXIS 1 (Jan. 8, 2016).     The insureds' restaurant was severely damaged by a fire on March 8, 2007. The insureds held a commercial property policy with United Fire with coverage limits of $386,400 for building replacement and $374,000 for personal property replacement. The insureds purchased the building and land a year and a half before the fire for $150,000, and the current property tax assessment was $153,000. At an examination under oath, the insureds testified that improvements of $83,500 had been made to the building after purchase. No documentation was presented for the majority of the improvements, however.    In June, the insureds presented a lengthy inventory of personal property lost in the fire. The total claimed value of the inventory was $490,000. Also in June 2007, the insureds' attorney started writing letters to United Fire demanding immediate payment and threatening to sue. In August, one such letter threatened a suit for bad faith on the part of United Fire.      By November, United Fire had paid $24,000 for the insureds' personal property losses and $108,310 for the building. The building payment went entirely to the mortgagee, so the insureds had received nothing for the loss of the building.    The insureds filed a breach of contract suit against Untied Fire on March 7, 2008. Three years later, in March 2011, the jury returned a verdict for the insureds in the amount of $176,690 for the additional unpaid value of the building and $60,212 for the additional personal property.     On June 20, 2011, three months after judgment was entered on the breach of contract action and more than four years after the fire, the insureds filed a new action in bad faith. The trial court granted United Fire's motion for summary judgment, finding that the bad faith action was barred by claim preclusion. Both the breach of contract and bad faith claims arose from the March 8, 2007 fire loss and United Fire's refusal to pay the claim. The court of appeals reversed.    The Iowa Supreme Court noted that a great majority of jurisdictions held that a breach of contract verdict in favor of the insured and against the insurer precluded a subsequent action for first-party bad faith, at least where the bad faith claim was based on events that predated the filing of the breach of contract lawsuit. The court joined these other jurisdictions, determining that a final judgment in the breach of contract case would bar bringing a subsequent, separate bad faith lawsuit. The potential prejudice from introducing evidence relevant only to the insurer's bad faith could be resolved by bifurcating the trial into a breach of contract phase and a bad faith phase.     A different result would be likely where the bad faith claim was based on conduct that occurred after the breach of contract case was filed. But here, the insureds had a basis for alleging bad faith in March 2008, when they filed their original suit, as well as ample time thereafter to amend that suit to add a bad faith claim.

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Insurance Online : ABA Insurance Coverage Litigation Committee Seminar In Early March

   Once again, the Insurance Coverage Litigation Committee of the ABA will hold its annual seminar in Tucson, Arizona from March 3-5, 2016. The agenda is here.    Each year, the conference offers informative, cutting-edge sessions on a variety of insurance-related topics. Participants from across the country include both policy holder and carrier lawyers, judges, risk managers, in-house counsel, and insurance professionals.     The topic for my panel will be "Is There Any End to the Duty to Defend? Coverage, Claims and Bad Faith Issues."    Anyone who is interested or works on coverage issues would find attending this seminar useful.    

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Insurance Online : No Coverage Under Exclusions For Wind and Water Damage

   The Mississippi Supreme Court affirmed the granting of summary judgment to the insurer that there was no coverage under the all risk policy for loss caused by wind and water. Porter v. Grand Casino of Miss., Inc., 2016 Miss. LEXIS 3 (Miss. Jan. 7, 2016).     Cherri Porter's home was destroyed during Hurricane Katrina. The destruction occurred when the barge operated by Grand Casino of Mississippi came loose from its moorings and collided with her home.     Ms. Porter submitted a claim to her insurer, State Farm. The policy excluded loss caused by wind or water damage. Also excluded was "loss that would not have occurred in the absence of an excluded event." Because any loss caused by the barge would not have occurred in the absence of an excluded event - i.e., the flood of storm surge that broke the barge from its moorings - State Farm denied coverage.    Porter sued State Farm for bad faith denial of her claim. In discovery, she admitted there was no other explanation for the barge's movement other than the forces of wind and water. Because the policy excluded loss caused by water, the trial court granted summary judgment to State Farm.     The Mississippi Supreme Court affirmed. State Farm excluded both loss caused by wind damage and loss caused by water damage. The policy unambiguously stated that any loss that would not have occurred absent water damage was not covered. The barge, by itself, would not have collided with Porter's home. The barge did not act independently to cause loss, but instead operated in conjunction with the storm surge to cause the damage. 

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Insurance Online : New Hampshire Court Holds Primary Must Exhaust Before Excess Must Defend

  In responding to a certified question, the New Hampshire Supreme Court held that the excess carrier's duty to defend is not triggered until the primary's insurer's policy is exhausted. Old Republic Ins. Co. v. Stratford Ins Co., 2016 N.H. LEXIS 8 (N.H. Jan. 26, 2016).    Old Republic and Stratford each provided coverage for a a tractor-trailer that collided with a vehicle. The owner of the tractor, Ryder Truck Rentals, was insured by Old Republic. DAM Express leased the tractor from Ryder. Pursuant to the lease, Ryder was responsible for obtaining a policy from the tractor. DAM, however, also purchased a separate policy from Stratford. When the collision occurred, the driver of the tractor-trailer was employed by DAM.     The passengers of the vehicle were injured and sued the driver, DAM and Ryder. Old Republic defended all defendants, but asked Stratford to help pay the defense costs. Stratford refused, contending its coverage for DAM and the driver was excess to Old Republic's policy.     Old Republic sued Stratford, seeking a declaratory judgment that Stratford had an obligation, as a co-primary insurer, to provide coverage and pay a portion of the defense costs. The federal district court ruled that Old Republic provided primary coverage and Stratford provided excess coverage. Under New Hampshire law, however, the duty of an insurer to defense was the same whether its potential liability was as a primary or as an excess carrier. Therefore, even though it considered itself an excess carrier, Stratford was obligated to share equally in the defense costs in the underlying action.    Both parties appealed. The First Circuit certified the question to the New Hampshire Supreme Court, asking when an excess carrier's duty to defend was triggered.     The New Hampshire court adopted the majority rule: where an insured was covered by both a primary policy and an excess policy, the excess carrier was not obligated to participate in the defense until the primary policy limits were exhausted. The court's prior statement on the excess carrier's duty to defend was dicta and did not control the issue now before the court.   

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Insurance Online : The Top Car Commercials of Super Bowl 50

According to overnight Nielsen ratings data, Sunday night’s almost record-breaking Super Bowl 50 was the second highest rated Super Bowl in football history. Forty-nine percent of households with a television tuned in to watch the national event.

Even those who aren’t loyal to either participating team or fans of football watch solely for the much-talked about ads. Commercials are a large part of the quintessential Super Bowl viewing experience and tend to be talked about long after the national event.

A 30-second advertisement during this year’s Super Bowl cost an extravagant $5 million, which checks in at $166,666 per second of air time. And that $5 million doesn’t include production costs or celebrity endorsements, meaning the finalized product costs companies a pretty penny, to say the least.

The USA Today Ad Meter, a live poll administered to several focus groups during the annual telecast of the Super Bowl, tracked reactions to the commercials on a zero-to-10 scale, with 10 being the most popular and zero being the least.

If you were too distracted by consuming copious amounts of chips and guacamole during the commercial breaks and missed a few of the ads, HomeInsurance.com has you covered. We took a look at the highest rated car commercials according to the Ad Meter — because new cars and auto insurance go hand-in-hand, right?

1. Hyundai

Hyundai stole the airwaves, dominating the first quarter, second quarter and halftime with a total of four 30-second ads, three of which came in close to the top according to the Ad Meter. With so much air time, it’s no surprise that the manufacturer ranked at the coveted No. 1 spot when compared to the ad metrics of competitors in their market space. The ad for the Hyundai Genesis highlighted the tech-savvy practicality of the car’s vehicle-tracking capabilities.

“First Date,” receiving a 6.9 metrics score, featured comedian Kevin Hart as an overly protective father taking full advantage of this feature by lending his daughter’s date the vehicle and keeping tabs on their whereabouts throughout the evening.

Hyundai’s second-highest ranking ad, “Ryanville,” earned a score of 6.27 and primarily focused on the safety features of its Genesis sedan, including auto-braking capabilities that engage if you get distracted behind the wheel, helping keep you and your passengers safe.

“The Chase,” Hyundai’s third-highest ranking ad, scored a 6.19 with an ad featuring an adventurous high-speed chase between a couple and two bears, crediting the vehicle’s voice-activated self-starting capabilities.

2. Honda

A 6.13 Ad Meter score for Honda’s “A New Truck to Love” ad caused the automobile manufacturer to come in at second place with its 30-second commercial. Humor is often effective in ads, and this one was no exception. Featuring a herd of sheep singing Queen’s “Somebody to Love,” Honda took a lighthearted approach to advertising its new Ridgeline truck equipped with truck bed audio – the only truck on the market with this capability.

3. Audi

Adventure. Freedom. Reliving youthful glory days. Audi’s “Commander,” with a rating of 6.04, comes in third with its stunningly ethereal 30-second ad. The commercial appealed to adrenaline junkies by comparing the adventure of space exploration to driving the new R8, which has a promised top speed of 205 miles per hour. It also tugged at viewers’ heartstrings with its inclusion of audio from the late David Bowie.

4. Toyota

Toyota produced two ads – “The Longest Chase” and “Heck on Wheels” – which took lighthearted approaches to advertising its Prius. “The Longest Chase” earned an Ad Meter score of 5.97, while the score for “Heck on Wheels” was unavailable. The manufacturer humorously poked fun at the car’s less-than-exciting image by portraying bank robbers escaping the clutches of police officers during a days-long chase, and a morning commute that’s actually enjoyable, respectively. The commercials’ goals were to prove that the vehicle can be both an incredible, powerful car and easy on the environment.

5. Jeep

Perhaps one of the most poignant and emotional ads of the top five, Jeep effectively pulled at its viewers’ heartstrings through a black and white ad aptly named “Portraits,” which earned a ranking of 5.70. The ad’s beautiful storytelling spoke about how Jeep’s drivers are the true creators of the vehicle and that a lifetime of meaningful moments and memories produced while driving a Jeep were what truly made the automobile great. <span></span> “4x4ever,” Jeep’s 60-second ad, scored a 5.21 and aired during the final quarter of the game. Using unique, catchy music and stunning imagery, the ad effectively appealed to the millennial generation with the unspoken promise that owning a Jeep could provide a lifetime of adventure and memories.

HomeInsurance.com Editor Picks

Since not all auto manufacturers’ ads made the cut for the top five based on Ad Meter results, a few of our HomeInsurance.com editors gathered and picked those that we felt deserved a shout.

“The Big Game Meets the Big Day”

Ensuing quite a few laughs from our editorial team and arguably being the most fitting commercial of the big game, Buick’s ad for their new Cascada convertible featured NFL star Odell Beckham Jr. and Emily Ratajkowski. The setting for this ad was a wedding, where a bridesmaid “totally Odell’d” the catch of the bouquet, much to the surprise of the wedding guests. But the biggest surprise (aside from Beckham Jr. being in attendance at the wedding)? The fact that the bride and groom’s stunning getaway car was, in fact, a Buick.

“The Walken Closet”

At HomeInsurance.com, we love a good pun. Kia’s commercial to advertise its newest midsize sedan features Christopher Walken sitting in a couple’s walk-in closet. Walken criticizes the husband in the ad for blending in and walking through life like “beige socks.” Walken encourages him to purchase the new Kia Optima, which he refers to as being like the “world’s most exciting pair of socks.” According to the company’s website, the Optima is “Not Your Average Midsize Sedan,” and stands out with its sleek, sophisticated design and enviable safety features.

“Defy Labels”

Mini Cooper’s “Defy Labels” ad challenged the status quo and the labels that are commonly put on drivers of the vehicle. The ad featured a multitude of celebrities and called out specific stereotypes, making the statement that the Mini Cooper’s new Mini Clubman is an outstanding vehicle for anyone and everyone, regardless of demographic or lifestyle.

“Simply Put”

Though not a car commercial, our editors agreed that “Simply Put” was arguably the best ad of the Super Bowl.

Budweiser’s phenomenal ad in the form of a public service announcement featured Helen Mirren and used a touch of humor while effectively sending a clear, important message regarding the dangers of driving under the influence. Since Mirren is “notoriously frank and insensitive,” she states that anyone who drives drunk is a “short-sighted, utterly useless, oxygen-wasting, human form of pollution.” This advertisement promoted the beer company’s #GiveADamn campaign, which donates one dollar to safe ride programs, such as Uber and Lyft, with every tweeted hashtag.

At HomeInsurance.com, we were incredibly grateful for this announcement and love the fact that such a well-done PSA has garnered so much attention.

Buying a new car? Make sure you’re covered!

If the ads from Super Bowl 50 have you considering purchasing a new vehicle, keep your excitement at bay while searching for an auto insurance policy to protect it. Make sure you find a policy that has enough liability coverage and additional protections to grant you peace of mind on the road.

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Insurance Online : The Top Car Commercials of Super Bowl 50

According to overnight Nielsen ratings data, Sunday night’s almost record-breaking Super Bowl 50 was the second highest rated Super Bowl in football history. Forty-nine percent of households with a television tuned in to watch the national event.

Even those who aren’t loyal to either participating team or fans of football watch solely for the much-talked about ads. Commercials are a large part of the quintessential Super Bowl viewing experience and tend to be talked about long after the national event.

A 30-second advertisement during this year’s Super Bowl cost an extravagant $5 million, which checks in at $166,666 per second of air time. And that $5 million doesn’t include production costs or celebrity endorsements, meaning the finalized product costs companies a pretty penny, to say the least.

The USA Today Ad Meter, a live poll administered to several focus groups during the annual telecast of the Super Bowl, tracked reactions to the commercials on a zero-to-10 scale, with 10 being the most popular and zero being the least.

If you were too distracted by consuming copious amounts of chips and guacamole during the commercial breaks and missed a few of the ads, HomeInsurance.com has you covered. We took a look at the highest rated car commercials according to the Ad Meter — because new cars and auto insurance go hand-in-hand, right?

1. Hyundai

Hyundai stole the airwaves, dominating the first quarter, second quarter and halftime with a total of four 30-second ads, three of which came in close to the top according to the Ad Meter. With so much air time, it’s no surprise that the manufacturer ranked at the coveted No. 1 spot when compared to the ad metrics of competitors in their market space. The ad for the Hyundai Genesis highlighted the tech-savvy practicality of the car’s vehicle-tracking capabilities.

“First Date,” receiving a 6.9 metrics score, featured comedian Kevin Hart as an overly protective father taking full advantage of this feature by lending his daughter’s date the vehicle and keeping tabs on their whereabouts throughout the evening.

Hyundai’s second-highest ranking ad, “Ryanville,” earned a score of 6.27 and primarily focused on the safety features of its Genesis sedan, including auto-braking capabilities that engage if you get distracted behind the wheel, helping keep you and your passengers safe.

“The Chase,” Hyundai’s third-highest ranking ad, scored a 6.19 with an ad featuring an adventurous high-speed chase between a couple and two bears, crediting the vehicle’s voice-activated self-starting capabilities.

2. Honda

A 6.13 Ad Meter score for Honda’s “A New Truck to Love” ad caused the automobile manufacturer to come in at second place with its 30-second commercial. Humor is often effective in ads, and this one was no exception. Featuring a herd of sheep singing Queen’s “Somebody to Love,” Honda took a lighthearted approach to advertising its new Ridgeline truck equipped with truck bed audio – the only truck on the market with this capability.

3. Audi

Adventure. Freedom. Reliving youthful glory days. Audi’s “Commander,” with a rating of 6.04, comes in third with its stunningly ethereal 30-second ad. The commercial appealed to adrenaline junkies by comparing the adventure of space exploration to driving the new R8, which has a promised top speed of 205 miles per hour. It also tugged at viewers’ heartstrings with its inclusion of audio from the late David Bowie.

4. Toyota

Toyota produced two ads – “The Longest Chase” and “Heck on Wheels” – which took lighthearted approaches to advertising its Prius. “The Longest Chase” earned an Ad Meter score of 5.97, while the score for “Heck on Wheels” was unavailable. The manufacturer humorously poked fun at the car’s less-than-exciting image by portraying bank robbers escaping the clutches of police officers during a days-long chase, and a morning commute that’s actually enjoyable, respectively. The commercials’ goals were to prove that the vehicle can be both an incredible, powerful car and easy on the environment.

5. Jeep

Perhaps one of the most poignant and emotional ads of the top five, Jeep effectively pulled at its viewers’ heartstrings through a black and white ad aptly named “Portraits,” which earned a ranking of 5.70. The ad’s beautiful storytelling spoke about how Jeep’s drivers are the true creators of the vehicle and that a lifetime of meaningful moments and memories produced while driving a Jeep were what truly made the automobile great. <span></span> “4x4ever,” Jeep’s 60-second ad, scored a 5.21 and aired during the final quarter of the game. Using unique, catchy music and stunning imagery, the ad effectively appealed to the millennial generation with the unspoken promise that owning a Jeep could provide a lifetime of adventure and memories.

HomeInsurance.com Editor Picks

Since not all auto manufacturers’ ads made the cut for the top five based on Ad Meter results, a few of our HomeInsurance.com editors gathered and picked those that we felt deserved a shout.

“The Big Game Meets the Big Day”

Ensuing quite a few laughs from our editorial team and arguably being the most fitting commercial of the big game, Buick’s ad for their new Cascada convertible featured NFL star Odell Beckham Jr. and Emily Ratajkowski. The setting for this ad was a wedding, where a bridesmaid “totally Odell’d” the catch of the bouquet, much to the surprise of the wedding guests. But the biggest surprise (aside from Beckham Jr. being in attendance at the wedding)? The fact that the bride and groom’s stunning getaway car was, in fact, a Buick.

“The Walken Closet”

At HomeInsurance.com, we love a good pun. Kia’s commercial to advertise its newest midsize sedan features Christopher Walken sitting in a couple’s walk-in closet. Walken criticizes the husband in the ad for blending in and walking through life like “beige socks.” Walken encourages him to purchase the new Kia Optima, which he refers to as being like the “world’s most exciting pair of socks.” According to the company’s website, the Optima is “Not Your Average Midsize Sedan,” and stands out with its sleek, sophisticated design and enviable safety features.

“Defy Labels”

Mini Cooper’s “Defy Labels” ad challenged the status quo and the labels that are commonly put on drivers of the vehicle. The ad featured a multitude of celebrities and called out specific stereotypes, making the statement that the Mini Cooper’s new Mini Clubman is an outstanding vehicle for anyone and everyone, regardless of demographic or lifestyle.

“Simply Put”

Though not a car commercial, our editors agreed that “Simply Put” was arguably the best ad of the Super Bowl.

Budweiser’s phenomenal ad in the form of a public service announcement featured Helen Mirren and used a touch of humor while effectively sending a clear, important message regarding the dangers of driving under the influence. Since Mirren is “notoriously frank and insensitive,” she states that anyone who drives drunk is a “short-sighted, utterly useless, oxygen-wasting, human form of pollution.” This advertisement promoted the beer company’s #GiveADamn campaign, which donates one dollar to safe ride programs, such as Uber and Lyft, with every tweeted hashtag.

At HomeInsurance.com, we were incredibly grateful for this announcement and love the fact that such a well-done PSA has garnered so much attention.

Buying a new car? Make sure you’re covered!

If the ads from Super Bowl 50 have you considering purchasing a new vehicle, keep your excitement at bay while searching for an auto insurance policy to protect it. Make sure you find a policy that has enough liability coverage and additional protections to grant you peace of mind on the road.

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Read more.. bloggeradsenseo

Insurance Online : Determination That Title Insurer Did Not Act in Bad Faith Vacated and Remanded

   In an important decision regarding bad faith and the application of the work product doctrine to work performed by an insurer's in-house counsel, the Hawaii Supreme Court vacated the Intermediate Court of Appeals's upholding the trial court's award of summary judgment to a title insurer on the issue of bad faith. Anastasi v. Fid. Nat'l Title Ins. Co., 2016 Haw. LEXIS 30 (Feb. 4. 2016).    Llyod Anastasi loaned Alajos Nagy $2.4 million. The loan was secured by a mortgage on property. After Nagy executed the $2.4 million mortgage, a warranty deed was signed by Paul Stickney and purported to deed the property from Stickney to Nagy in exchange for $10 in consideration. Fidelity issued Anastasi a title insurance policy on the property in the amount of $2.4 million. The policy promised to provide a defense where a third party asserted a claims adverse to the interest of the insured.     In November 2005,  Stickney sued to quiet title against Nagy and Anastasi alleging that Stickney's signature had been forged on the warranty deed. Anastasi tendered the suit to Fidelity. In a letter from Elizabeth McGinnity, Senior Vice-President and Major Claims Counsel for Fidelity, Fidelity accepted the defense under a reservation of rights and appointed Jade Lynne Ching as defense counsel.     Ching wrote an introductory letter to Anastasi, noting that she anticipated Fidelity would provide recommendations and instructions regarding the steps and procedures to be taken in defending or settling the claim.     On February 13, 2006, McGinnity and Ching received a letter from Clifford Frieden, an attorney retained by Fidelity to provide coverage advice and investigate the allegations made in the Stickney lawsuit. Frieden compared Stickney's signature to the signature on the warranty deed and thought they were different. Further, the driver's license number and the expiration date of the license recorded by the notary were different from Stickney's actual driver's license number and expiration date.     The circuit court granted Stickney's motion for summary judgment. Ching recommended that an appeal not be filed because, although summary judgment should not have been issued, Anastasi would not be able to establish the validity of the Warranty Deed in subsequent proceedings. McGinnity, however, instructed that an appeal be filed. Although an appeal was filed, but the parties eventually stipulated to dismiss the appeal. Fidelity paid Anastasi $2.4 million under the policy.    Anastasi then filed suit against Fidelity for breach of contract and bad faith in delaying payment because the meaningless appeal was pursued.     Anastasi moved to compel the production of documents that Fidelity had withheld because of  attorney-client privilege or work product. McGinnity was listed as either the recipient or author on many of the documents listed in the privilege log. After an in camera review, the trail court held that Fidelity's assertion of attorney-client privilege and/or work product was proper. The circuit court then granted Fidelity's motion for summary judgment on the bad faith issue because Fidelity acted reasonably in its interpretation of the policy provisions.     The ICA ruled that because McGinnity acted in a dual capacity as in-house counsel and claims adjuster, the circuit court abused its discretion in ruling that all of the McGinnity documents were covered by attorney-client privilege or work product.The ICA's decision is summarized here. Further, the circuit court erred in determining that Fidelity acted reasonably as a matter of law, and vacated the summary judgment award. Finally, the circuit court did not err in determining that Fidelity did not control or direct Ching's representation of Anastasi.    The Hawaii Supreme Court first determined that the ICA erred in determining that a presumption existed whereby documents prepared before an insurer made a final decision on an insured's claim were prepared in the ordinary and routine course of an insurer's business and were not work product. Such a presumption was not required under Hawaii law. The issued was remanded to allow the circuit court to determine whether the McGinnity documents were prepared because of the prospect of litigation, and therefore considered work product.    On the bad faith issue, there was evidence that Fidelity knew within four months of receiving the claim that the warranty deed was forged. Yet, Fidelity did not address how proving the fraud or forgery in the Stickney lawsuit would have affected coverage under the policy. Therefore, it was error to determine, as a matter of law, that Fidelity's actions following its knowledge that the deed was forged were reasonable. The issue was remanded. Fidelity would have the opportunity to present evidence as to why its actions were in good faith. Although Fidelity argued a title insurer should be excluded from the enhanced standard of good faith when claims were defended under a reservation of rights, the court determined there was nothing distinctive about title insurance that would eliminate the potential for conflict when a reservation of rights was issued.     Finally, viewing the evidence in the light most favorable to Anastasi, the evidence was sufficient to raise a genuine question as to whether Ching allowed Fidelity to direct or regulate her professional judgment. Fidelity's Claims Handbook expressly stated, "If the outcome of a suit is unfavorable to the insured, the insurer may determine, in its sole discretion, whether or not to appeal. Further, Ching's letter to Anastasi stated Fidelity would provide recommendations and instructions on the steps and procedures to be taken in defending or settling the claim. Therefore, there was a question of fact as to whether Ching breached her ethical duties.

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Insurance Online : Your Work Exclusion Applies to Damage to Tradesman's Property, Not Damage to Other Property

   The New Mexico Court of Appeals presented a cogent analysis of claims for construction defects and the application of the "your work" exclusion under a CGL policy in Pulte Homes of New Mexico, Inc. v. Indiana Lumbermens Ins. Co., 2015 N.M. App. LEXIS 134 (N. M. Ct. App. Dec. 17, 2015).    Pulte built 107 homes. Pulte contracted with 'Western Building Supply (WBS) to provide windows and sliding glass doors for the homes. Pulte was named as an additional insured under WBS's policy with Lumbermens (ILM).    In 2007, a large group of homeowners sued Pulte, alleging numerous construction defects in their homes. Among the defects were  windows that leaked and sliding glass doors that stuck and did not close completely. Many of the homeowners arbitrated their claims against Pulte. In May 2009, Pulte tendered its first demand for a defense to ILM. The arbitration award against Pulte found that windows and doors did not operate properly and had been replaced by Pulte.      ILM denied the tender. Pulte filed a third-party complaint against ILM.     In March 2012, Pulte tendered to ILM the fifth amended complaint filed by the homeowners which included allegations that there were cracks in the stucco above the sliding glass doors and windows. ILM continued to deny that it had a duty to defend Pulte.    ILM moved for summary judgment and the trial court granted the motion. Pulte appealed.    The appellate court first concluded that the facts presented in the May 2009 tender constituted allegations of physical injury to tangle property under the policy. Physical injury to the windows and sliding glass doors arguably occurred because the arbitration award referred to their "deterioration" and stated that they needed to be "replaced" as opposed to merely re-installed.    Nevertheless, ILM argued there was no occurrence because the homeowners' claims involved defective windows and doors and/or defective installation of the windows and doors. Therefore, no accident occurred because faulty workmanship did not involve the fortuity required to constitute an accident. The court disagreed. Because the definition of "occurrence" did not expressly state that faulty workmanship can never constitute an accident and did not limit the term's effect to a particular class of tangible property, the alleged property damage was caused by an alleged "occurrence."     Nevertheless, ILM asserted that even if the May 2009 tender described an occurrence, the "your work" exclusion applied because the only property damage alleged in the May 2009 tender was WBS's work itself - the windows and sliding glass doors - and not to other property. The court agreed. The policy's terms "you" and "your" applied only to WBS. Thus, even though Pulte was an "insured" under the policy, the "your work" exclusion referred only to work performed by WBS.     The March 2012 tender, however, contained allegations tending to show that the windows and sliding glass doors caused damage to some of the homeowners' other property, namely the stucco around the windows. Because the facts did not show that the stucco around the windows was WBS's work, the "your work" exclusion did not preclude coverage. Therefore, the March 2012 tender was sufficient to allege a claim covered by the  policy, thereby triggering ILM's duty to defend Pulte as of the date of that tender.   

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Insurance Online : Pollution Exclusion Prevents Coverage for Injury Caused by Insulation

   In a per curiam decision, the Fifth Circuit affirmed the district court's holding that the pollution exclusion barred coverage for bodily injury caused by the insured's insulation. Evanston Ins. Co. v. Lapolla Industries, Inc., 2015 U.S. App. LEXIS 22552 (5th Cir. Dec. 23, 2015).    The homeowners' contractors installed spray polyurethane foam (SPF) insulation as part of a renovation project in the home. Lapolla manufactured the SPF. Shortly after the insulation was installed, the homeowners smelled strong odors and suffered respiratory distress, causing them to leave the home. The homeowners sued the contractor and various subcontractors for negligence and breach of contract. A third party complaint was filed against Lapolla. The homeowners also amended their complaint to assert a products-liability claim against Lapolla.     Lapolla tendered to its CGL carrier, Evanston. Relying on the pollution exclusion, Evanston denied coverage. The policy excluded coverage for damages that "would not have occurred . . . but for the actual, alleged or threatened discharge, dispersal, seepage, migration release or escape of pollutants . . . ." "Pollutants" were defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, electromagnetic fields and waste."     Evanston filed suit seeking a declaratory judgment that it had no duty to defend or indemnify. Both parties moved for summary judgment. Relying on the pollution exclusion, the district court granted summary judgment to Evanston.    The Fifth Circuit affirmed. The homeowners alleged that they suffered adverse health effects because of the vapors from the SPF insulation. They alleged that there were strong odors, and that they suffered upper respiratory injuries. All of the allegations fell under the pollution exclusion, entitling Evanston to summary judgment. 

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Insurance Online : Hawaii Bill Proposes Procedures for Claim Adjusters

    HB 1991 would regulate the inspection procedures for utilizing claim adjusters for homeowners insurance claims. The complete bill is here.     The bill states that when a claim is filed, the insurer will select a claim adjuster mutually agreed upon by the parties and paid for by the insurer. In the event there is no agreement on the selection of the claim adjuster, the matter will be referred to the insurance commission, arbitration, or the circuit court to select a claim adjuster.      Once selected, the claim adjuster will have forty-five days to examine the damaged property. After receiving the settlement offer from the claim adjuster, the policyholder can select a contractor or have the insurer select a licensed contractor to complete the repairs for the amount set forth in the settlement offer.     While the stated purpose of the bill is to protect consumers, the process is likely become expensive if the selection of the claim adjuster is contested. Policyholders may simply concede to the insurer's selection of the claim adjuster to avoid an expensive fight over the issue.    Thanks to Kelly Lewis, Vice President, Pacific Region Property Claim Manager at Chubb for notifying me about this bill.

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