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Cozen’s Melissa White to Speak at the 2015 CLM Annual Conference

The Claims and Litigation Management Alliance (CLM) is a national organization created to meet the needs of insurance professionals in the claims and litigation management fields.  Founded in 2007, CLM currently has over 25,000 members.  It holds an annual conference each year with collaborative educational sessions focused on all facets of the insurance industry that is attended by 1800 people. This year’s conclave is in Palm Desert, California on Wednesday, March 25th, through Friday, March 27th, and one of the speakers is Cozen’s Melissa O’Loughlin White.  A link to the conference can be found here.  Melissa will be speaking at a Thursday afternoon session on “Institutional Bad Faith:  Are You Insulated?”  The presentation will share strategies crafted to reduce corporate

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Arizona Court of Appeals Finds No Implied Waiver of Insurer’s Attorney Client Privilege by Defending a Bad Faith Case Based on Subjective Good Faith Defense

  A recent Arizona Court of Appeals decision, Everest Indemnity Insurance Company v. the Hon. John Rea, Judge of Sup. Ct of State of Az., 2015 WL 195450, addresses the attorney-client privilege in a bad faith case.  Everest examines a highly fact sensitive and jurisdictionally specific issue of when an “implied waiver” of the attorney-client privilege occurs, even though the insurer has not asserted advice of counsel as a defense to a bad faith claim.  The Court held that as long as the insurer had not put the legal advice that it received at issue in the pending litigation, an insurer defending against a bad faith case based on its subjective good faith, did not waive the attorney client privilege. 

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Florida’s Claims Administration Statute – Use It or Lose Your “Coverage Defense”

  Any Insurer issuing liability policies in Florida should be aware of the requirement of Florida’s Claims Administration Statute, § 627.426, or risk waiving viable “coverage defenses.”  The definition of “coverage defense” under the statute has been the subject of considerable litigation in Florida for many years.  Under current Florida law, however, “coverage defense” refers to an insurer’s reliance upon a insured’s alleged breach of a policy condition in a third-party liability policy.  In most instances, “coverage defense” indicates: late notice of a claim; failure to cooperate; refusal to submit to an examination under oath; or a settlement without the consent of the insurer. The first section of Florida’s Claims Administration Statute permits an insurer to take certain actions without

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Nevada Court Holds One-Year Suit Limitation Provision Does Not Bar Bad Faith or UCPA Claims

Property insurance policies commonly contain a suit limitation provision which generally provides that an insured cannot file suit against the insurer unless the action is brought within one or two years of the date of loss.  While such provisions are generally enforced throughout the country, jurisdictions vary on the type of claims that suit limitation bars.   Recently, in Queensridge Towers, LLC v. Allianz Global Risks U.S. Ins. Co., 2014 WL 7359093, 2014 U.S. Dist. LEXIS 177433 (D.Nev., Dec. 24, 2014), a district court in Nevada held that a one-year suit limitation provision applies only to breach of contract claims against the insurer and does not bar bad faith or UCPA claims. Plaintiff was the owner and developer of a condominium

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Texas Supreme Court Accepts a Concurrent Cause and Ordinance or Law Matter Involving Hurricane Ike

On October 3rd, the Texas Supreme Court granted a policyholder’s petition for review in a Hurricane Ike matter that potentially gives Texas’ highest court an opportunity to address several important insurance issues.  They include concurrent cause in wind and flood losses and the insured’s burden of proof under policy provisions affording coverage when local ordinances mandate demolition and reconstruction and the authorities’ decision that those ordinances were triggered fails to differentiate between loss attributable to covered perils and loss attributable to excluded ones.  The case that is going up on appeal is Lexington Ins. Co. v. JAW The Pointe, LLC, 2013 WL 3968445, 2013 Tex. App. LEXIS 9602 (Tex.Ct.App. 2013). Policyholder JAW The Pointe owned an apartment complex in Galveston

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Alabama Supreme Court Clarifies (And Criticizes) Its Bad Faith Jurisprudence

In an opinion released for publication on August 14th, 2014, one year after issuance, the Alabama Supreme Court unanimously held that the state has but one tort of bad faith, albeit with two separate methods of proof, and that both of those – bad faith refusal to pay and bad faith refusal to investigate – require the policyholder to show that the insurer had no “reasonably legitimate or arguable reason” for not paying.  State Farm Fire & Cas. Co. v. Brechbill, 144 So.3d 248, 2013 Ala. LEXIS 126  (Ala., Sept. 27, 2013) also featured an unusual concurrence by Chief Justice Roy S. Moore in which the Chief Justice stated that he believed that the thirty-year-old judicially-adopted tort of bad faith

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Florida Appellate Court: “Coverage Liability” Can Be Basis for Bad Faith in Suit Involving First Party Appraisal

On Wednesday, Florida’s Fourth District Court of Appeal issued an opinion concerning the prerequisites for bringing bad faith claims in Florida.  In an en banc ruling, the Court held in Cammarata v. State Farm Florida Ins. Co., 2014 WL 4327948 (Fla.Dist.Ct.App., Sept. 3, 2014) that once coverage liability and the extent of damages under an insurance policy have been determined, a bad faith action has accrued even if there has yet to be any finding of breach of contract liability. The case arose from a claim dispute between Joseph and Judy Cammarata and their property insurer regarding coverage for repairs for Hurricane Wilma damages their home.  After the claim was initially denied, the parties agreed to proceed with an appraisal of

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Texas Supreme Court Weighs In Again on the Scope of the Material Breach Doctrine

Last week, the Texas Supreme Court handed down an opinion that involved the material breach doctrine.  The doctrine — adopted twenty years ago in Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691 (Tex. 1994) and subsequently applied in PAJ, Inc. v. Hanover Ins. Co., 243 S.W.3d 630 (Tex. 2008), Prodigy Commc’ns  Corp. v. Agric. Excess & Surplus Ins. Co., 288 S.W.3d 374 (Tex. 2009), and Lennar Corp. v. Markel  Am.  Ins. Co., 413 S.W.3d 750 (Tex. 2013) – stands for the proposition that if the insurer receives its reasonably anticipated benefit despite an insured’s breach, then the breach is immaterial and the insurer is neither  prejudiced nor excused from performance. In the four cases cited above, policyholders were held entitled

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Water Loss Case Gives Rise to Dispute Over Bad Faith Standard For ‘Genuine Dispute’ and Admissibility of Expert Evidence

In a recent decision in the case of Pyramid Technologies, Inc. v. Hartford Casualty Ins. Co., 752 F.3d 807 (9th Cir., May 19, 2014), the Ninth Circuit, relying on California law upheld a grant of summary judgment dismissing the insured’s business interruption claim as speculative and, by a split decision, reversed in part and remanded in part the trial court’s exclusion of the testimony from the insured’s expert witnesses under Daubert standards.  In addition, and most importantly, it also reversed a grant of summary judgment  concerning the insurer’s “genuine dispute” defense to the insured’s bad faith claims, holding that bad faith was an issue for the factfinder under the facts of the case. In an upcoming Alert, Joann Selleck of

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Nejat Ahmed Presents At The ACI 26th National Advanced Forum On Bad Faith Litigation in Miami, Florida

The American Conference Institute is holding the 26th National Advanced Forum on Bad Faith Litigation from November 21st to November 22nd in Miami, Florida. The forum shapes the future of bad faith litigation strategies for leading outside counsel, in-house counsel and claims professionals in the insurance industry. Nejat Ahmed, a member in Cozen O’Connor’s Houston office, will be present to speak on how to recognize the red flags to avoid bad faith set ups.  For more information regarding the 26th National Advanced Forum on Bad Faith Litigation, click here. About The Author

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Avoiding Insurance Bad Faith
Cozen O’Connor represents insurance clients in jurisdictions throughout the U.S. against statutory and common law first- and third-party extracontractual claims for actual and consequential damages, penalties, punitive and exemplary damages, attorneys’ fees and costs, and coverage payments. Whether bad faith claims are addenda to a broader coverage matter or are central to the complaint, Cozen O’Connor attorneys know how to efficiently respond to extracontractual causes of action. More
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