Observers of filing trends in personal injury mesothelioma matters alleging exposure to talc contaminated with asbestos have noted that the bankruptcy filing of a predominant defendant in those matters did little to slow the pace of such filings. Instead, as the filing of new matters continued, the number of defendants named in such filings substantially increased. In an … [Read more...] about Talc-Related Matter Filings Predictably Increase, As New Bankruptcies Are Filed
Case Law
I Shall (Not) Be Released: With Purdue Pharma Decision, US Supreme Court Remakes Chapter 11 Landscape
They say every man needs protection, they say that every man must fall.1 For over 40 years, “the bankruptcy community has recognized the resolution of mass tort claims as a widely accepted core function of bankruptcy courts,” and a “key feature in every mass tort bankruptcy” has been the non-debtor release.2 These releases are granted in favor of parties that have not … [Read more...] about I Shall (Not) Be Released: With Purdue Pharma Decision, US Supreme Court Remakes Chapter 11 Landscape
Supreme Court Resolves FAA Circuit Split, Limiting Appealability of Orders Compelling Arbitration
The Supreme Court recently resolved a Circuit split addressing how district courts should proceed when they have found that all claims in a dispute should be compelled to arbitration. Smith v. Spizzirri, No. 22-1218, --- S.Ct. ----, 2024 WL 2193872 (U.S. May 16, 2024). The Federal Arbitration Act (“FAA”) provides that, once a court has referred a matter to arbitration, “the … [Read more...] about Supreme Court Resolves FAA Circuit Split, Limiting Appealability of Orders Compelling Arbitration
Chaffetz Lindsey Launches New York Appellate Insurance Reports (NYAIR)
February 2024 ─ Chaffetz Lindsey is excited to launch of a new firm publication, the New York Appellate Insurance Reports (NYAIR). NYAIR will provide timely summaries of New York appellate court and Second Circuit decisions concerning complex commercial insurance and reinsurance disputes. Coverage includes decisions back to January 1, 2023 and we will add new reports as future … [Read more...] about Chaffetz Lindsey Launches New York Appellate Insurance Reports (NYAIR)
New York Court Of Appeals Rules That Presence Of COVID-19 Virus At Insured Property And Resulting Business Closures Do Not Constitute “Direct Physical Loss Or Damage” Under Property Policy
For more information, please visit the Insurance Law Alert Resource Center. Holding The New York Court of Appeals ruled that allegations of the COVID-19 virus at insured property locations and the resulting business closures and accommodations resulting from the virus do not state a claim for “direct physical loss or damage” under a property policy. Consolidated Rest. … [Read more...] about New York Court Of Appeals Rules That Presence Of COVID-19 Virus At Insured Property And Resulting Business Closures Do Not Constitute “Direct Physical Loss Or Damage” Under Property Policy
Arbitration in the Courts
Southern District of New York twice finds that, under the McCarran Ferguson Act, Louisiana statute barring arbitration of insurance disputes reverse-preempts the New York Convention: Arbitration agreements were not “forum selection clauses” exempted from Louisiana statute’s proscription on arbitrating insurance disputes. Certain Underwriters at Lloyds, London et al v. Mpire … [Read more...] about Arbitration in the Courts
New York Preserves Subrogation Rights
The insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the investigation process is determining what rights the insured has. Whether or not the insured can settle with the tortfeasor and that whether the settlement … [Read more...] about New York Preserves Subrogation Rights
Pesky Facts Result in a Denial of Summary Judgment in a Post-Settlement Allocation Case
Since the 1970s cedents and reinsurers have been battling over long-term environmental pollution damage. Disputes have arisen over the number of retentions that the cedent should take, the manner in which settlement with the insured should be allocated and other issues. In a recent case, a reinsurer sought summary judgment on a cedent’s breach of contract claim over a specific … [Read more...] about Pesky Facts Result in a Denial of Summary Judgment in a Post-Settlement Allocation Case
Back-to-Back and Belly-to-Belly: Coextensive Reinsurance Coverage
When a ceding insurer purchases reinsurance, it generally expects that its reinsurer will respond to the ceding insurer's claims to the same extent that the ceding insurer covers the underlying claim unless otherwise stated in the reinsurance contract. In other words, ceding insurers often expect back-to-back reinsurance coverage. While this is not true in every reinsurance … [Read more...] about Back-to-Back and Belly-to-Belly: Coextensive Reinsurance Coverage
Arbitration in the Courts
DC district court reaches conflicting decisions whether EU high court’s landmark decision deprives US courts of jurisdiction to enforce investors’ arbitral awards against Spain. 9REN Holding SARL v. Kingdom of Spain, No. 1:19-cv-1871-TSC (D.D.C. Feb. 15, 2023); Blasket Renewable Investments LLC v. Kingdom of Spain, No. 21-3249 (RJL) (D.D.C. March 31, 2023). The Slovak … [Read more...] about Arbitration in the Courts
Third Circuit Reverses; Dismisses LTL’s “Texas Two-Step” Bankruptcy Case
In the AIRROC Annual 2022, the authors published “Dancing to the Beat of Divisive Mergers; The ‘Texas Two-Step’ Bankruptcy Strategy,” summarizing the strategy and discussing several recent cases.1 Most notably, the LTL Management, LLC (Johnson & Johnson) case was discussed in detail. In that case, the talc claimants and others filed a motion to dismiss, arguing that the … [Read more...] about Third Circuit Reverses; Dismisses LTL’s “Texas Two-Step” Bankruptcy Case
Arbitration in the Courts
Functus Officio gets a new exception: Second Circuit holds that district courts remand of unreasoned award to arbitrator does not violate the functus officio doctrine. Smarter Tools, Inc. v. Chongqing SENCI Import & Export Trade Co., Ltd., No. 21-724, (2d Cir. January 17, 2023). The functus officio doctrine – Latin for having “completed one’s office” – dictates … [Read more...] about Arbitration in the Courts
Third Circuit Dismisses Chapter 11 Filing by Johnson & Johnson Subsidiary Formed to Segregate Talc Liabilities
In a closely watched decision, the Court of Appeals for the Third Circuit ordered the dismissal of the Chapter 11 petition of LTL Management, LLC, the entity created by Johnson & Johnson to hold J&J’s talc-related liabilities in a divisional merger process under Texas law. Reversing the Bankruptcy Court for the District of New Jersey, the Third Circuit held that … [Read more...] about Third Circuit Dismisses Chapter 11 Filing by Johnson & Johnson Subsidiary Formed to Segregate Talc Liabilities
Follow-the-Fortunes Rejected By 11th Circuit
Follow-the-fortunes is a reinsurance concept that often is misconstrued. Some wish to impose it on every reinsurance contract regardless of whether a follow-the-fortunes clause exists. Cedents invoke it to compel payment from their reinsurers. In a recent case, the Eleventh Circuit had an opportunity to weigh in on whether the follow-the-fortunes doctrine should be inferred … [Read more...] about Follow-the-Fortunes Rejected By 11th Circuit
QuickStudy: Dobbs and the Future of Health Plan Abortion Coverage
The Supreme Court’s June 24 ruling in Dobbs v. Jackson Women’s Health eliminating the constitutional right to an abortion, and leaving states to regulate or restrict the procedure, has created a complex and tangled web of federal and state laws surrounding abortion. The challenge is particularly fraught for health plans that wish to provide coverage of medically necessary … [Read more...] about QuickStudy: Dobbs and the Future of Health Plan Abortion Coverage
The Real Issue In The Sex In A Car Case That Everyone Is Talking About
And Now for Something Completely Different…Auto Insurer Covers Insured’s Dashboard Dalliance?? In M.O. v. GEICO General Ins. Co. No. WD84722 (Mo. Ct. App. June 7, 2022), a Missouri appellate court has confirmed a $5.2M arbitration award against GEICO in favor of petitioner M.O. who alleged that having unprotected sex with GEICO’s insured in his 2014 Hyundai Genesis caused her … [Read more...] about The Real Issue In The Sex In A Car Case That Everyone Is Talking About
Arbitration in the Courts
Absent diversity of citizenship, federal courts lack jurisdiction over petitions to confirm or vacate domestic arbitration awards, even where the underlying claims arise under federal law. U.S. Federal courts are courts of limited jurisdiction, which Congress and the Constitution have defined to include two main categories: “diversity” jurisdiction (suits between citizens of … [Read more...] about Arbitration in the Courts
Massachusetts Federal Court Rejects Adria Towers, Finds Construction Defects Not an “Occurrence”
In an important ruling for insurers, U.S. District Court Judge Patti Saris found that Massachusetts does not follow the position taken in Cypress Point Condo Association v. Adria Towers, LLC, 226 N.J. 403, 418 (2016), i.e., it does not hold that "faulty workmanship claims [should be recognized] as ... an 'occurrence,' thus triggering coverage, 'so long as the allegedly … [Read more...] about Massachusetts Federal Court Rejects Adria Towers, Finds Construction Defects Not an “Occurrence”
Party-Appointed Arbitrators on the Precipice
Concerns about bias and prejudice from multiple repeat appointments have plagued party-appointed arbitrators for years. This is true of international arbitration, commercial arbitration and, of course, insurance and reinsurance arbitration. Recently, there have been several cases in the United States and the United Kingdom addressing implicit bias, repeat players and the need … [Read more...] about Party-Appointed Arbitrators on the Precipice
Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market
Abstract: Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal because, among other reasons, it explains how … [Read more...] about Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market
