Summer may be winding down, but the courts are still smiling on policyholders. The three cases discussed in this week’s newsletter present some big wins for insureds.
Continuing the trend of finding coverage for insureds who have been sued for violating the Telephone Consumer Protection Act, the Missouri Supreme Court determined that the $500-per-occurrence damages under the act are not “fines.” The unanimous decision provides further support for insureds to argue that damages and settlements pursuant to the TCPA are not punitive in nature and are therefore insurable.
A D&O policyholder scored a victory when a New York federal court determined not only that allegations of physical and sexual abuse by a Jewish Community Center executive were covered by the policy but also that the insurer waived its right to deny coverage. New York insurance law requires that insurers must disclaim coverage “as soon as reasonably possible.” The JCC’s insurer waited 105 days – after having two years’ prior notice of the criminal allegations against the executive – and therefore lost its right to deny coverage, the court said.
Finally, in Texas, the state’s highest court ruled strongly in favor of policyholders by determining that a construction company should be indemnified for the costs of a voluntary remediation program – even though the insurer did not consent. The four-year project involved more than 450 houses and cost about $6 million, all of which the court held the insurer must pay, as it failed to prove that it was prejudiced by the company’s efforts.