Indoor Air Exclusion Precludes Coverage for Alleged Carbon Monoxide Poisoning
Ashley L. Conaghan, Associate in the Chicago Office
In Siloam Springs Hotel, LLC v. Century Surety Co., the District Court held that the liability insurer owed no coverage obligations to its insured for carbon monoxide claims because the Mold, Fungi, Virus, Bacteria, Air Quality, Contaminants, Minerals or Other Harmful Materials Exclusion precluded coverage. 2014 U.S. Dist LEXIS 65935 (W.D. Okla. May 14, 2014).
Siloam Springs Hotel, LLC (Siloam) obtained a liability policy from Century Surety Co. (Century) which covered its hotel in Arkansas. Several hotel guests were allegedly injured when carbon monoxide leaked into the air from the hotel’s swimming pool heater. Siloam sought coverage for these claims under its policy but Century denied coverage based on the Mold, Fungi, Virus, Bacteria, Air Quality, Contaminants, Minerals or Other Harmful Materials Exclusion (the "Indoor Air Exclusion"). The Indoor Air Exclusion provided, in part, that there was no coverage for "bodily injury arising out of, caused by, or alleging to be contributed in any way by any toxic, hazardous, noxious, irritating pathogenic or allergen qualities or characteristics of indoor air regardless of cause."
In subsequent coverage litigation, Siloam and Century filed cross-motions for summary judgment. At issue was whether the policy provides coverage for the alleged bodily injuries and, specifically, whether the Indoor Air Exclusion barred coverage. In its motion, the insured argued that the Indoor Air Exclusion was ambiguous and that it only applied to inherent, ongoing air quality attributes and not to an isolated, sudden, one-time event. Otherwise, the insured argued, the Indoor Air Exclusion was overbroad and would lead to absurd results. Century argued that the Indoor Air Exclusion is unambiguous and applies to injuries caused by toxic characteristics of indoor air, including carbon monoxide, based on the plain language of the exclusion.
The court agreed with Century, finding the Indoor Air Exclusion unambiguous. The court reasoned that while the exclusion is broad, the exclusion’s title and the specific language is clear based on its plain, ordinary language. The court also rejected the insured’s argument that the Indoor Air Exclusion applies only to ongoing attributes of indoor air and not sudden, isolated events. Relying on the language of the exclusion, including the "regardless of cause language," the court held that the Indoor Air Exclusion applies to toxic air caused by one-time incidents with a toxic gas like carbon monoxide. In other words, the Indoor Air Exclusion is not limited to inherent, ongoing or continuous attributes of indoor air such as the development of mold, fungi or other degradation of structure. Consequently, the court held that the Indoor Air Exclusion barred coverage for the alleged bodily injuries from the carbon monoxide leak.
In this case, both the exclusion’s title and inclusion of language on "cause" foreclosed the insured’s attempt to obtain coverage by arguing ambiguity. The court’s ruling emphasizes the importance of carefully drafted exclusions.
The Insurer’s Hometown Advantage: Limitations on Insured’s Recovery of Attorney Fees for Out-of-State Counsel
Katherine K. Liner, Partner in the Orange County Office
In Crossman Communities of North Carolina, Inc. v. Harleysville Mutual Insurance Company, 2014 U.S. Dist. LEXIS 70878, a May 23, 2014, ruling by the U.S. District Court for the District of South Carolina significantly reduced the amount of attorney fees and costs owed by the insurer in light of the court’s finding that the use of out-of-state coverage counsel was unnecessary in enforcing the insured’s claim for policy benefits.
After the court ruled the insurer had a duty to defend an underlying action, and pay $1,087,998 to the insured for defense costs in the underlying action, the insured sought recovery of attorney fees and costs incurred in the coverage action for the insurer’s breach of the duty to defend.
The insured sought over $1.1 million based on costs and fees for 1,978 hours of attorney time and 792 hours of paralegal time billed by two firms: local counsel in South Carolina and the insured’s long-standing coverage counsel located in Washington, D.C., which billed the majority of the time.
The court applied a three-step process for making the attorney award, including determination of a "loadstar figure" by multiplying the number of reasonable hours by a reasonable rate, subtracting fees for hours spent on unsuccessful claims and awarding a percentage of the amount, depending on the degree of success.
The court rejected the insurer’s arguments that attorney bills were duplicative and that they contained vague entries because specific entries were not identified. In addition, the court rejected the insurer’s request for a reduction of fees for unsuccessful motions, finding that the work was not "unsuccessful" given the insured’s success on the duty to defend claim. However, the court ruled that recoverable attorney fees for the coverage litigation were limited to fees related to the dispute between the insured and the insurer, not other parties. Because the insured did not adequately segregate the time spent on various claims, the court reduced the number of hours incurred for the litigation by a quarter. In addition, the court deducted 10% of the fees and costs that were incurred in connection with the insurer’s duty to indemnify, which was deemed "very small" compared to the amount of the attorney fees and costs the court ruled could be recovered. The most significant reduction in the award resulted from the court’s findings regarding the insured’s use of out-of-state counsel.
The court determined the reasonable hourly rate in the loadstar method is based on the prevailing market rate in the community where the action is pending. The insurer did not object to the reasonableness of local counsel’s rates, which ranged from $175 for associates to $300 for partners. Based on this and other evidence, which was presented under seal, the court determined that local counsel’s rates were reasonable for insurance coverage litigation in South Carolina.
As for the fees billed by the Washington, D.C., firm, at rates ranging from $445 to $581, the insured argued the firm was retained as coverage counsel since 2004 in various states, including South Carolina, and provided a 10% discount off the rates various declarants stated were comparable for similarly experienced insurance recovery attorneys. The insurer argued that the rates, charged by the Washington, D.C., firm were inconsistent with South Carolina rates and that the work could have been handled by local counsel.
While the court recognized that it might be reasonable to use out-of-state counsel, the court found that the issues in the coverage litigation were not so unusual as to require out-of-state counsel in this case. The court ruled that services of "like quality" were available in South Carolina and, thus, rejected the insured’s arguments regarding the need to use the Washington, D.C., firm. Under the circumstances, the hourly rates for time billed by the Washington, D.C., firm were reduced to the rates that were billed by local counsel. In addition, the court reduced the loadstar fee amount by 25% to account for amounts the insured received from other insurers. As a result of the court’s findings, the insured’s $1.1 million attorney fee claim was reduced to $410,000.
When dealing with the award of attorney fees incurred in the underlying or coverage action, a court will review a number of factors to determine the insured’s recovery. Insureds sometimes advocate for the use of national or preferred counsel. However, those rates might be deemed unreasonable, and subject to reduction, depending on the locale and type of case.
Consequential Damages Arising Out of the Insured’s Operations Are Barred by Exclusion j.(5) Under Washington Law
Abraham Sandoval, Associate in the Chicago Office
In Western Nat’l Assurance Co. v. Shelcon Constr. Grp., LLC, 2014 Wash. App. LEXIS 1094 (Wash. Ct. App. May 5, 2014), the Court of Appeals of Washington found that the exclusion j.(5) precludes coverage for consequential damages arising out of the insured’s operations.
Developer A-2 Venture, LLC (A-2) retained Shelcon Construction Group, LLC (Shelcon) to perform work on a project known as "Beaver Meadows," including excavation and structural fill. Shelcon allegedly removed settlement markers at the site and failed to properly prepare the site, including by failing to verify soil settlement and compaction. Shelcon’s failure allegedly resulted in the rescission of the purchase and sale agreement and a reduction in value of the property from $8,550,000 to $6,412,500. Thus, A-2 filed a breach of contract lawsuit against Shelcon for defective performance (i.e., failure to properly prepare the site).
Shelcon tendered the lawsuit to its insurer, Western National Assurance Company (Western) under a CGL policy. Western informed Shelcon that because the allegations in the complaint alleged "economic loss" and not "property damage," as defined by the CGL policy, it did not have a duty to defend. Moreover, even if the allegations did allege property damage, Western asserted that coverage was barred by exclusions j. and m. The underlying court ultimately found that Shelcon did not breach its contract with A-2.
Western filed a declaratory judgment action seeking a determination that it did not owe Shelcon a duty to defend in connection with A-2’s breach of contract lawsuit. On cross-motions for summary judgment, the court granted Western’s motion, finding no duty to defend, and Shelcon appealed.
The appellate court affirmed the trial court’s ruling, finding that even if the underlying allegations triggered a duty to defend, the defective work and operations exclusion j.(5) precluded coverage. Specifically, exclusion j.(5) bars coverage for property damage to
"[t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations." According to the court, the rationale for such an exclusion, one of the primary business risk exclusions, is that faulty workmanship is a business risk to be borne by the insured. Nevertheless, Shelcon argued that the exclusion applies only to its own work, not the consequential property damage caused by its work. The court disagreed, noting that under settled Washington law, when interpreting that "particular part" in exclusion j.(5), the exclusion is not limited to the component out of which the damage arose. Accordingly, the court held that because the underlying lawsuit alleged that the consequential damages arose out of Shelcon’s removal of the settlement markers or its operations on the site, the unambiguous language of exclusion j.(5) bars coverage.
Many jurisdictions follow the theory that faulty workmanship is not covered under a CGL policy. Exclusion j.(5) goes one step further, barring coverage for consequential damages arising from the insured’s operations under Washington law.
Illinois Appellate Court Rejects Insurer’s Contribution Action in Targeted Tender Case
Michael DiSantis, Associate in the Chicago Office
In AMCO Ins. Co. v. Cincinnati Ins. Co., 2014 IL App (1st) 122856 (May 5, 2014), the plaintiff sued three companies, Hartz, Cimarron, and Van Der Laan, to recover for injuries sustained while working on a construction site. Over the course of the litigation, Hartz tendered its defense to Cimarron’s insurer, AMCO, and Van Der Laan’s insurer, Erie, seeking coverage as an additional insured under both policies. AMCO and Erie defended pursuant to a reservation of rights.
At mediation, AMCO suggested that it, Erie, and Hartz’s own insurer, Cincinnati, each contribute $500,000 to settle the matter for $1.5 million. Cincinnati refused on the grounds that Hartz "targeted" AMCO and Erie and, therefore, those insurers must exhaust their limits before Cincinnati could become liable. AMCO ultimately paid $1,450,000 to settle the claim on behalf of Hartz and Cimarron.
AMCO then filed a declaratory judgment against Erie and Cincinnati alleging counts for subrogation, contribution, and "other insurance." Cincinnati filed a motion to dismiss, which the trial court granted, and the appellate court affirmed.
The court explained that the "targeted tender" doctrine allows an insured covered under multiple insurance policies to select which insurer must respond to a particular claim. It also gives the insured the right to "deactivate" a tender to an insurer and require a different insurer to respond. A "targeted" insurer may not seek equitable contribution from other insurers that were not designated by the insured.
The court also noted that the "targeted tender" doctrine has been criticized and limited by Illinois courts in recent years. For instance, an insurer may not "attempt to target only its excess policies before exhausting its primary policies." Moreover, the doctrine also does not apply where the policies that must respond provide consecutive, rather than concurrent, coverage.
AMCO argued that it was entitled to deactivate Hartz’s tender to AMCO based on the provision of the settlement assigning Hartz’s rights to AMCO, which it contended included the right to select and deselect insurers. Therefore, AMCO argued that it was entitled to seek contribution from Cincinnati. The court disagreed.
The court held that the "outcome of this case is determined by one main issue: whether the targeted tender doctrine allows insurers to deselect themselves as targeted insurers following the settlement of the insured’s underlying lawsuit. We find that the targeted tender doctrine cannot be interpreted in such a way."
Under AMCO’s interpretation of the doctrine, a targeted insurer would be permitted to enter into a settlement that includes an assignment of the insured’s rights and then seek contribution from non-targeted insurers. The court found that this result would undermine the doctrine’s purpose and was inconsistent with the narrow interpretation of the doctrine by Illinois courts.
The Illinois Appellate Court recognized yet another limitation of the "targeted tender" doctrine, which allows an insured to select which of multiple insurers must respond to a claim. In AMCO, the court held a targeted insurer may not obtain the insured’s right to make or deactivate a targeted tender in an assignment of rights and then seek contribution from non-targeted insurers.
Competing "Other Insurance" Clauses Make Priority of Coverage Difficult to Determine
James R. Murray, Partner in the Chicago Office
n Certain Underwriters at Lloyd’s London v. Central Mutual Insurance Company, 2014 IL App (1st) 133145 (May 23, 2014), the Illinois Appellate Court, First District, held that a policy extending additional insured coverage that contained an excess other insurance clause stating that the policy provided excess coverage unless a written contract required that it provide primary coverage, was excess to the additional insured’s own policy that stated it was excess to any other available primary coverage.
The contract between the general contractor, Golden Nail Builders, Inc. (Golden Nail), and the subcontractor, Erik Electric Service, Inc. (Erik Electric), required the subcontractor to procure additional insured coverage for the general contractor under the subcontractor’s CGL policy. The subcontract did not, however, specify whether the additional insured coverage was to provide primary or excess coverage to Golden Nail’s own policy. Erik Electric’s employee was injured on the job site and filed suit against Golden Nail. Golden Nail tendered the suit to its own carrier, Lloyd’s. Lloyd’s accepted the defense pursuant to a reservation of rights. Thereafter, the attorney Lloyd’s hired to defend the suit tendered Golden Nail’s defense to Erik Electric’s carrier, Central Mutual, and sought primary coverage under the Central Mutual policy as an additional insured. Central Mutual declined coverage for Golden Nail and asked Golden Nail’s counsel why he felt that Golden Nail qualified as an additional insured. Golden Nail’s counsel did not respond, so Central Mutual wrote to counsel and advised that it interpreted the silence as Golden Nail’s withdrawal of the tender. Eventually, Golden Nail’s counsel retendered the suit to Central Mutual and explained why Golden Nail thought there was additional insured coverage.
Lloyd’s then filed a declaratory judgment action. On cross-motions for summary judgment, the trial court ruled that Central Mutual owed additional insured coverage, but the Central Mutual coverage was excess to the Lloyd’s primary coverage. Lloyd’s filed an appeal contending that the other insurance clauses in the Central Mutual and Lloyd’s polices were irreconcilable and had to be construed as cancelling each other with the result that the policies provided co-primary coverage to Golden Nail. The appellate court affirmed the trial court’s decision.
The Illinois Appellate Court examined the other insurance clauses contained in each of the competing policies. The other insurance clause of the Lloyd’s policy provided in relevant part:
4. Other Insurance
a. Primary Insurance
* * *
(2) Any other primary insurance available to you covering liability for damages arising out of the …operations…, for which you have been added as an additional insured by attachment of an endorsement.
The other insurance clause contained in the additional insured endorsement to the Central Mutual Policy provided in relevant part:
Any coverage provided hereunder shall be excess over any other valid and collectible insurance available to the additional insured … unless a contract specifically requires that this insurance be either primary or primary and noncontributing…
The appellate court summarized the Lloyd’s policy as providing primary coverage unless there is other primary coverage, in which case it becomes excess. The court construed the Central Mutual policy as providing excess coverage to the additional insured unless a contract requires that the additional insured coverage be on a primary basis. Since the subcontract did not require the additional insured coverage to be provided on a primary basis, the court ruled that the Central Mutual policy provided excess coverage only. Therefore, the court determined that for purposes of the Lloyd’s other insurance clause, there was not "any other primary insurance available to Golden Nail."
Lloyd’s argued that the appellate court was bound to follow the court’s 2007 decision in Ohio Casualty Insurance Co. v. Oak Builders, Inc., 869 N.E.2d 992 (Ill. App. 1st Dist. 2007), in which the court construed the exact same competing other insurance clauses at issue but concluded that the two clauses were irreconcilable, and therefore, each policy provided primary coverage. The Lloyd’s v. Central Mutual court, however, disagreed with the Oak Builders decision and stated it was unclear why that court presumed that the general contractor’s policy provided primary coverage.
Competing other insurance clauses sometimes make it difficult to reconcile and determine priority of coverage. This is demonstrated by the Illinois Appellate Court disagreeing with its own prior decision interpreting the same two competing other insurance clauses. Central Mutual was wise to file a declaratory judgment action because if it had guessed wrong, it might have been subject to Illinois’ unique estoppel doctrine.
Not So Fast: Co-Insurer Ordered to Equitably Contribute to Underlying Settlement
Christopher H. Westrick, Partner in the Newark Office
The Nebraska Supreme Court in American Family Mutual Ins. Co. v. Regent Insurance Co., 288 Neb. 25; 2014 Neb. LEXIS 71 (May 2, 2014), ordered the insurer of a property manager to pay its share of a settlement reached in connection with a personal injury sustained at the managed property, splitting the payment with the property owner’s insurer.
The underlying claim involved an intoxicated partygoer who launched himself over the railing of a third-floor apartment balcony and ended up a quadriplegic. He sued the complex owner, Beacon Hill, and its management company, NP Dodge, under a joint and several liability theory for negligence associated with the insufficient height of the balcony railing.
Beacon Hill held primary and excess coverage with American Family Mutual Insurance Company (American Family), and NP Dodge held primary and excess policies with Regent Insurance Company (Regent). Both Beacon Hill and NP Dodge were additional insureds on the other’s policies.
American Family hired counsel to defend both Beacon Hill and NP Dodge, and subsequently requested that Regent share in the costs of defense on the basis that each company’s primary policies were co-primary for purposes of the underlying claim. Regent rejected the request for contribution, citing a hold harmless agreement that was included in an amendment to the property management agreement. In that agreement, Beacon Hill agreed to defend and hold NP Dodge harmless against third-party claims arising out of the occupancy of the property. Regent maintained that its primary and excess policies were excess over the American Family primary and excess policies, and based on policy limits, assumed the claim would never reach its layers of coverage.
Although Regent retained counsel to monitor the litigation, the case proceeded to mediation with Regent not participating. At the mediation, American Family reached a settlement with the plaintiff for a total of $3.5 million (including a structure). Regent agreed the amount was reasonable but it declined to contribute to the payment.
American Family subsequently sued Regent for equitable contribution, arguing that both primary policies (each with $1 million limits) shared responsibility for the first $2 million of the settlement, and that both American Family ($5 million) and Regent ($4 million) shared responsibility pro rata for the amount of the settlement above the first $2 million.
Both parties moved for summary judgment, American Family arguing that both carriers’ policies shared the same risk and the same loss, which overrode the language of the management agreement that Regent relied upon. The court ruled in favor of American Family, and Regent took an appeal.
On appeal, the Court agreed wholly with the lower court decision, not only as to interpretation of coverage but as to the method of allocation. As to the latter, the court stated: "We find that the specific allocation . . . is a matter of equity, and in our de novo review of that determination, we agree with the District Court’s division based on the other insurance provisions of the respective policies." The Court found both primary policies as co-primary, and both excess policies as co-excess. After examining the other insurance clauses for all involved policies, the Court ruled that Regent was properly ordered to pay its primary limits and four-fifths (based on $4 million of $9 million total coverage) of the amount of the settlement in the excess layer.
The Court carefully reviewed the policies and held that Regent’s policy was not a true excess policy. Insurers face these issues daily and this decision provides a roadmap to Nebraska’s analysis and provides citations to a number of cases from other jurisdictions addressing the issue as well.
Tressler Win: Ninth Circuit Affirms That Prior Publication Exclusion Barred a Defense Obligation to Skateboard Manufacturer
Linda Bondi Morrison, Partner in the Orange County Office
Ryan Luther, Associate in the Orange County Office
In Street Surfing, LLC v. Great American E&S Insurance Company, 2014 U.S. App. LEXIS 10737, Case No. 12-55351 (9th Cir. June 10, 2014), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s decision on summary judgment that Great American had no obligation to defend its insured, Street Surfing, in an underlying action for trademark infringement.
Rhyn Noll, the owner of the registered trademark "Streetsurfer," sued Street Surfing in June 2008, asserting causes of action for trademark infringement, unfair competition and unfair trade practices under federal and California law ("Noll Action"). The complaint alleged that Street Surfing’s sale, distribution and advertisement of its two-wheeled, inline skateboard called "the Wave," which displayed the name "Street Surfing," caused a likelihood of confusion as to Mr. Noll’s "Streetsurfer" trademark, which Mr. Noll used to sell skateboards and skateboard accessories.
Great American issued two consecutive liability policies to Street Surfing, the first incepting in August 2005. In its application for the first Great American policy, Street Surfing disclosed that it had been selling the Wave to retail stores since about December 2004, and had already generated approximately $600,000 in sales. The application also listed Street Surfing’s website address, www.streetsurfing.com, and confirmed that all of the Wave skateboards displayed Street Surfing’s logo.
Great American conceded for purposes of summary judgment only that the Noll Action potentially alleged the "personal and advertising injury" offense of "[t]he use of another’s advertising idea in [Street Surfing’s] advertisement." However, Great American denied, and the Court rejected, Street Surfing’s contention that the Noll Action also alleged the "personal and advertising injury" offense of "infringing upon another’s … slogan in [Street Surfing’s] ‘advertisement.’" The Court concluded that there were no allegations or evidence that Mr. Noll had used his "Streetsurfer" trademark as a "slogan," defined as "’a brief attention-getting phrase used in advertising or promotion’ or ‘[a] phrase used repeatedly , as in promotion.’" The Court also confirmed that Street Surfing’s own purported use of its name as a "slogan," was irrelevant to the application of the offense.
The Court affirmed that the prior publication exclusion in the policies, which barred coverage for "’personal and advertising injury’ arising out of oral or written publication of material whose first publication took place before the beginning of the policy period," applied. Specifically, it concluded that Street Surfing’s display of its logo on the Wave constituted the publication of allegedly infringing material in Street Surfing’s "advertisement" prior to the inception of the policies. The Court affirmed that Great American had properly relied upon Street Surfing’s application for coverage to deny a defense.
Significantly, the Court rejected Street Surfing’s argument that its subsequent infringing activity on new products during the policy periods were "fresh wrongs" which rendered the exclusion inapplicable. As explained by the Court, "if Street Surfing’s post-coverage publications were wrongful, that would be for the same reason its pre-coverage advertisement was allegedly wrongful: they used Noll’s advertising idea in an advertisement."
In this case, Street Surfing argued that the allegedly infringing conduct in which it had engaged after the Great American policies incepted was sufficiently different from its pre-policy conduct so as to make the prior publication exclusion inapplicable. It improperly focused on the difference in its own conduct to argue the exclusion did not apply. The Ninth Circuit was not fooled. It rejected Street Surfing’s argument that its later conduct constituted "fresh wrongs" and properly placed the focus on whether Street Surfing’s post-policy conduct infringed upon Noll’s same advertising idea, "Streetsurfer." It summed up the case as involving "a company that began a wrongful course of conduct, obtained insurance coverage, continued its course of conduct, then sought a defense from its insurer when the injured party sued."
It is important to note the significance the underwriting materials played in this decision. The district court and Ninth Circuit were allowed to consider the impact of this extrinsic evidence on the duty to defend under California law. Not all jurisdictions, however, will allow an insurer to consider information extraneous to the policy and the complaint to defeat a duty to defend.
July 16, 2014: Insurance 101: What You Always Wanted to Know About Policies
Co-Presented by Chicago Partner Shaun McParland Baldwin | Webcast
Chicago Partner, Shaun McParland Baldwin, will co-present, “Insurance 101: What You Always Wanted to Know About Policies” presented by DRI’s Insurance Law Committee. Part two of a three-part series, this webcast takes place on Wednesday, July 16, 2014.
Dec. 5, 2014: (I Can’t Get No) Satisfaction… of My Self-Insured Retention
Presented by Chicago Partner Devin C. Maddox | New York Marriott Marquis, New York, NY
Chicago Partner, Devin C. Maddox, will co-present “(I Can’t Get No) Satisfaction … of My Self-Insured Retention” at the Insurance Coverage and Practice Symposium at the New York Marriott Marquis, on December 4-5, 2014.
June 2014: “Charge” Ahead: What the EEOC’s Recent Enforcement and Litigation Data Statistics Really Mean for EPL Insurers
Tressler Partner, Devin C. Maddox, and Senior Counsel, Michelle L. Hall, co-authored “’Charge’ Ahead: What the EEOC’s Recent Enforcement and Litigation Data Statistics Really Mean for EPL Insurers” which was a featured article in the June edition of the Insurance Coverage Law Report.
May 2014: “The Reinsurance ‘Cut-Through’ Provision – No Privity, No Problem,” by Associate, Michael A. Conlon
HarrisMartin’s Reinsurance Publication published, “The Reinsurance ‘Cut-Through’ Provision – No Privity, No Problem,” by Chicago Associate, Michael A. Conlon on May 20, 2014.
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