Insurance Coverage Update May 2013

NEW YORK                                                                                                 May 2013 Occurrence - Number of Occurrences/Allocation Priest's Multiple Acts of Sexual Molestation Constitute Multiple Occurrences; Settlement of Resulting Liabilities Subject to Pro Rata Allocation Roman Catholic Diocese of Brooklyn v National Union Fire Ins. Co. of Pittsburgh, PA., 2013 N.Y. LEXIS 1186 (N.Y. May 7, 2013) The New York Court of Appeals considered for "the first time" the meaning of an "occurrence" in the context of numerous incidents of sexual abuse of a minor by a priest spanning several years and policy periods. Newly confirmed Court of Appeals Judge Jenny Rivera issued the Court's majority opinion. Applying New York's "unfortunate events" test to calculate the number of occurrences, the Court concluded that multiple acts of sexual abuse of a minor by a priest gave rise to multiple occurrences, and that responsibility to reimburse the resulting settlement sum must be allocated among all implicated policies on the risk on a pro rata basis. Read the full summary... Fee-Shifting - Duty to Defend New York Federal District Judge Requires Insurer to Reimburse Attorney's Fees Expended by its Insured in Obtaining Ruling that Insurer Owed Duty to Defend Danaher Corp. v. Travelers Indem. Co., 2013 U.S. Dist. LEXIS 49692 (S.D.N.Y. Apr. 5, 2013) Federal District Judge Paul Detken of the Southern District of New York upheld the Magistrate's recommendation that an insurer who brought a third-party complaint against its insured in a coverage action must reimburse its insured's attorney fees incurred in procuring a ruling that the insurer had a duty to defend it in connection with underlying asbestos and silica claims. Read the full summary... NEW JERSEY Professional Liability Coverage - Interrelated Wrongful Acts No Coverage for Sexual Harassment Suit Due to Interrelated "Substantial Overlap" with Prior Civil Rights Complaint Regal-Pinnacle Integrations Indus. v. Phila. Indem. Ins. Co., 2013 U.S. Dist. LEXIS 56941 (D.N.J. Apr. 22, 2013) The District of New Jersey ruled that an administrative Division of Civil Rights (DCR) complaint alleging gender discrimination filed before the policy period was sufficiently "interrelated" with a subsequent lawsuit containing similar allegations even though the later lawsuit added claims of sexual harassment. Notwithstanding, the court indicated that the insurer may have waived its coverage defense by verbally agreeing to fund a settlement of the underlying lawsuit. Read the full summary... Compulsory Insurance Law - Public Entity Exception Public Entity Exception to Compulsory Insurance Law Applies Even Where Party Suing Public Entity Has No Recourse to Other Insurance Robinson v. Zorn, 2013 N.J. Super. LEXIS 56 (App. Div. Apr. 17, 2013) The New Jersey Appellate Division refused to deviate from the plain language of the Compulsory Insurance Law as requested by a claimant left without recourse to insurance coverage to fund his judgment in connection with a traffic accident involving a New Jersey Transit bus. Read the full summary...

This newsletter contains summaries of New York and New Jersey insurance coverage decisions entered during the previous month. If you see a topic that interests you, click the link to read more and obtain a full copy of the case. For further information, please contact the Newsletter Editors, Jonathan McHenry, Neil Mody and William P. Kraussat(973) 535-0500 or email us by clicking here. The cases annexed to this newsletter have been reproduced by Connell Foley LLP with the permission of LexisNexis. Copyright 2013, LexisNexis, a division of Reed Elsevier Inc. No copyright is claimed as to any part of the original work prepared by a government officer or employee as part of that person's official duties. ©2013 Connell Foley. The information contained in this electronic message and any attached document(s) is intended for the personal use of designated recipients. This document is for informational purposes only, and is a means of disseminating general information about judicial insurance coverage law developments. It is not to be interpreted as legal advice, which must always be tailored to individual needs and particular circumstances.  Should you wish to unsubscribe from this list, and remove yourself from future Connell Foley mailings, please reply to contact@connellfoley.com, contact@connellfoley.com, with UNSUBSCRIBE  in the subject line.