I thought I would pass on two interesting insurance coverage stories, with some thoughts on each. The first is this one here, about the New Jersey Supreme Court finding that an insurer that loses an insurance coverage action can be ordered to pay attorney’s fees incurred by the insured in a separate but related coverage action in another jurisdiction. A prevailing insured’s right to recover fees incurred in an insurance coverage dispute with its insurer is a slow moving but inexorable carve out from the American Rule, which holds that parties are responsible for their own attorney’s fees, and somewhere down the road we are likely to find it has become the overwhelming majority rule in this country. The expansive reading of that obligation imposed in this New Jersey decision is reflective of that trend.
The second is this one, about a finding that an insurer had no duty to defend its insured against a class action seeking only economic losses based on the risk of bodily injury, rather than seeking recovery for bodily injury itself actually suffered by the class plaintiffs. The court found that the insurer had no duty to defend because coverage was limited to claims for bodily injury, and the action did not actually seek to recover for identifiable physical injury. This case caught my eye because it reflects a narrow, highly technical reading of the policy language and of the coverage it granted, pursuant to which the court refused to expand the coverage to include a defense obligation simply because the case pled against the insured had some relationship to possible allegations of bodily injury; the duty to defend is often interpreted by courts to be so broad that often courts, and sometimes even insurers, view the duty as triggered if the claim even comes close to fitting the terms of coverage. You can call this kind of a horseshoes approach to determining the duty to defend, as in close is good enough to do it. The court here did not buy it, and in that it is a moral victory for those of us who understand insurance policies as contracts whose terms should be honored and applied as written.