Health and insurance law developments, arugula and roasted peppers with balsamic vineger glaze and pine nuts

Health Insurance: ACLU SUES TO BLOCK NEW KANSAS ABORTION INSURANCE LAW, ACLU v. Praeger, 21 No. 46 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage August 26, 2011

A Kansas statute that bars health insurers from covering abortions in their comprehensive plans violates the U.S. Constitution's 14th Amendment, the American Civil Liberties Union says in a federal court lawsuit. The ACLU of Kansas & Western Missouri is suing Kansas Insurance Commissioner Sandy Praeger to have the law overturned. The complaint alleges violations of the Constitution's due process and equal protection clauses."

Notice-Prejudice Rule: NEVADA SUPREME COURT FORMALLY ADOPTS STATE'S NOTICE-PREJUDICE RULE, Las Vegas Metro. Police Dep't v. Coregis Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage August 26, 2011

The Nevada Supreme Court has ruled that an insurer must show prejudice if it denies coverage because it received late notice of the claim. The high court's advisory opinion reversed a federal judge's decision to grant summary judgment to Coregis Insurance Co. in a lawsuit filed by the Las Vegas Metropolitan Police Department over excess coverage for a civil rights action.The judge had found that the insurer owed no coverage because the Police Department waited 10 years before notifying.

Fifth Amendment: INSURER'S SUIT AGAINST FRUIT COMPANY NOT RIPE FOR ACTION, Allied World Nat'l Assurance Co. v. SK PM Corp., 21 No. 46 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage August 26, 2011

An insurer seeking a rescission or reformation of its policy because the policyholder food producer allegedly falsified financial documents during coverage negotiations must wait until after a pending criminal trial involving similar allegations, a California federal judge has ruled. Allied World National Assurance Co. asked the U.S. District Judge Oliver W. Wanger of the Eastern District of California to rescind or reform policies it issued in 2009 to SK PM Group.

Advertising Injury: N.J. APPEALS COURT SAYS JUNK FAXES MAY BE COVERED, Penn Nat'l Ins. Co. v. Group C Commc'ns, 21 No. 46 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage August 26, 2011

An insurer's policies may cover unsolicited faxes that a business media company sent to advertise a trade show it hosted in Chicago, a New Jersey appellate panel has ruled. A suit over whether Penn National Insurance Co.'s primary or umbrella policies covered policyholder Group C Communications Co.'s alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. 227, raised unresolved fact questions, the Superior Court's Appellate Division found.

Advertising Injury: INSURER MUST LEAP TO DEFENSE OF FROG TAPE MAKER, Amco Ins. Co. v. Inspired Techs., 21 No. 46 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage August 26, 2011

An insurer must defend the manufacturer of Frog Tape in connection with a lawsuit accusing the manufacturer of using misleading advertisements in violation of the Lanham Act, the 8th U.S. Circuit Court of Appeals has ruled. The appeals court said the insurer failed to demonstrate that a "knowledge of falsity" exclusion precluded coverage of 3M Co.'s unfair-competition and false advertising claims because complaint states at least one arguably covered claim.

Coverage Dispute: FLOWER SHOPS DAMAGED BY HURRICANE IKE CAN PURSUE BAD-FAITH CLAIMS, Wholesale Flowers v. Union Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage August 26, 2011

The owners of three Houston flower shops can move forward with claims that their insurer acted in bad faith when it failed to pay for covered losses caused by Hurricane Ike, a Texas federal judge has ruled. U.S. District Judge Keith P. Ellison of the Southern District of Texas rejected the insurer's argument that the owners failed to plead sufficient facts to support their claims for bad faith, breach of contract and fraud.

Subrogation: ARMY CORPS SHOULD NOT HAVE PAID CONTRACTOR $700,000, INSURER SAYS, Hartford Fire Ins. Co. v. United States, 21 No. 46 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage August 26, 2011

An insurance company has sued the U.S. Army Corps of Engineers, alleging the agency wrongfully paid an insured contractor $700,000 to settle a dispute because the company was likely to default on a different government job. Hartford Fire Insurance Co.'s suit in the U.S. Court of Federal Claims says the Army Corps wrongfully settled the case with nonparty Overstreet Electric Co. The insurer says it was entitled to receive the settlement payment since it was going to cover.

Investigation of Claim: INSURED'S FAILURE TO TAKE EUO SHIELDS INSURER FROM BAD-FAITH CLAIM, Chan v. Empire Fire & Marine Ins., 21 No. 46 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage August 26, 2011

A California federal judge has tossed a bad-faith lawsuit against an insurance carrier that refused to compensate a policyholder for $90,000 in personal property that he claimed was stolen from his home. In granting summary judgment to the insurer, U.S. District Judge Edward J. Davila of the Northern District of California noted the policyholder failed to take an examination under oath or to provide the carrier with various financial statements it requested.

Coverage Dispute: FEDERAL JUDGE REJECTS COVERAGE FOR FARMER'S FATAL HEATSTROKE, Esparza v. Burlington Ins. Co., 21 No. 46 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage August 26, 2011

An automobile exclusion in a California farm contractor's general liability policy precludes coverage in a dispute with the family of a laborer who died of heatstroke while loading grapes onto a truck, a federal judge has ruled. U.S. District Judge Lawrence J. O'Neill of the Eastern District of California said farm labor contractor Esparza Enterprises Inc. failed to demonstrate that its commercial general liability policy covered inadequate safety precautions for heat.

State Farm Mut. Auto. Ins. Co. v. Menendez ,(Fla.)

Insurance - Household exclusion barred bodily injury claims of insured's daughter who resided in permissive driver insured's household.

The household exclusion provision in an automobile insurance policy, barring coverage for "any bodily injuryto" "any insured or any member of an insured's family residing in the insured's household," eliminated the bodily injury claims of the insured automobile owner's daughter and son-in-law who were residing in the household of the owner's granddaughter, as a permissive-driver insured, when they allegedly suffered injuries in a collision while riding as passengers in the owner's automobile while it was driven by the granddaughter. The exclusion's reference to family members "residing in the insured's household" encompassed family members residing in the household of any insured.

Torts -- Medical malpractice -- (Fla.)     New trial -- Preservation of issue -- Evidence -- Expert -- Trial court erred in granting a new trial on the basis that defense expert's trial testimony materially varied from deposition where plaintiff made no contemporaneous objection to the testimony, failed to timely move for mistrial, and instead cross-examined expert regarding his change in testimony and focused on the change in closing argument -- Testimony did not rise to the level of fundamental error where plaintiff could not claim surprise at expert's opinion given that plaintiff had sought to exclude those opinions on other grounds by way of pretrial motion in limine, any difference between expert's deposition and trial testimony was a matter of degree, and plaintiff was already prepared to address topic of opinion with contrary evidence since the issue was being addressed by other defense experts as well -- Remand to consider other grounds contained in plaintiff's motion not reached by trial court

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