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Third Circuit: Excess Insurer Need Not Prove Prejudice in Order to Enforce a Claims-Made and Reported Requirement
In a 2-1 opinion, the Third Circuit recently affirmed summary judgment in favor of an excess medical malpractice insurer in a case involving both policy construction and evidentiary issues. In Lexington Insurance Company v. Western Pennsylvania Hospital, et al., 2005 WL 2174003 (3d Cir. 9/9/05), West Penn Hospital had three layers of medical malpractice coverage. The first layer was a primary policy issued by PHICO. The PHICO policy provided both general liability, on an occurrence basis, and medical malpractice coverage on a claims-made and reported basis. The next layer was $1 million worth of excess coverage provided by the Pennsylvania Medical Professional Liability Catastrophe Fund (the “CAT Fund”). Lexington issued an excess policy over those first two layers. The CAT Fund coverage was also claims-made and reported.
The Lexington policy had a pre-printed umbrella form that was occurrence-based for general liability, and had two relevant endorsements. The first, Endorsement 007, provided follow-form claims-made medical malpractice coverage. The follow-form language was as follows:
Insofar as coverage is available to the Insured in the underlying insurance set forth in the Schedule of Underlying Insurance, this policy applies to liability arising out of medical incidents. All of the terms and conditions of said underlying insurance shall apply to this insuring agreement except as otherwise expressly stated herein.
The underlying insurance identified in the Schedule of Underlying Insurance was the PHICO policy.
Endorsement 001 dealt with a situation unique to Pennsylvania medical malpractice coverage, ie, that the Pennsylvania CAT Fund statute required the CAT Fund to become primary insurance for any claim made more than 4 years after the medical incident. These claims, called 605 claims, were not covered at all by primary insurance no matter when the claim was reported. The specific language of Endorsement 001 provided:
In the event underlying insurance shall not be applicable to any claim for the reason that the [CAT] Fund shall assume or be required to assume primary responsibility for payment … , coverage under this policy as to such claim shall apply as excess immediately over the limit of liability of the [CAT] Fund.
The Liebs filed the underlying malpractice action on May 25, 2001, alleging that malpractice had occurred in 1990 when their daughter was injured because of delay in performing a caesarean section. West Penn timely submitted a notice of claim to PHICO, which referred the matter to the CAT Fund as a 605 claim. The Lexington policy was in effect on the date that the Liebs' claim was served on West Penn and during the policy period when notice was given to PHICO and the CAT Fund. Lexington claimed that West Penn did not give notice of the Liebs' claim until Feb. 12, 2003.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?