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Vol.10 - Issue 4

June 17, 2021

Is “All Such Other Relief The Court Deems Just” A Demand For Damages?
You’ve probably had this situation. You’ve read a complaint and it does not seek damages.  It seeks injunctive relief or declaratory relief or both.  No matter how many times you read the complaint, the plaintiff is just not seeking cash.  Thus, no defense is owed under a liability policy that requires a claim for “damages” as part of the insuring agreement.  But then you get to the end, and read the wherefore clause, and there it is: a demand for “all such other relief the court deems just.”  Is that a demand for “damages?,” perhaps you are now wondering.  All means all, which can include anything, right?  But a Pennsylvania federal court – like other courts facing this issue -- said no: “Weisberg argues that the claim nonetheless seeks damages because it includes a request for ‘all such other relief the Court deems just.’ We do not agree that this boilerplate language broadened the equity action into one for damages.”  American Guarantee and Liability Ins. Co. v. Law Offices of Richard Weisberg, No. 19-5055 (E.D. Pa. Mar. 9, 2021).     

Good Pollution Exclusion Reminder
Sometimes a substance is clearly a pollutant and comes within the terms of a pollution exclusion (including taking into account the state’s law on the scope of the exclusion).  Yet, an argument will still be made that the pollution exclusion does not apply, on the basis that the “movement” requirement has not been meet.  In other words, so the argument goes, the “bodily injury” or “property damage” was not caused by the discharge, dispersal, release or escape of the pollutant, as specified by the language of the exclusion.  Policyholders have succeeded in avoiding the application of the exclusion on this basis. 

This was attempted in Capitol Specialty Ins. Corp. v. West View Apartments, No. 20-22476 (S.D. Fla. April 15, 2021) where the policyholder argued that liquid acid being “poured” did not qualify as it being discharged or released.  But the Florida federal court did not agree: “According to the underlying state court complaint, West View’s employees poured acid through the wrong vent, which unfortunately caused serious injuries to Crespo and Lopez. These allegations are essentially that someone discharged or released liquid acid, which caused bodily injury. Accordingly, the Court finds that the pollution exclusion applies, and Capitol has no duty to defend West View in the state court action.”

Supreme Court: Insurer Can Sue Its Retained Defense Counsel For Malpractice
In a decision that I’ve been looking forward to – having addressed the lower court decision in CO – the Florida Supreme Court held that an insurer can maintain a malpractice action, against defense counsel that it retains to represent an insured, where there was a duty to defend.  Quashing the intermediate appeals court’s decision, the Florida high court, in Arch Ins. Co. v. Kubicki Draper, LLP, No. SC19-673 (Fla. June 3, 2021), held that, while the insurer was not in privity with the defense counsel (the insured was, as the client), the insurer could pursue a claim against the lawyer using a subrogation angle: “[C]onsistent with established principles of subrogation, because the insured is in privity with the law firm, contractual subrogation allows the insurer to step into the shoes of the insured. Accordingly, contrary to the opinion's conclusion below, Arch would have standing to pursue a legal malpractice claim against Kubicki.”

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