NOVEMBER 2013 BAD FAITH CASES: CLAIMS-MADE POLICY EXCLUDES COVERAGE FOR FORESEEABLE LITIGATION, INSURER PREVAILS ON BREACH OF CONTRACT AND BAD FAITH CLAIMS (Philadelphia Federal)

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The insurer refused to provide plaintiffs, an attorney and his law firm, with a defense in an underlying malpractice suit alleging plaintiffs failed to file suit within the applicable statute of limitations. The insurer provided plaintiffs a professional liability claims-made policy, which excluded coverage for all claims which any insured “knew [of] or could have foreseen” as of the effective date of the policy.  Plaintiffs provided the insurer with notice of the underlying malpractice suit during the policy period; however, the insurer denied coverage asserting plaintiffs were aware of the possibility of a claim as early as two years prior to the effective date of the policy when the underlying plaintiff pursued disciplinary action against plaintiff.

Upon the claim denial, plaintiffs brought suit alleging breach of contract and bad faith, and also sought a declaratory judgment requiring defendant to defend and indemnify plaintiffs in the underlying suit. Plaintiffs then filed a motion for judgment on the pleadings, and defendants filed a cross-motion for the same.

The court found plaintiffs could have foreseen the suit, excluding coverage for the claim. Therefore, defendant’s cross-motion was granted and the claims were dismissed.

Date of Decision: September 27, 2013

Fishman v. Hartford, Civil Action No. 12-3779, 2013 U.S. Dist. LEXIS 140286 (E.D. Pa. Sept. 27, 2013) (Surrick, J.).

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