Archive for the 'NJ – Coverage Issues' Category


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This post summarizes two bad faith opinions issued by New Jersey District Judge Hillman in September.


In this first party property damage case, the insurer offered one-ninth of what the insured claim was due.  The insured brought breach of contract, breach of the implied covenant of good faith and fair dealing, and bad faith claims.  The insurer moved to dismiss the latter two claims, and if unsuccessful, moved to sever and stay the bad faith claim.

Breach of implied contractual covenant good faith and fair dealing subsumed in bad faith claim

Judge Hillman first found that the bad faith claim and breach of the implied covenant of good faith and fair dealing claim were redundant.  “[T] requirement to act in ‘good faith’ in processing a claim under an insurance contract is simply the flip-side of the requirement that an insurer may not act in ‘bad faith; in processing that claim. As such, Plaintiff’s claim for the breach of the implied covenant of good faith and fair dealing contained in both of Plaintiff’s counts is redundant of, and subsumed by, Plaintiff’s bad faith claim and must be dismissed as a stand-alone claim, if Plaintiff had intended it to be as such.”

Bad faith claim adequately pleaded

Judge Hillman then found the insured adequately pleaded its bad faith claim.  “[A]n insurance company may be liable to a policyholder for bad faith in the context of paying benefits under a policy. The scope of that duty is not to be equated with simple negligence. In the case of denial of benefits, bad faith is established by showing that no debatable reasons existed for denial of the benefits.”

To meet this standard:

  1. “[A] plaintiff must show the absence of a reasonable basis for denying benefits of the policy.”

  2. “If a plaintiff demonstrates the absence of a reasonable basis, he must then prove that the defendant knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”

  3. In other words, an insurance company does not act in bad faith if a plaintiff’s insurance claim was “reasonably debatable.”

  4. A claim is “reasonably debatable” if a plaintiff cannot establish as a matter of law a right to summary judgment on the underlying breach of contract claim.

The court agreed some of the plaintiff’s complaint made conclusory allegations, but sufficient facts were pleaded to make out a plausible bad faith claim.  These include factual allegations that the insurer:

  • made misrepresentations concerning the lack of documentation for “abatement and appraisal,”

  • failed to indicate what ongoing investigation was being pursued in violation of the New Jersey Unfair Claims Settlement Practices,

  • determined that Plaintiff was improperly claiming damage for a pre-existing loss of 2013 in the absence of any evidence that there was pre-existing damage in the building from a loss in 2013,

  • made false statements concerning the extent of damage to [building] units 403, 407, 300 and 301,

  • threatened [the insured] with prosecution for “concealment, misrepresentation or fraud” when it knew that the only misrepresentation and fraud committed in connection with this claim had been committed by Great American, and

  • did all these things with the intentional purpose to deny its $267,429.73 claim, which is supported by the estimate of an actual building contractor, and not by a company … that provides services as “independent adjusters” for numerous insurance companies including Great American, and instead pay a fraction of that claim.

Motion to Sever and Stay Denied Without Prejudice

The court applied the four factor test for apply Federal Rule of Civil Procedure 21.  These four factors include:

“(1) whether the issues sought to be tried separately are significantly different from one another,

(2) whether the separable issues require the testimony of different witnesses and different documentary proof,

(3) whether the party opposing the severance will be prejudiced if it is granted, and (4) whether the party requesting severance will be prejudiced if it is not granted.”

Judge Hillman observed the tension at issue: “As a general principle it makes sense to hold off discovery on an insurer’s alleged bad faith when such claim is premised on the insured’s success in proving its breach of contract claim. If it is determined that the insurance company did not breach the parties’ contract, then it cannot be found that it acted in bad faith, and, thus, discovery on a claim that may never be considered would tend to be a wasteful expenditure of the parties’ and the Court’s resources. At the same time, however … if an insured is successful on its breach of contract claim and discovery on the insured’s bad faith had been stayed, parties and witnesses may need to be re-deposed and documents re-scanned for relevancy, privilege and other concerns, which would also tend to be wasteful.”

He then observed: “These competing concerns are the reason why the four-factor test is employed to determine whether severance and stay is proper in the particular circumstances of an individual case. In this case, [the insurer] has failed to demonstrate how the general principles of severance and stay of a bad faith claim are specifically applicable here. Unlike [the situation] where the plaintiff had propounded extensive interrogatories relating to the production of voluminous documents not directly related to the plaintiff’s individual dispute, [the insurer] has not indicated that Plaintiff has demanded documents and other information separate from what Plaintiff would demand for its breach of contract claim. Thus, even accepting that the first factor has been met, at this time the Court cannot assess the second factor regarding “whether the separable issues require the testimony of different witnesses and different documentary proof,” and the subsequent third and fourth factors of the Rule 21 test.”

Thus, Judge Hillman denied the request to sever the insured’s bad faith claim and stay discovery on that claim, without prejudice. He added, however, that the insurer could “renew its motion, if appropriate, before the magistrate judge after discovery has commenced.”

Date of Decision:  September 1, 2021

801 Asbury Avenue, LLC v. Great American Insurance Company, U.S. District Court District of New Jersey No. 1:20CV16522NLHAMD, 2021 WL 3910147 (D.N.J. Sept. 1, 2021) (Hillman, J.)


This Covid-19 business loss coverage case follows the logic in the Pennsylvania and New Jersey decisions summarized in yesterday’s (September 27, 2021) posts; and in an earlier August 2021 ruling by Judge Hillman.  Like those decisions, Judge Hillman first finds no coverage due for Covid-19 business closure losses. As to bad faith, he then states:

“Here, Plaintiff’s bad faith claim is based on Defendant’s denial of coverage, but as detailed above, that denial of coverage was proper as a matter of law. Accordingly, a bad faith claim based on these facts would not survive dismissal.”

Judge Hillman cited his own August 2021 Covid-19 decision in  Z Business Prototypes LLC v. Twin City Fire Insurance Co., summarized here, “dismissing with prejudice plaintiff’s bad faith claim based on denial of coverage where the virus exclusion applied and barred coverage….”

Date of Decision: September 21, 2021

ABC Children’s Dentistry, LLC v. The Hartford Insurance Company, U.S. District Court District of New Jersey No. CV 20-10044, 2021 WL 4272767 (D.N.J. Sept. 21, 2021) (Hillman, J.)


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Today’s post addresses two recent cases where New Jersey federal judges held Covid-19 business loss claims barred by insurance policy virus exclusions.

Case 1 (Judge Hillman)

In this Covid-19 business closure case, the insured claimed coverage was due for business interruption, and under the policy’s civil authority coverage provision.  The carrier denied coverage based upon a virus exclusion.  The insured brought breach of contract and bad faith claims, which the insurer successfully moved to dismiss.

First, after an extensive analysis and review of developing case law, the court found the Covid-19 business loss barred by the policy’s virus exclusion.

As to bad faith, the court observed that under New Jersey law, causes of action for bad faith can include a denial of insurance coverage, or conduct that goes beyond coverage denial.  In coverage denial cases, the insured has to prove the lack of a reasonable basis to deny benefits, and a knowing or reckless disregard of the unreasonableness of the carrier’s denial.

Such claims cannot survive if they are fairly debatable; nor can there be a cognizable “bad faith claim for denial of coverage if the insurer was correct as a matter of law in denying coverage.” [Interestingly here, the court cites Third Circuit case law supporting this principle where the courts were addressing Pennsylvania’s bad faith statute, and not New Jersey’s common law insurance bad faith law.  The court also cited this “Pennsylvania” case law on bad faith reaching beyond coverage denial claims.]

New Jersey Federal Judge Hillman dismissed the bad faith claim with prejudice, stating

In the context of a claim for coverage based solely on the Closure Orders where there are no claims that the insured property or nearby property has been physically damaged and access to Plaintiff’s property has not been entirely prohibited, there is nothing to investigate: coverage does not exist on the face of that claim. Therefore, Plaintiff has not shown bad faith in Defendant’s lack of investigation or by denying Plaintiff’s claim. Discovery on this issue would not change that conclusion. As detailed above, the Court has already concluded Defendant was correct as a matter of law in denying Plaintiff coverage. Accordingly, the Court will dismiss with prejudice Plaintiff’s bad faith claim.  …. “Because the Court has found that [the insurer] was not obligated to provide coverage under the terms of the Policy, the bad faith claim similarly fails.”

Judge Hillman looked to Judge Kugler’s 2020 Shore Options opinion, summarized here, to support this conclusion.

Date of Decision:  August 9, 2021

Z Business Prototypes LLC v. Twin City Fire Insurance Company, U.S. District Court District of New Jersey No. CV 20-10075, 2021 WL 3486897 (D.N.J. Aug. 9, 2021) (Hillman, J.)

Case 2 (Chief Judge Wolfson)

After a lengthy analysis, Chief Judge Wolfson ruled that New Jersey’s principles governing insurance policy interpretation required application of a virus exclusion to bar coverage for a group of restauranteurs asserting Covid-19 business loss claims.  She then entered a judgment on the pleadings for the insurer on plaintiffs’ bad faith claim.

We quote the Chief Judge’s bad faith reasoning in full:

In Pickett v. Lloyd’s, 131 N.J. 457, 481 (1993), the New Jersey Supreme Court enumerated two situations under which an insurance company can be held to have acted in bad faith in the context of a first party claim: (1) “denial of benefits” and (2) “processing delay.” The Court reasoned that, like all contracts, an insurance contract contained a covenant of good faith and fair dealing in its performance and enforcement. …

Thus, the Court concluded that the insured should have a remedy when the insurer breaches its fiduciary duty to its insured by acting in bad faith. Id. To prove bad faith, “a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and the defendant’s knowledge or reckless disregard or the lack of a reasonable basis for denying the claim.” “While the knowledge of the lack of a reasonable basis may be inferred and imputed to an insurance company where there is reckless indifference to facts or to proofs submitted by the insured, neither negligence nor mistake is sufficient to show bad faith.” …. Rather, it must be demonstrated that the insurer’s conduct is unreasonable and the insurer knows that the conduct is unreasonable, or that it recklessly disregards the fact that the conduct is unreasonable. ….

In the present matter, Plaintiffs assert a claim that Defendant acted with bad faith when it denied benefits set forth in Plaintiffs’ contract with Defendant. … However, as previously discussed, Plaintiffs’ losses are barred by the Virus Exclusion. Consequently, because no coverage exists for Plaintiffs’ claims, the bad faith claim fails.

Date of Decision:  August 12, 2021

JRJ Hospitality, Inc. v. Twin City Fire Insurance Company, U.S. District Court District of New Jersey No. 320CV13095FLWDEA, 2021 WL 3561356 (D.N.J. Aug. 12, 2021) (Wolfson, J.)

[Yesterday’s post summarized a separate August 9, 2021 New Jersey Federal Court opinion, addressing the same bad faith coverage issues, though outside the Covid-19 context, likewise concluding that if no coverage is due, bad faith is not possible.]


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The carrier sought to void a life insurance policy on the basis of material misrepresentation. The beneficiary brought counterclaims for breach of contract and bad faith, among others.

The court rescinds based on material misrepresentation in the application

The material misrepresentation argument was based on the insured claiming $180,000 in annual income for the family business, when its annual income was actually less than $2,000.

“Under New Jersey law, an insurer may rescind a policy for equitable fraud when false statements were made in the application which ‘materially affected either the acceptance of the risk or the hazard assumed by the insurer.’ N.J.S.A. § 17B:24-3(d). Equitable fraud does not require scienter for objective questions; the only inquiry is whether the misrepresentation is material. A misrepresentation is material if it ‘naturally and reasonably influenced the judgment of the underwriter in making the contract at all, or in estimating the degree or character of the risk, or in fixing the rate of premium.’”

“In reviewing alleged misrepresentations on life insurance applications, courts distinguish between objective and subjective questions.” Objective questions are based on the applicant’s actual knowledge. “If the question is objective, even an innocent misrepresentation warrants rescission.”

“In contrast, subjective questions inquire into the applicant’s state of mind. They are concerned with more ambiguous issues, such as what is the state of the applicant’s health.” (Internal quotation marks omitted). Courts show greater leniency on the subjective question inquiry, and “consider whether the answer accurately reflects the applicant’s state of mind even if otherwise inaccurate.” “Therefore, if a question is subjective, then the insurer must additionally establish the insured knew the answer was false.”

In this case, the question involved annual income, which constitutes an objective question. While the insurer’s agent did ask for an estimate, and the insured could not provide a fixed number, this did provide an excuse for the insured’s material misrepresentation to the carrier’s agent. She could have estimated annual income at $0-2,000, rather than the $200-1000 per day estimate provided to the insurer’s agent.

Thus, the court entered summary judgment rescinding the policy.

No bad faith where coverage position is fairly debatable

The court dismissed the beneficiary’s various counterclaims. As to the bad faith claim, the insured had to prove “the absence of a reasonable basis for denying benefits of the policy and the insurer’s ‘knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.’” A “fairly debatable” claim defeats bad faith allegations. “Here, the Court has already determined the policy was void, which itself establishes the coverage was debatable.” The facts further showed that the insured was not insurable under the carrier’s underwriting guidelines.

Date of Decision: June 3, 2021

Allstate Assurance Company v. Tawil, U.S. District Court District of New Jersey No. CV 18-8843, 2021 WL 2253544 (D.N.J. June 3, 2021) (Arleo, J.)



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This is a New Jersey Covid-19 coverage case.  The insurer rejected business loss coverage for a law firm’s Covid-19 business interruption claims, arguing (1) there was no direct physical loss and (2) the virus exclusion applied.

The insured brought claims for declaratory relief, breach of contract, and breach of the covenant of good faith and fair dealing. New Jersey Federal Judge Bumb observed that “[a]ll the claims require as a threshold matter that Plaintiff is entitled to coverage under the Policy due to the circumstances outlined above, despite [the insurer’s] denial of Plaintiff’s insurance claim.”

Thus, the insured had to prove both “(1) that Plaintiff suffered “direct physical loss of or physical damage to Covered Property” and (2) that the Virus Exclusion does not apply.” The court assumed arguendo the direct physical loss element went in the insured’s favor, to solely address the virus exclusion.  Judge Bumb held the virus exclusion applied to preclude coverage for all of the insured’s claims, including allegedly breaching the duty of good faith and fair dealing.

“In sum, because (1) the Virus Exclusion is unambiguous, (2) the Virus Exclusion excludes from coverage any losses caused by a virus, (3) COVID-19 is a virus, and (4) the but for cause of Plaintiff’s alleged losses and this case is COVID-19, [the insurer’s] denial of Plaintiff’s insurance claim was appropriate. Therefore, Plaintiff’s claims in this action are legally insufficient.”

Date of Decision:  April 14, 2021

Stern & Eisenberg, P.C. v. Sentinel Insurance Company, Limited, U.S. District Court District of New Jersey No. 20-CV-11277RMBKMW, 2021 WL 1422860 (D.N.J. Apr. 14, 2021) (Bumb, J.)


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Self-insured public entities sued their excess insurer for breach of contract and bad faith, claiming sums due for attorney’s fees and damages in sexual abuse suits.  The excess insurer claimed nothing was due, under its interpretation of the policy language applied to the facts at issue. The self-insureds survived a motion to dismiss the breach of contract claim and bad faith claims.

First, the court found coverage might be due, and the excess insurers could be liable to reimburse the self-insureds for sizable legal fees and for indemnification under the excess policies on the sexual abuse claims.

Next, the court observed that “[u]nder New Jersey law, in order to bring a successful bad faith claim against an insurer, an insured must show: ‘(1) the insurer lacked a ‘fairly debatable’ reason for its failure to pay a claim, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.’”

In this case, the self-insureds alleged the excess carrier “failed to ‘act in good faith in their assessment of the terms and conditions of [the Policies]’ and failed to reasonably ‘assess communications exchanged during the course of negotiations between representatives of the parties, assess the statements of their own underwriters, assess the underwriting documentation, or assess principles of law and accepted construction of the terms of art within the [Policies].” The court found these allegations sufficiently factual in nature to allow the bad faith claim to proceed.

Date of Decision:  January 26, 2021

SCHOOL EXCESS LIABILITY JOINT INSURANCE FUND v. ILLINOIS UNION INSURANCE COMPANY, U.S. District Court District of New Jersey No. CV 20-4951(SDW)(LDW), 2021 WL 248860 (D.N.J. Jan. 26, 2021) (Wigenton, J.)


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The insured suffered property damage. Under the policy, the insurer would initially pay actual cash value for the loss, and would subsequently pay replacement value if the insured first had the replacement work carried out at the insured’s own expense.  The insured raised various arguments, including a central argument that she could not afford to pay for the repairs in advance of receiving payments for those repairs from the insurer, i.e., she was in a Catch-22. (She alleged the repair costs were over $170,000 greater than the ACV payment.)

The insured sued for breach of contract, breach of the duty of good faith and fair dealing, and under the Consumer Fraud Act.  The insurer obtained summary judgment at the trial level, and the Appellate Division affirmed on the basis of the trial court’s reasoning.

Although the policy created this Catch-22, the trial court judge “recognized ‘a party to a contract may not avail itself of a condition precedent where its own conduct rendered compliance with the condition impossible.’” The trial judge did note his own “concern that defendant ‘appears to have no mechanism to provide payment of RCV value until the repairs or replacements are completed[,]’ thereby requiring the insured to ‘front’ the money and seek reimbursement later.’ But the [trial] judge nonetheless found ‘the plain language of the contract provides for a process whether RCV can only occur after the acceptance of a settlement amount or rejection thereof.’”

The trial judge rejected an impossibility of performance argument, and observed that the insured accepted the actual cash value payment and did not put on any expert evidence that the actual cash value sum the insurer paid was incorrect.

Date of Decision: December 31, 2020

Lanier v. Farmers Mutual Fire Insurance Company of Salem County, New Jersey Superior Court Appellate Division No. A-1398-19T2, 2020 WL 7822353 (N.J. Super. Ct. App. Div. Dec. 31, 2020) (Firko, Rose, Whipple, JJ.)


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This case involves a water loss coverage dispute. The factual issue is whether the cause of loss was from a specific event or a leak over time damaging the insured’s property.

The insurer denied coverage and the insured sued for breach of contract, bad faith, violation of the Consumer Fraud Act (CFA) and unconscionability. The court found a legitimate dispute of fact over the actual cause of the insured’s damages, but dismissed the bad faith and CFA claims.

As to the bad faith claim, the court set out the following standards:

  1. “A claim for bad faith on a first-party insurance claim in New Jersey requires that the plaintiff show that the insurer (1) had no “reasonable basis for denying benefits of the policy and … [had] knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.”

  2. “Under this ‘fairly debatable’ standard, a claimant who could not have established as a matter of law a right to summary judgment on the substantive claim would not be entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.”

  3. “In other words, if there are material issues of disputed fact which would preclude summary judgment as a matter of law, an insured cannot maintain a cause of action for bad faith.”

  4. Therefore, even at the motion to dismiss stage, the existence of genuine issues of material fact will require the dismissal of a bad faith claim.”

The bad faith claim in this case, however, could not survive. There was a genuine issue of fact directly relating to coverage, as to whether the water loss arose from a single event or a leak over time.  The insured herself had conceded that “certain facts that, if true, would provide at the very least a ‘fairly debatable’ and ‘reasonable basis’ for Defendant’s denial of coverage.”

The court also dismissed the CFA claim. The court observed that the CFA does not apply to denying insurance benefits, and found that the claim at issue was for denial of benefits and not some sort of fraud.

Date of Decision: November 25, 2020

Smith v. State Farm Fire and Casualty Company, U.S. District Court District of New Jersey No. CV1910319RMBAMD, 2020 WL 6938432 (D.N.J. Nov. 25, 2020) (Bumb, J.)


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The central issue in this Superstorm Sandy case was whether coverage was due for a “collapse.” Collapse was a defined term, but the defining language itself opened the door to multiple disputes over the meaning of individual words and concepts. For example, the court had to determine possible meanings of “caving in” and whether “abrupt” meant a matter of seconds or some longer period.  The parties argued the fine details of both the policy language and the facts, including competing expert reports, and the court went through a step-by-step analysis addressing the meaning of each relevant sub-term.

While the insurer made some plausible arguments, the court ultimately had to follow the principle that where the policy language reasonably could be interpreted in more than one way, the interpretation that favors coverage must be applied. Thus, at the end of the day, the trial court and Appellate Division found coverage was due.

On the other hand, the insured’s bad faith claim failed on the same record.

The court observed generally that in first party property damage cases, “the insured must demonstrate that coverage was so clear it was not ‘fairly debatable.’”  If a claim is fairly debatable, there can be no bad faith. Thus, “a plaintiff must show the lack of a reasonable basis for denying the claim or unreasonably delaying its processing, and the insurer’s knowledge or reckless disregard that it was acting unreasonably.”

Relevant to this case, “[a]n insurer’s denial of coverage may be fairly debatable if the insurer was ‘not acting in derogation of well settled New Jersey law’ and there was a split among other jurisdictions on a legal question pertaining to coverage.” Here, there was no clear New Jersey law interpreting the multiple disputes over policy language the insurer raised in denying coverage. “On that basis, [the] decision to deny coverage was fairly debatable, as there was no binding New Jersey precedent interpreting [the insurer’s] policy form.”

Moreover, there was a split in the case law among other jurisdictions concerning the scope of coverage under this same policy language. The Appellate Division favored one line of case law interpreting the policy form at issue, resulting in coverage. This did not change the reality that there was a split of authority and other courts would find no coverage. This lack of clear consensus likewise precluded a finding of bad faith.

Date of Decision: November 19, 2020

Parko Properties, LLC v. Mercer Ins. Co. of New Jersey, Superior Court of New Jersey Appellate Division No. A-4137-17T2, 2020 WL 6799137 (N.J. Super. Ct. App. Div. Nov. 19, 2020) (Oster, Vernola, JJ.)


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This long ongoing litigation involved a dispute over whether a subcontractor’s poor workmanship could be a covered “occurrence”. During the pendency of this litigation, the matter went up to New Jersey’s Supreme Court in separate lengthy litigation. The Supreme Court ultimately established law in plaintiff’s favor. In the interim before that decision, however, faced with the uncertainly of coverage, the present insured itself settled with a number of plaintiffs who sued for faulty workmanship.

The case involved multiple insurers and different policy periods.  The insured sought reimbursement in connection with the litigation and settlement sums paid.  The insured also asserted every policy was triggered by an “occurrence” during each policy period. The plaintiff moved for summary judgment on the bases that the insurers were estopped and that there were covered occurrences. The Law Division denied this motion in significant part.

The trial judge did find the policies were implicated and coverage was triggered. However, that judge also “concluded there were material factual disputes as to the reasonableness of the settlements, both as to the ‘various liabilities of the insurers[,]’ and whether defendants were ‘entitled to a diminution of’ their share of the settlements ‘based on covered claims as opposed to uncovered claims.’” Thus, the trial court denied plaintiff summary judgment.

Plaintiff and defendants then entered a “high-low” settlement. This involved a consent order for judgment, where plaintiff reserved the right to appeal the summary judgment denial, to address the insurers’ indemnification obligations. Per the consent judgment, if the Appellate Division affirmed the trial judge, the insurers would pay the low settlement sum; however, if the Appellate Division reversed the Law Division in its entirety, then the insurers would pay the high settlement sum.

On appeal, “plaintiff contended that because defendants ‘wrongfully refused coverage[,]’ causing plaintiff to defend itself against claims covered by the policy and ultimately settle those claims, defendants were liable for the entire settlement amounts if they were ‘reasonable and … made in good faith[.]’” Plaintiff relied on the seminal case of Griggs v. Bertram.

The Appellate Division framed the issue as, “having denied coverage, must defendants pay the full settlement amounts if reasonable and entered in good faith? Or, despite their denial of coverage under the policies, are defendants entitled to an allocation determination, both temporally and substantively, i.e., whether the homeowners’ claims were for ‘property damage’ covered under the policies?”

The court denied plaintiff relief, distinguishing Griggs. It then affirmed the trial court’s decision, thus resulting in the low settlement sum being due.

Unlike Griggs, in this case the defendant insurers had issued timely coverage denials. Their arguments proved successful during the very early stages of the litigation in the Law Division, and even the Appellate Division left the coverage issue open.

Thus, the court found “no basis to apply equitable principles of estoppel to bar defendants’ challenge to coverage, including a temporal and substantive allocation of covered and uncovered claims.” Rather, “a good-faith challenge to coverage is not a breach of an obligation to defend.” Further, the defendant insurers “were entitled ‘to dispute coverage based upon the language’ of the policies.”

Thus, there was no equitable basis, under Griggs, to prohibit the carriers from asserting contractual coverage defenses.  It then fell on plaintiff prove that coverage was due, and the insurers were wrong to deny coverage.  “[I]f there is a factual dispute that, once resolved, may indicate that an occurrence is not covered, and it is unlikely to be resolved at trial, an insurer may deny coverage and await judicial resolution.”  If the insured can ultimately make out its case, the carrier would have to reimburse “plaintiff for its costs and the settlement amounts, assuming they were reasonable and entered in good faith.”

The court again observed, however, “defendants were well within their rights to contest the coverage issues.” It found there were disputed issues of fact over “the nature, extent and timing of the damages” at issue. This could not be decided on summary judgment, and these factual issues “were properly left for a factfinder to conclusively resolve.”

Thus, “[r]esolution of those factual issues was necessary to determine coverage under the policies, and as a result, whether defendants’ denial of coverage was wrongful. Under controlling precedent and the facts of this case, only defendants’ wrongful denial of coverage would translate into a duty to reimburse plaintiff for reasonable settlements it entered into with the homeowners in good faith.” As there was no unequivocal reversal, plaintiff was left with the low settlement sum at the end of the day.

Date of Decision: October 5, 2020

Bob Meyer Communities, Inc. v. Ohio Casualty Insurance Company, New Jersey Superior Court Appellate Division No. A-4526-18T3, 2020 WL 5887025 (N.J. Super. Ct. App. Div. Oct. 5, 2020) (Messano, Smith, JJ.)


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This case involved a professional errors and omissions policy, with a bodily injury exclusion. The carrier denied a defense and indemnification based on this exclusion, but the insured asserted in its complaint that there was an applicable policy exception to this exclusion, bringing claims for breach of contract and bad faith.

On a motion to dismiss, the court found the exclusion applied, and the exception to the exclusion did not apply, and dismissed the breach of contract claim.

Addressing the insured’s bad faith claim, the court observed that, “In order to state a claim for bad faith denial of insurance coverage, a plaintiff must allege the following: (1) the insurer lacked a reasonable basis for denying benefits, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”  Further, “if ‘a claim is fairly debatable, no liability in tort will arise.’”

Interestingly, the court cited Third Circuit precedent on Pennsylvania’s bad faith statute for the proposition that “there can be no bad faith claim for denial of coverage if the insurer was correct as a matter of law in denying coverage.”

“Because the Court has found [the insurer] was not obligated to provide coverage under the terms of the Policy, the bad faith claim similarly fails.”

Date of Decision: September 21, 2020

Shore Options Inc. d/b/a Remax v. Great American Insurance Group, U.S. District Court District of New Jersey No. CV 20-03835 (RBK/JS), 2020 WL 5627211 (D.N.J. Sept. 21, 2020) (Kugler, J.)