In Biltmore Assocs., LLC v. Twin City Fire Insurance Co., 2009 WL 1976071 (9th Cir.
The Ninth Circuit Court of Appeals has held that an insured vs. insured exclusion bars coverage for a suit by a debtor-in-possession against former directors and officers of the company. Biltmore Assocs. v. Twin City Fire Ins. Co., No. 06-16417, 2009 WL 1976071 (9th Cir. July 10, 2009). The court rejected the argument that the debtor-in-possession was a different legal entity from the pre-bankruptcy company insured under the policy.
Two D&O insurers have asked the U.S. Bankruptcy Court for the District of Minnesota to lift an automatic stay in a bankruptcy proceeding pending against their insureds so that the insurers can pursue their coverage defenses as counterclaims against the insureds in a pending declaratory judgment action.In Re Petters Company, Inc., et al., Case No. 08-45257 (Bankr. D. Minn.).
The United States District Court for the Eastern District of New York, applying New York law, has held that an insured did not violate an insurance policy's cooperation clause when it agreed, without providing advance notice to the insurer, to lift the automatic bankruptcy stay with respect to certain personal injury actions filed against it. Admiral Ins. Co. v. Grace Indus., Inc., 2009 WL 2222369 (E.D.N.Y. July 23, 2009).
In light of the possibility that several hundred FDIC-insured banks and thrifts may fail in the next two- to three-year period, many clients and friends of the firm have requested a summary of the legal concerns that arise for officers and directors immediately following the seizure of an institution by the FDIC, as well as steps that may be taken to be better prepared before a failure.
A federal district court in Delaware, applying New York law, has affirmed a bankruptcy court's dismissal of an adversary proceeding brought by a bankrupt home mortgage company against its directors and officers liability insurers, holding that coverage for a pre-petition lawsuit against the mortgage company was barred by application of an “inadequate consideration” exclusion.Delta Fin. Corp. v. Westchester Surplus Lines Ins. Co., 2009 WL 2392882 (D. Del. Aug. 4, 2009).
Reliance Insurance Company, which had consented to the entry of an Order of Rehabilitation by the Commonwealth Court of Pennsylvania on May 29, 2001, and which was ordered by the court into liquidation on October 3, 2001, reached a Commutation, Settlement Agreement, and Release with its reinsurer, Munich Reinsurance America. The Settlement Agreement is dated December 29, 2008.
On August 28, 2009, Delta Financial Corp. (“Delta”) filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit seeking to overturn the dismissal of its coverage action against Westchester Surplus Lines Insurance Co. (“Westchester”) and United States Fire Insurance Co. (“USFI”). The coverage action, which was filed as a part of an adversary proceeding with the United States Bankruptcy Court for the District of Delaware, sought coverage under two D&O policies issued by Westchester and USFI respectively.
The U.S. Bankruptcy Court for the Southern District of New York recently prohibited insurers from terminating debtors' insurance contracts based on so-called "cesser" clauses, which provided for the automatic termination of insurance coverage upon the commencement of proceedings under any bankruptcy or insolvency law. LaMonica v. N. of Eng. Protecting & Indem. Ass'n Ltd. (In re Probulk Inc.), 407 B.R. 56 (Bankr. S.D.N.Y. 2009).
The U.S. Court of Appeals for the Ninth Circuit has held that a creditor trustee could not recover claims under a Director & Officer insurance policy because of the policy's "insured v. insured" exclusion. Biltmore Assocs., LLC v. Twin City Fire Ins. Co., Ad. No. 07-16036, 2009 US App. LEXIS 15322 (9th Cir. July 10, 2009).