HKMP E-Letter
April 2018
HKMP’s George Hardin Wins Insurance Coverage Appeal Before The NY Court Of Appeals Involving Additional Insured Status 
Lessees, construction contractors, and other persons and entities often agree in contracts to procure insurance policies that afford coverage to other parties as additional insureds. Insurance companies, in turn, have developed a variety of policy provisions addressing the entities to whom the insurer is willing to grant coverage as additional insureds.
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HKMP Successfully Enforces Forum Selection Clause in an Insurance Policy
HKMP partner John Favate and senior associate Art Povelones recently were successful in having a federal court enforce a forum-selection and choice-of-law clause in an insurance policy resulting in a declaratory judgment initiated by the policyholder being transferred to the designated jurisdiction. The clause in the policy designated the United States District Court for the Southern District of New York or the New York Supreme Court, New York County as the forums for disputes regarding the policy and further provided that New York law would govern such disputes without regard to choice-of-law rules. 
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NY Court of Appeals Ruling - No Unavailability Exception to Policyholder’s Responsibility for Uninsured Periods in Long-tail Environmental Claims
The New York Court of Appeals has ruled that, where indemnity expenses for long-tail injury or damage are allocated on a pro rata basis, the policyholder bears responsibility for all periods of no coverage, including periods for which coverage for the risk in question was not available to the policyholder.  Keyspan Gas E. Corp. v. Munich Re. Am., Inc. , No. 20 (Mar. 27, 2018).
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New York’s Highest Court
Expands Discoverability of Social Media Content
In Forman v. Henkin , 2018 NY Slip Op 01015, the New York Court of Appeals established a framework for lower courts to follow when determining the discoverability of social media records and postings. At issue in Forman was the discoverability of the “private” contents of the injured plaintiff’s Facebook account.
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Seventh Circuit Rejects "Cumulative Exposure Theory" And Helsinki Statement

The United States Court of Appeals for the Seventh Circuit, Northern District of Illinois, in Krik v. Exxon Mobil Corp ., No. 15-3112, 2017 U.S. App. LEXIS 16795 (7th Cir. Aug. 31, 2017) upheld the barring of plaintiff expert, Dr. Arthur Frank, from testifying as to the "cumulative exposure"/"each and every exposure theory"/"single fiber"/"any exposure" theory and upheld the preclusion of the Helsinki Statement as evidence from which a jury could infer defendant's liability as to causation. 
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Recent Developments Regarding Insurer Estoppel
New Jersey law has long held that an insurer’s control of the defense of litigation against a policyholder is incompatible with a denial of liability for indemnification of any judgment or settlement unless the insurer has reserved the issue of liability with the policyholder and informed the policyholder that it may accept or reject the defense subject to the reservation. If the insurer does not do so, and if the policyholder is thereby prejudiced by the insurer’s control of the defense, the insurer may be estopped from denying coverage.  Merchants Indem. Co. of N.Y. v. Eggleston , 37 N.J. 114 (1962). Courts applying New Jersey law have continued to explore the circumstances of insurer estoppel. Two recent decisions have provided further guidance in the area.
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New Jersey Appellate Division Upholds Judgment Against
Insurance Company For Negligent Valuation of Policy
In Loyle Lanes Bowling Center v. Greater New York Mutual , 2017 N.J. Super. Unpub. LEXIS 2215, the plaintiffs owned a bowling alley that a fire destroyed. The plaintiffs alleged that a Brouwer Hansen and Izdebski Insurance Associates’ ("BHI") employee negligently provided incorrect advice that their policy was sufficient to cover the cost of rebuilding the entire bowling alley, should the need arise. The need arose, but there were not enough funds to cover the cost of rebuilding the structure. The total cost amounted to $6.4 million, while the insurance appraisal from the policy was $3.65 million.
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Vacating a Final Judgment in New Jersey 
The New Jersey Appellate Division in the case of Brandeker v. The Scotts Company , 2018 N.J. Super. Uppub. LEXIS 437, addressed the issue of "misapplication of the court's discretion." 

By way of background, in an asbestos matter, a trial judge barred plaintiff's experts and granted summary judgment to defendant The Scotts Company on January 10, 2014. After the last remaining defendant settled, the new judge assigned to the case entered judgment that closed/dismissed the case in the entirety on July 10, 2015. 

In May 2015 plaintiff counsel learned that The Scotts Company had in fact made erroneous statements in discovery responses and The Scotts Company had located in the spring of 2014 samples of its Scotts turf builder product which was the subject of prior discovery requests.  
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