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When a policy contains a “cost of making good provision,” is an insurer able to wholly deny coverage falling under its purview, even if it just applies to a small part of the claim? This question was recently brought to the Central District Court of California in The Haven at Ventura, LLC v. General Security Indemnity Company of Arizona, et al. In this case the Plaintiff, Ventura, brought suit against the Defendant, General Security, alleging an improper denial of benefits under a $69 million “builders risk policy.” The underlying circumstances giving rise to a claim for coverage in this action began in September of 2020, and concern mold damage to new, incomplete buildings on the Plaintiff’s property. After expert evaluation, it was determined that the buildings needed “detailed remediation,” a request for the cost of repairs subsequently filed with the Plaintiff’s insurer. During this period, the correction of the damage sustained caused the opening of the residential property to be delayed, thus resulting in additional financial damages to the Plaintiff. The claims brought by the Plaintiff under the builders risk policy included “faulty workmanship” and “excluded dampness of atmosphere.” Coverage was subsequently denied by the named Defendant and several other involved insurance providers.

The Plaintiff states that multiple attempts were made to avoid the process of litigation, but upon the inability to come to an agreement, they felt it necessary to file suit. The Plaintiff brought their claim against the Defendants for breach of contract and is asking the Court for upwards of $5 million as a result of the loss of income from their inability to collect rent during the period that the damaged buildings were undergoing repairs. An interesting aspect of this litigation is the novelty of the “cost of making good provision” at issue in the policy, as it is not yet as common in the United States as in foreign courts in Europe and Canada. This kind of provision essentially requires the insurer to cover the costs of making a covered property “good” or in other words, back to its original condition after damage as occurred. The Plaintiff’s argument relies on the intent and purpose of such a provision, and states that a complete denial of coverage is in opposition with the intended results of its inclusion in the policy. The Plaintiff further argues that in order to determine how the “make good” provision should be interpreted the Court should look to the example set by countries that have applied them for decades. The Plaintiff asserts that under this method of interpretation, their argument that the “make good” provision did not apply to the entirety of the claim and thus cannot be relied upon to deny the claim in full must prevail.

Counsel for the Plaintiff states that an argument blaming “damp atmosphere” for the mold damage is not based on adequate evidence, and thus the Defendants’ assertion that this was the underlying cause of the mold damage is incorrect. Further, the Plaintiff contends that the relevant provision applies to damages from “faulty workmanship” taking place directly adjacent to a loss, and not the kind of damages at issue in this circumstance, therefore the Defendant’s justification for denial under the “make good” provision is invalid. The Defendants have not yet responded to the allegations, though the next steps in this case will undoubtedly be cause for attention due to the novelty of the provision at issue.

covid-19-and-insurance-claimsThough the COVID-19 pandemic may now be the new normal to many of us, courts are continuing to address new questions stemming from ongoing issues related to the pandemic. As businesses struggled to remain unharmed by the pandemic and protect their employees from illness, some insurers have made the task even more difficult through denials of coverage relating to COVID. A Federal Court in Virginia recently dealt with one such issue in Carilion Clinic v. American Guarantee and Liability Insurance Company.

The Plaintiff in this case, Carilion Clinic, brought suit against their insurer alleging damages for the insurer’s denial of coverage under the Plaintiff’s $1.3 billion property damage and business interruption policy, for which they paid approximately $1 million in premiums. The insurer failed to honor the terms of the policy and provide coverage after more than 10% of the Plaintiff’s employees became ill with COVID. The Plaintiffs alleged that this failure manifested in two ways, first that the insurer failed to provide coverage for property damage sustained through the spread of COVID on company property, and second for denial of coverage relating to business interruption.

Though many courts have held that damages related to COVID do not require coverage, the Court in this case stepped away from that line of thought and stated that the Plaintiff’s claims relating to business interruption warranted extended discovery, as the filing deadline resulted in a hasty discovery process and issues relating to business interruption had not been fully presented to the Court.


The National Trial Lawyers Announces M. Austin Mehr as One of Its Top 100 Civil Plaintiff Trial Lawyers in Kentucky For Immediate Release

The National Trial Lawyers is pleased to announce that M. Austin Mehr of Mehr Fairbanks Trial Lawyers has been selected for inclusion into its Top 100 Civil Plaintiff Trial Lawyers in Kentucky, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications in criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and provides essential legal news, information, and continuing education to trial lawyers across the United States.


In the case of Legacy Health Services, Inc. v. Illinois Union Insurance Co. and Columbia Casualty Co., Defendant Illinois Union Insurance Company filed a Notice of Removal, which transferred the case to federal court in the Western District of Kentucky. On behalf of the Plaintiff, Legacy Health Services, Inc., Mehr Fairbanks Trial Lawyers filed a motion to remand the case back to Christian Circuit Court. On October 14, 2021, the federal court granted Plaintiff’s motion to remand, finding that Defendant Illinois Union Insurance Company had not met its burden of showing that removal was proper. Since the federal court did not have jurisdiction, removal was improper. The case has been remanded to state court.


In the Kentucky bad faith case of Wright v. Allstate Property and Casualty Insurance Company, Allstate refused to turn over its claim file except for a two-month window, even though the claim duration was from 2014 to 2019. MFP filed the case against Allstate for unfair claims settlement practices act violations, alleging delays in making a fair offer to Mr. Wright who was seriously injured in a car crash. The trial Court rejected Allstate’s argument and ordered Allstate to produce the entire file, which would include those portions of the claim file that was created after the bad faith claim was initiated.

The ruling follows Kentucky law that says claims files are potential evidence that the claimant lawyers should get to see, because they can provide proof of bad faith. An insurance company is required by law to record its activities in the claim file. This can provide an excellent record of what the Insurance company was doing, what they were really thinking, and what they were NOT doing.


The details of this case involve business income loss insurance coverage claims by several businesses in Illinois and the subsequent denial of coverage regarding those claims by Society Insurance Company, which is an insurance company headquartered in Wisconsin. The lawsuits of a few companies turned the case into a multi-district litigation involving plaintiffs from several midwest and southern states.

This case centrally revolves around the claims denied by Society Insurance Company and the insurance company’s communications regarding their coverage for COVID-19 losses. Rick Parks, the CEO of Society Insurance Company, has stated that the company spoke wisely regarding their coverage and did not mislead any of the plaintiffs regarding their coverage.

The claimants allege that Society Insurance Company issued “wholesale, cursory coverage denials” that violate coverage policies and “discouraged them from filing insurance claims.”


The Employee Retirement Income Security Act of 1974 is a wide-reaching federal act that offers a range of protections to employees and consumers. ERISA has just been utilized by actress Hilary Swank to reach a settlement regarding company-provided health care and its coverage of various health-related procedures.

Hilary Swank sued SAG-AFTRA, alleging in her complaint that its policies regarding ovarian cyst and endometriosis are discriminatory, sexist, and “shockingly antiquated.”

Swank, as an actress, is part of the SAG-AFTRA union, who are the employee representatives of thousands of people in the entertainment industry. According to her complaint, Swank has had lifelong endometriosis, a disorder that affects the uterus and causes numerous health issues for the reproductive systems of women around the world. When Swank sought medical treatment for advanced endometriosis that was significantly impacting her health and quality of life, SAG-AFTRA denied her medical coverage for the necessary ovarian cyst procedure.


A Manufacturing Company has sued the Liberty Mutual Fire Insurance Company for bad faith insurance pertaining to a denied policy coverage. The claimants believe that Liberty Mutual’s insured caused a deadly explosion in Idaho – where three claimants allege that the company acted with negligence regarding the purification and transportation of a magnesium solution to be destroyed.

US Ecology Inc., the contracted company to destroy the materials, say that Reade’s solution contained other, non-magnesium materials that caused an explosion at their facility. Once US Ecology Inc. drained the barrels and prepared for destruction, one of their employees entered the solution pit and was killed in an explosion. There was also significant property damage.

Reade Manufacturing brought the lawsuit against Liberty Mutual because they believe the insurance company is not covering the underlying damages in good faith and in accordance with their given policy. The issue is whether there was an “occurrence” as defined by the policy. This policy is worth 2 million dollars and could help Reade navigate a difficult situation. What is unknown is whether Reade did act with gross negligence in the transportation and distribution of these materials.

Knowing your rights and the requirements necessary in pursuing a claim if you have been denied benefits under an employee benefit plan are crucial. A recent case involving multiple Cigna entities, Connecticut General Life Insurance Company, and the NFL Player Insurance Plan shows how important this really is and why it matters to you.

The insurance companies and the NFL Player Insurance Plan are collectively seeking a little more than $1,000,000 in attorney fees following a lawsuit involving health benefit claims. The lawsuit, Advanced Physicians, S.C. v. Conn. Gen. Life Ins. Co. (case number 3:16-CV-2355-G), was filed in 2016 and is currently before the United States District Court for the Northern District of Texas. The Plaintiff in this case was Advanced Physicians, S.C., a medical facility that began treating retired NFL players in 2007. The NFL Player Insurance Plan provides medical benefits to both current and former NFL players. The insurance plan is governed by a federal law called the Employee Retirement Income Security Act of 1974. This Act is often shortened to “ERISA.”

After a lengthy 5-year litigation, the Court granted judgment in favor of the Defendants, who included both Cigna and the NFL Player Insurance Plan. The NFL plan designated insurance companies to be the administrator of the plan. Connecticut General Life Insurance Company and Cigna were both named administrators at various times under the plan. At the time of the lawsuit, Cigna processed claims submitted under the NFL plan and made determinations on whether to approve or deny health claims. Leading up to the lawsuit, Advanced Physicians, S.C. had submitted claims through the NFL plan on behalf of its patients. The lawsuit was filed by Advanced Physicians, S.C. after certain denials of health benefits occurred under the NFL plan.


Bayer has been involved in lawsuits regarding Roundup since they acquired Monsanto in 2016, but the company is now facing increased pressure due to new cases of Non-Hodgkins Lymphoma in previous users. To combat the future legal challenge, Bayer has decided to set aside upwards of four billion dollars for incoming suits.

Bayer has also stated that it has undergone discussions of discontinuing the Roundup product line and replacing it with a safer alternative for non-commercial use. Roundup would still be available for commercial use. What is interesting about this case is that demonstrated the blurred lines between product effectiveness, product risk, and company responses to those risks. For example, the earliest Bayer could discontinue Roundup is 2023 – five years after the first Monstanto suits and the new medical research indicating its health risks.

The tendency among large companies to delay recognition of severe product risks in hopes of sales or minimized public relations impacts causes massive suffering for clients. For instance, Monsanto’s Bovine Growth Hormone and Roundup (among others), Johnson and Johnson hernia mesh patches, and a slew of other products (FDA) have all experienced issues that have later caused recalls. The FDA publishes a list of recalled products on a daily basis, many of which are classified as Type 1 recalls that pose a lethal risk to consumers.

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