Week Ahead in Insurance: Sept. 20, 2021

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(Reuters) – Here are some events of interest to the Insurance Law community this week. All times are local unless otherwise noted.

Tuesday, Sept. 21

9 a.m. – The 3rd U.S. Circuit Court of Appeals will consider whether Evanston Insurance has a duty to defend Vitamin Energy against a false-advertising lawsuit by the makers of 5-hour Energy, based on a comparison chart that indicated Vitamin’s energy shots have more Vitamin B than 5-hour’s. Evanston’s policy insures Vitamin against claims of Advertising Injury, defined as an injury “arising out of oral or written publication of…defamatory or disparaging material, occurring in the course of (Vitamin’s) Advertisement.” The lower court ruled Evanston had no duty to defend because 5-hour Energy had never alleged disparagement: it had accused Vitamin of making false claims about Vitamin’s products, not about 5-hour’s. Inferring disparagement where none had been alleged would go beyond the “four corners” of the complaint, contrary to Pennsylvania law, the judge ruled. On appeal, Vitamin argues that the ruling is contrary to established law on an insurer’s duty to defend, under which the allegations must be liberally construed to determine if there is any potential for coverage.

The case is Vitamin Energy LLC v. Evanston Insurance Co., 3rd U.S. Circuit Court of Appeals No. 20-3461. For Vitamin Energy: Patrick Gibson of Ippoliti Law Group and George Schooff of Legal Services Group. For Evanston: Michael DiFebbo and Gavin Fung of Kennedys Law.

10 a.m. – U.S. Bankruptcy Judge Laurie Selber Silverstein in Delaware is scheduled to hold a hearing on the proposed disclosure statement for the Boy Scouts of America’s latest plan of reorganization, a key milestone on the route to confirmation. The plan and disclosure statement were amended on Sept. 15 to incorporate changes to two settlement agreements, including an increase in The Hartford’s commitment from $650 million to $787 million. That brings the total amount available to pay survivors of abuse about $1.887 billion. However, the Tort Claimants Committee and other parties, including Liberty Mutual, have asked Silverstein to delay the hearing to allow for more time to review the Fifth Amended Plan.

The case is In re Boy Scouts of America, U.S. Bankruptcy Court for the District of Delaware No. 20-10343. For the Boy Scouts: Paige Topper of Morris, Nichols, Arsht & Tunnell and Jessica Lauria of White & Case. For Hartford: James Ruggeri of Shipman & Goodwin; Philip Anker of Wilmer Cutler Pickering Hale and Dorr; Gregory Flasser of Bayard. For the Tort Claimant Committee: James O’Neill of Pachulski Stang Ziehl & Jones. For Liberty Mutual: Karl Hill of Seitz, Van Ogtrop & Green.

Thursday, Sept. 23

8:45 a.m. – The ABA National Legal Malpractice Conference sets a civil tone with its opening session on handling Lawyers Professional Liability claims, “Can’t We All Just Get Along?” Moderator Randall Allen Miller and panelists Terri Mascherin of Jenner & Block, Christopher Mixon of Ogletree Deakins, and Charles Plattsmier of the Louisiana Attorney Disciplinary Board explore how lawyers-behaving-badly can not only lead to malpractice claims but how it can also color the claims-handling and litigation processes. The two-day live conference in Nashville is intended for legal liability, malpractice, and insurance professionals, with substantive updates and strategy sessions on topics such as handling the “case-within-a-case” trial, fighting the imposition of sanctions, and turning the tables on a professional liability claim by focusing on the client’s behavior rather than the lawyer’s. For more information, click here.

8:45 a.m. – The Claims and Litigation Management Institute’s Construction Conference gets under way in San Diego with a keynote address by Gary London of London Moeder Advisors. The two-day live event includes sessions on insurance, risk and claims management – from a primer on what’s covered under the Builders Risk, CGL, Professional Liability and Subcontractor Default policies, to a review of recent case law, national and regional “hot topics” breakouts, and emerging exposures like ransomware and digital extortion. For the full agenda, click here.

9 a.m. (ET) – The New York City Bar and its Insurance Section team-up with the Insurance Federation of New York and the Life Insurance Council of New York to present Current Issues in Insurance Regulation 2021, marking the 31st year for the annual series. The half-day webcast opens with a keynote address by My Chi To, executive deputy insurance superintendent of the New York Department of Financial Services, followed by panel discussions on the impact of digital technology, and on the insurance M&A boom. The conference closes with a Commissioner’s Roundtable, featuring regulators from Missouri, Oregon, and Texas, moderated by Scott Fischer of DLA Piper. For details, click here.

Know of an event that could be included in Week Ahead in Insurance Law? Contact Alexia Garamfalvi at alexia.garamfalvi@thomsonreuters.com

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Nancie Kazmierczak