First Circuit holds that whether sexual harassment began before policy period is question for factfinder

I have previously written about a decision of the United States District Court for the District of Massachusetts in the case of  Manganella v. Evanston Ins. Co., 2011 WL 5118898 (D. Mass.).  A Jasmine employee, Burgess, sued Jasmine and another employee, Manganella, on the ground that she had been sexually harassed by Manganella. 

Jasmine sought defense and indemnity under an insurance policy issued by Evanston Insurance.  Evanston denied coverage on the ground that the sexual harassment did not happen in its entirety after the policy period began, as required for coverage under the policy.

The District Court granted summary judgment to Jasmine, holding that Evanston had not met its burden of proving that the harassment began before the policy period.

Evanston appealed to the First Circuit Court of Appeals.  The issue on appeal was whether the finder of fact, rather than a judge deciding a question of law, must conclude that the sexual harassment did or did not begin before the policy period. 

Burgess's complaint alleged that Manganella had subjected her to sexual harassment throughout her employment with Jasmine, which began prior to the policy period.  She later filed an affidavit stating that the harassment did not begin until after the policy period began.  Later she asserted that although Manganella made off-color comments prior to the policy period, she was not threatened by him until after the policy period began.

In Manganella v. Evanston Ins. Co., __ F.3d __, 2012 WL 6217625 (1st Cir.), the First Circuit held that considered in the light most favorable to Jasmine, Burgess's statements do not necessarily show that the conduct giving rise to the discrimination complaint began before the policy period.  The court also held that when considered in the light most favorable to Evanston, the statements could support the inference that the harassing conduct did include the pre-policy period statements.

The court held that the undisputed facts therefore do not entitle either party to summary judgment.  Rather, the issue "is a quintessential question for a factfinder." 

New York times discusses allocation of loss in football concussion lawsuits

The article, here, is a bit overwrought about possible difficulty that youth sports leagues might have in obtaining insurance in the future, but it does nicely describe the issues facing both insureds and insurers at the beginning of long-tail loss claims.

US District Court holds that for forgery coverage an email promising compensation is not similar to a check, draft or promissory note

Kenneth Engleman alleged that CustomMade and its CFO induced him to leave a lucrative job to work for CustomMade as a partner and co-owner of the company, but then did not follow through with the promises.  

During the course of the underlying suit, CustomMade's CFO realized that a critical email allegedly sent by him to Engleman had been altered.  At least in part as a result, the court dismissed Engelman's complaint.

CustomMade asserted that it was entitled to defense costs under forgery coverage in an insurance policy issued to it by Sentinel.  Sentinel denied coverage for the claim.

In CustomMade Ventures Corp. v. Sentinel Ins. Co., Ltd., 2012 WL 4321060 (D. Mass.), the United States District Court for the District of Massachusetts granted summary judgment to Sentinel.  The court noted that the forgery coverage came within a special property coverage form, and that for it to apply the loss must involve covered property. The  policy defined covered property as "checks, drafts, promissory notes, or similar written promises, orders or directions to pay a sum certain."

CustomMade argued that the email was  a written promise to pay a sum certain and therefore came within the forgery coverage.  The court held that the email was not a "similar written promise" to checks, drafts, or promissory notes. 

New York state government creates a great resource

The state of New York has set up a website to monitor how insurers are responding to Hurricane Sandy claims.  It includes the average time it takes each insurer to respond to, pay, and resolve claims, and the percentage of complaints out of total claims filed.  This will be a useful resource for anyone choosing a homeowner's insurer.