Insurance Law Alert

September 2015

In This Issue
Overruling Precedent, California Supreme Court Allows Post-Loss
Assignment of Insurance Policies Without Insurer Consent
Overruling prior case law, the California Supreme Court held that a policyholder may assign
its insurance rights without an insurer’s consent if the property damage or injury resulting inloss has already occurred. Fluor Corp. v. Super. Ct. of Orange Cnty., 354 P.3d 302 (Cal. 2015).
(click here for full article)“The practice’s
broad experience‘puts it top of theleader board’”–Legal 500 U.S. 2015

South Carolina Supreme Court Prohibits Assignment of Legal Malpractice
Claim Between Adversaries
The Supreme Court of South Carolina deemed impermissible the assignment of a legal
malpractice claim between adversaries in the litigation in which the alleged malpractice arose.
Skipper v. ACE Prop. & Cas. Ins. Co., 775 S.E.2d 37 (S.C. 2015). (click here for full article)

Eighth Circuit Rules That Insurer Is Entitled to Enforce Deductibles
Notwithstanding Policy Defense Waiver
The Eighth Circuit ruled that an insurer that has waived its policy defenses is entitled to
enforce policy deductibles as a bar to coverage. W. Heritage Ins. Co. v. Asphalt Wizards, 795
F.3d 832 (8th Cir. 2015). (click here for full article)

Wyoming Court Rules That Failure to Timely Reserve Right to Deny
Coverage Based on Punitive Damages Exclusion Results in Waiver ofDefenseA Wyoming federal district court ruled that an insurer that failed to issue a timely reservationof rights waived the right to deny coverage based on a punitive damages exclusion. InterstateFire & Cas. Co. v. Apartment Mgmt. Consultants LLC, 2015 WL 5165858 (D. Wyo. Sept. 1,
2015). (click here for full article)

California Supreme Court Allows Insurer to Seek Reimbursement of
Defense Costs From Cumis Counsel
The California Supreme Court ruled that an insurer may seek reimbursement of allegedly
excessive defense fees directly from Cumis counsel. Hartford Cas. Ins. Co. v. J.R. Mktg.,
L.L.C., 353 P.3d 319 (Cal. 2015). (click here for full article)

Simpson Thacher & Bartlett LLP

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Nebraska Supreme Court Rules That Violation of Voluntary Payments
Provision Relieves Insurer From Paying Defense Costs
The Nebraska Supreme Court ruled that an insurer is not liable for defense costs where apolicyholder violates a voluntary payments provision by settling an underlying suit without theinsurer’s knowledge. Rent-A-Roofer, Inc. v. Farm Bureau Prop. & Cas. Ins. Co., 291 Neb. 786(2015). (click here for full article)

Eighth Circuit Denies Coverage, Finding That “Claim” Was Made Against
Policyholder Before Policy Period
The Eighth Circuit ruled that a “claim” was made when a policyholder received a demand formoney, even absent threats of litigation or attorney involvement. Ritrama, Inc. v. HDI-Gerling
Am. Ins. Co., 796 F.3d 962 (8th Cir. 2015). (click here for full article)

Second Circuit Rules That Filed Rate Doctrine Bars Fraud Claims Basedon “Lender-Placed” Insurance
The Second Circuit ruled that fraud claims based on lender-placed insurance rates were barredby the filed rate doctrine, even though the rates were imposed by an intermediary rather thanby the insurance companies that obtained regulatory approval for those rates. Rothstein v.
Balboa Ins. Co., 794 F.3d 256 (2d Cir. 2015). (click here for full article)

New York Court Rules That FCRA Statutory Damages Are Not Excluded
Penalties
A New York trial court ruled that statutory damages awardable under the Fair Credit Reporting
Act constitute covered compensatory damages under an errors and omissions policy.
Navigators Ins. Co. v. Sterling Infosystems, Inc., 2015 WL 4540389 (N.Y. Sup. Ct. July 28,2015). (click here for full article)

For Second Time, D.C. Circuit Finds Error in District Court’s Privilege
Rulings
The District of Columbia Circuit took the unusual step of issuing a second writ of mandamus
in a discovery dispute, concluding that the district court erred in requiring the production of
documents pertaining to a company’s internal investigation of alleged fraud. In re Kellogg
Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015). (click here for full article)2

“immediately after the injury or damage
Assignment Alerts: mean
covered by the insurance policy has occurred.”Overruling Precedent, California
Supreme Court Allows Post-Loss
Assignment of Insurance Policies
Without Insurer Consent

Under prior California case law, as set forth inHenkel Corp. v. Hartford Accident & Indem.
Co., 62 P.3d 69 (Cal. 2003), a consent-to
assignment clause precluded the transfer of
insurance rights without insurer consent,
even if a covered loss had occurred prior
to transfer. Henkel explicitly held that atransfer of insurance rights was allowed only
if a “chose in action” existed (i.e., if claims
had been reduced to a sum of money due).
Last month, the California Supreme Court
overruled Henkel, finding it inconsistent withstate statutory law. Fluor Corp. v. Super. Ct.
of Orange Cnty., 354 P.3d 302 (Cal. 2015).

Therefore, the court concluded thatafter personal injury (or property
damage) resulting in loss occurs within
the time limits of the policy, an insurer
is precluded from refusing to honor
an insured’s assignment of the rightto invoke defense or indemnification
coverage regarding that loss. This result
obtains even without consent by the
insurer—and even though the dollar
amount of the loss remains unknown
or undetermined until established later
by a judgment or approved settlement.
As the court noted, a majority of jurisdictions
allow a post-loss transfer of insurance rights
notwithstanding an anti-assignment clause.
Indeed, a New Jersey appellate court reachedthis conclusion last month in Givaudan
Fragrances Corp. v. Aetna Cas. & Sur. Co.,2014 WL 10212769 (N.J. Super. Ct. App. Div.
Aug. 12, 2015), ruling that a post-loss transfer
was valid even absent insurer consent. The
Givaudan court explained, “if there has been
an assignment of the right to collect or to
enforce the right to proceed under a policy
after a loss has occurred, the insurer’s risk isthe same because the liability of the insurer
becomes fixed at the time of loss.”

South Carolina Supreme Court
Prohibits Assignment of Legal
Malpractice Claim Between
Adversaries
In Fluor, the California Supreme Court
ruled that the enforceability of consent-toassignment clauses is governed by California
Insurance Code section 520, which provides
that “[a]n agreement not to transfer the claimof the insured against the insurer after a loss
has happened, is void if made before the loss.”
A California trial court and intermediateappellate court had declined to apply section
520, finding that assignment was prohibitedby Henkel. The California Supreme Court
reversed. First, the court held that section 520
was valid and effective despite its “relative
obscurity.” Second, the court concluded that
section 520 was not limited to first-party
insurance and extended to third-party liability
policies. Finally, the court held that thestatutory phrase “after a loss has happened”
was ambiguous and should be interpreted toAddressing a matter of first impression, theSupreme Court of South Carolina deemed
impermissible the assignment of a legal
malpractice claim between adversaries in thelitigation in which the alleged malpracticearose. Skipper v. ACE Prop. & Cas. Ins. Co.,775 S.E.2d 37 (S.C. 2015).
ACE retained counsel to represent Specialty
Logging in a lawsuit arising out of a motor
vehicle accident involving a company truck.
Unbeknownst to ACE or its appointed
counsel, Specialty Logging entered into asettlement with the other driver. Under
the settlement, Specialty Logging admitted
liability and confessed judgment in theamount of $4.5 million. Specialty Logging
further agreed to pursue a legal malpracticeclaim against ACE and its attorneys andassigned the predominant interest in that3

claim to the other driver. In exchange, theother driver agreed not to execute judgment
so long as Specialty Logging cooperated in thelegal malpractice claim against ACE and theattorneys.

by waiting four years to issue a reservationof rights, but that coverage was nonethelessunavailable because no underlying claim
exceeded the policies’ $1,000 deductible. The
Eighth Circuit affirmed.

Answering a question certified by a South
Carolina federal district court, the Supreme
Court of South Carolina held that such an
assignment is invalid. Joining the majorityof jurisdictions that have ruled on this issue,
the court explained that a prohibition on
the assignment of legal malpractice claims
between adversaries in the litigation inwhich the alleged malpractice occurred isnecessary to avoid the risk of collusion andto preserve the integrity of the attorneyclient relationship.

The Eighth Circuit ruled that a deductible
is not a “defense to coverage” that can bewaived. Rather, a deductible is akin to apolicy limit, which cannot be waived because
doing so would “create coverage where none
existed under the policy in the first place.”
In addition, the court held that the $1,000
per-claim deductible applied separately toeach fax, rejecting the argument that Asphalt
Wizards needed only to meet the deductible
amount once each policy year.

Waiver Alerts:

Eighth Circuit Rules That Insurer
Is Entitled to Enforce Deductibles
Notwithstanding Policy Defense
WaiverWyoming Court Rules That Failure
to Timely Reserve Right to Deny
Coverage Based on Punitive
Damages Exclusion Results in
Waiver of Defense

The Eighth Circuit ruled that an insurer thathas waived its policy defenses is entitledto enforce policy deductibles as a bar tocoverage. W. Heritage Ins. Co. v. Asphalt
Wizards, 795 F.3d 832 (8th Cir. 2015).

A Wyoming federal district court ruled thatan insurer waived the right to deny coveragebased on a punitive damages exclusion by
failing to issue a timely reservation of rights.
Interstate Fire & Cas. Co. v. Apartment
Mgmt. Consultants LLC, 2015 WL 5165858(D. Wyo. Sept. 1, 2015).

Asphalt Wizards was sued in a fax blastingclass action. Western Heritage, its liability
insurer, agreed to provide a defense. Four
years later, Western Heritage notified Asphalt
Wizards that it was defending subject to areservation of rights. Thereafter, Western
Heritage sought a declaration that it had no
duty to defend or indemnify the class action.
A Missouri federal district court ruled thatthe insurer had a duty to defend, but notindemnify. The court reasoned that Western
Heritage had waived its defenses to coverage

A tenant sued a management company for
injuries arising out of carbon monoxide
exposure. The suit sought compensatory
and punitive damages. The insurer agreed
to defend without reserving its right to denycoverage. More than a year later, the insurer
issued a reservation of rights based on thepolicy’s punitive damages exclusion. At theconclusion of the underlying litigation, a jury
awarded the tenant more than $22 million inpunitive damages. The management company
then argued that the insurer was estopped

4

from denying coverage for the punitive
damages based on its failure to timely issue
a reservation of rights. The court agreed andgranted the management company’s summary
judgment motion.
Under Wyoming’s “default rule,” thedoctrines of estoppel and waiver cannot
be used to expand coverage beyond thatprovided in the policy. However, an exception
exists when an insurer assumes full control of
the underlying defense with knowledge of aground of non-coverage, without disclaiming
liability or giving notice of a reservationof its right to deny coverage. Under suchcircumstances, the unconditional defense of
the underlying action constitutes a waiver ofthe right to assert policy defenses. The court
further noted that the policyholder need notestablish prejudice from the late reservation
because prejudice is assumed by the insurer’s
assumption of the defense. Here, because theinsurer was on notice from the outset as to thepunitive damage claims, its failure to disclaim
coverage on that basis prior to assuming fullcontrol of the defense constituted waiver of its
right to deny coverage based on the punitive
damages exclusion.

Defense Alerts:

California Supreme Court Allows
Insurer to Seek Reimbursement of
Defense Costs From Cumis Counsel
Reversing an appellate court decision, theCalifornia Supreme Court ruled that aninsurer may seek reimbursement of allegedly
excessive defense fees directly from Cumis
counsel. Hartford Cas. Ins. Co. v. J.R. Mktg.,
L.L.C., 353 P.3d 319 (Cal. 2015).
Hartford initially refused to defend its
insureds against a third-party lawsuit, butlater agreed to defend subject to a reservationof rights. However, Hartford declined to
pay defense costs previously incurred andto provide independent (so-called Cumis)
counsel. A California trial court ruled that
Hartford was required to defend from thedate of original tender and to fund Cumis
counsel to represent its insureds in theunderlying action. The trial court also issued
an enforcement order that required Hartford
to pay “reasonable and necessary” counsel
bills in a timely fashion. Although the orderprecluded Hartford from invoking the rate
provisions of California Civil Code section

2860 (which provides guidelines relating
to an insurer’s duty to provide independent
counsel), it specifically stated that “[t]o theextent Hartford seeks to challenge fees andcosts as unreasonable or unnecessary, it
may do so by way of reimbursement after
resolution of the [underlying action].” Anappellate court affirmed the enforcement
order.

Following resolution of the underlying
lawsuit, Hartford sought to recoup
approximately $13.5 million in defense
costs directly from Cumis counsel Squire
Sanders. The trial court rejected the claim,
finding that to the extent Hartford had any
right to reimbursement, it was from its
insureds rather than from Cumis counsel.
The appellate court affirmed, reasoning thatallowing Hartford to obtain reimbursement
directly from Squire Sanders “would frustrate
the policies underlying section 2860 and the
Cumis scheme generally.” The Supreme Courtof California reversed.
The California Supreme Court ruled that
under the particular facts and procedural
history presented, Hartford was entitled toseek reimbursement directly from Squire
Sanders. Emphasizing the limited nature of
its holding, the court explained that:[the] enforcement order plainly
permits Hartford to pursue someone
for reimbursement of allegedly
excessive legal charges. The clarity andfinality of this order removes from ourconsideration the question of whether
Hartford, as a “breaching” insurer that
was arguably caught shirking its
5

defense duties, ought to be able
to pursue anyone for alleged
overpayments … . Taking the …
enforcement order as we find it, weconclude that equitable principles ofrestitution and unjust enrichment
dictate that Hartford may seek
reimbursement for the allegedly
unreasonable and unnecessary defense
fees directly from Squire Sanders.

Nebraska Supreme Court Rules
That Violation of Voluntary
Payments Provision Relieves
Insurer From Paying Defense Costs
Addressing a matter of first impression,
the Nebraska Supreme Court ruled that aninsurer is not liable for defense costs wherea policyholder violates a voluntary payments
provision by settling an underlying suitwithout the insurer’s knowledge. Rent-ARoofer, Inc. v. Farm Bureau Prop. & Cas. Ins.
Co., 291 Neb. 786 (2015).
In 2007, Rent-A-Roofer (“RAR”) was sued
for faulty workmanship. Farm Bureau
refused to defend the suit on the basis thatit did not allege an “occurrence” and that apolicy exclusion barred coverage. RAR hired
its own counsel and ultimately settled thesuit. In 2010, RAR was sued by a different
plaintiff, who alleged similar causes of action.
This time, instead of notifying Farm Bureauof the claim, RAR proceeded with its hired
counsel, reached settlement, and then sought
reimbursement of indemnity and defense
costs from Farm Bureau. In ensuing litigation,
Farm Bureau argued that there was nocoverage because RAR violated the policy’s
notice and voluntary payments provisions. A

Nebraska trial court agreed and granted Farm
Bureau’s summary judgment motion. On
appeal, RAR amended its prayer for relief toseek only defense costs.
The Nebraska Supreme Court ruled that “aninsurer’s duty to defend is relieved when theinsured fails to notify the insurer of a claim
until after it has reached a binding settlementagreement with the claimant, in breach ofboth the notice and voluntary payments
provisions of its insurance policy.” Under
Nebraska law, prejudice is required in orderto deny coverage based on a violation of anotice provision. However, the Nebraska
Supreme Court had not previously addressed
whether a showing of prejudice is necessary
with respect to a coverage denial based on abreach of a voluntary payments provision.
Noting disagreement among jurisdictions
on this issue, the court concluded that “it isproper to maintain the prejudice requirement
when an insurer seeks to avoid the policy forbreach of a voluntary payments provision.”
However, the court held that prejudice isestablished as a matter of law where, as here,a policyholder’s settlement deprived theinsurer of the opportunity to participate inlitigation or settlement negotiations.
Significantly, the Nebraska Supreme Court
rejected RAR’s argument that its duty to
notify Farm Bureau of the claim was waived
in light of the insurer’s previous coveragedenial of an allegedly similar claim. Althougha policyholder has no continuing duty toprovide notice as to a claim that an insurer
has explicitly denied, that rule of law does not
apply where the two claims involve different
parties, occurrences and allegations.

6Claims-Made
Alert:

Eighth Circuit Denies Coverage,
Finding That “Claim” Was Made
Against Policyholder Before Policy
PeriodThe Eighth Circuit ruled that a “claim” wasmade when a policyholder received a demand
for money, even absent threats of litigation
or attorney involvement. Because the record
established demands for compensation prior
to the inception of the policy period, the court
concluded that the insurer had no duty to
defend. Ritrama, Inc. v. HDI-Gerling Am.
Ins. Co., 796 F.3d 962 (8th Cir. 2015).

In upholding the district court’s ruling, theEighth Circuit rejected Ritrama’s assertion
that a claim requires “a written, legal demand
for monetary relief, within which is an express
or implicit threat to sue.” Although the court
noted that a mere complaint or request
for information is generally insufficient toestablish a claim, it explained that some
type of demand or assertion for relief canconstitute a claim. On the facts before it,
the Eighth Circuit found that a claim wasmade prior to the inception of the policy. In
particular, the Eighth Circuit concluded thata September 2008 communication from thecustomer to Ritrama, containing a detailed
spreadsheet of damages incurred as a resultof Ritrama’s product failures constituted a“demand for relief.”
Ritrama rejects a bright-line rule that a
written threat of legal action is required toestablish a “claim.” The court emphasized
the overall “context of the surrounding
communications” between Ritrama and its
customer during 2008, including the factthat Ritrama itself referenced a “claim” incorrespondence about the dispute.

Regulatory Alert:

Second Circuit Rules That Filed
Rate Doctrine Bars Fraud Claims
Based on “Lender-Placed”
Insurance

In 2008, Ritrama, a manufacturer of castvinyl film products, received notice from acustomer that it was experiencing productquality issues. Throughout 2008, Ritrama
and the customer corresponded about the
problems. In 2011, having failed to resolve
the dispute, the customer sued Ritrama.
Ritrama’s insurer denied coverage andrefused to defend because a “claim” was madebefore the March 2009 policy inception date.
A Minnesota federal district court agreed
and granted the insurer’s summary judgment
motion. Although the policy did not define“claim,” the district court deemed it to mean
“an assertion by a third party that the insured
may be liable to it for damages within therisks covered by the Policy.” The Eighth
Circuit affirmed.

The Second Circuit ruled that fraud claims
based on lender-placed insurance rates werebarred by the filed rate doctrine, even though
the rates were imposed by an intermediaryrather than by the insurance companies thatobtained regulatory approval for those rates.
Rothstein v. Balboa Ins. Co., 794 F.3d 256 (2dCir. 2015).
When plaintiff borrowers failed topurchase requisite hazard insurance on
their properties, their loan servicer, GMAC
Mortgage, bought lender-placed insurance
from insurance companies at rates thatwere approved by regulators. GMAC thensought reimbursement from plaintiffs
at those same rates. Plaintiffs sued theinsurers, alleging that they were fraudulently
overbilled because the rates billed by GMAC
did not reflect “rebates” and “kickbacks”
that GMAC received from the insurers in
the form of free loan tracking services by
the insurers’ affiliate company. The insurers
7moved to dismiss pursuant to the filed rate
doctrine, under which any rate approvedby a governing regulatory agency is “perse reasonable and unassailable in judicial
proceedings brought by ratepayers.” A New
York federal district court disagreed, holdingthat the filed rate doctrine did not apply
because plaintiffs were not direct customersof the rate filer—i.e., the insurers. However,the district court acknowledged a conflictin authority on this issue, and certified its
decision for interlocutory appeal. The Second
Circuit reversed.
The Second Circuit ruled that the filed rate
doctrine applied because allowing plaintiffs’
claims to proceed “would undermine therate-making authority of the state insurance
regulators who approved [the insurers’]
rates.” Plaintiffs’ allegations that they were
overbilled rested on the theory that they were
improperly charged the full rates (which wereapproved by regulators) instead of lower rates
reflecting the value of the free loan tracking
services. The court explained that underthe “nonjusticiability principle” inherent
in the filed rate doctrine, it is “squarely forthe regulators to say what should or should
not be included in a filed rate.” In addition,
the court held that allowing the claims toproceed would offend the “nondiscrimination
principle” of the filed rate doctrine, underwhich challenges to rates are barred if theywould undermine the scheme of uniform rate
regulation. The court noted that allowing
plaintiffs to recover damages would operate togive them a preference over other borrowers
in the form of a discounted rate. The Second
Circuit expressly rejected the district court’s
finding that the filed rate doctrine does not
apply where, as here, the rate is imposed
through an intermediary rather than by the

insurer directly. The decision illustrates
New York’s broad application of the filed
rate doctrine to claims that do not challenge
the amount of a rate per se, but rather
allege fraud in the context of an overall
insurance scheme and would, if successful,
affect the rates and/or authority of ratesetting regulators.
As discussed in our May 2011 and October2010 Alerts, other courts have similarly
enforced the filed rate doctrine to bar
fraud claims against insurance companies,
although application of the doctrine varies
by jurisdiction.

Damages Alert:

New York Court Rules That FCRA
Statutory Damages Are Not
Excluded Penalties
A New York trial court ruled that statutory
damages awardable under the Fair Credit
Reporting Act (“FCRA”) constitute covered
compensatory damages under an errors andomissions policy. Navigators Ins. Co. v.
Sterling Infosystems, Inc., 2015 WL 4540389(N.Y. Sup. Ct. July 28, 2015).
Navigators Insurance argued that it had
no duty to defend or indemnify two FCRA
actions filed against policyholder Sterlingon the basis that the suits sought only
“penalties,” which were excluded fromcoverage. The court disagreed, findingthat damages awardable for willful FCRA
violations constituted covered compensatory
damages. Noting that categorization ofdamages is “not always so clear cut,” thecourt concluded that the FCRA damages
functioned “primarily” as compensation8

rather than punishment. In so ruling, thecourt explained: “[t]hat Congress provided
a consumer the option of recovering either
actual or statutory damages, but not both,supports the presumption that they serve
the same purpose.” The court also reasoned
that FCRA statutory damages served a nonpunitive purpose by “facilitat[ing] litigation
in instances in which actual damages are
difficult or impossible to calculate.” Finally,
the court explained that interpreting thestatutory damages as compensatory “results
in a more harmonious reading of the FCRA’s
overall damages structure” because the FCRA
contains a separate provision relating topunitive damages.

Discovery Alert:

For Second Time, D.C. Circuit Finds
Error in District Court’s Privilege
Rulings
The District of Columbia Circuit took theunusual step of issuing a second writ ofmandamus in a discovery dispute, concludingthat the district court erred in requiring the
production of documents pertaining to acompany’s internal investigation of alleged
fraud. In re Kellogg Brown & Root, Inc., 796
F.3d 137 (D.C. Cir. 2015).
In a qui tam action brought under the
False Claims Act, an employee sought
the production of documents created inconnection with an internal investigation
conducted by his employer, KBR. Last year,
the District of Columbia federal district court
ordered KBR to produce the documents,
finding that attorney-client privilege did
not apply. As discussed in our July/August
2014 Alert, the District of Columbia Circuit
granted a writ of mandamus vacating the
district court’s order. In re Kellogg Brown& Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).
There, the D.C. Circuit held that a company’s
internal investigation documents areprotected by attorney-client privilege so longas “obtaining or providing legal advice wasone of the significant purposes of the internal
investigation … even if there were also otherpurposes for the investigation and even if theinvestigation was mandated by regulation.”On remand, the district court again ordered
the production of the documents, this time on
the basis that privilege was impliedly waived.
Last month, the D.C. Circuit issued a second

writ of mandamus, ruling that the district
court erred in finding waiver.
The D.C. Circuit ruled that KBR did not waive
privilege either by (1) allowing its designateddeposition witness to review the privileged
documents in preparation for his testimony,or (2) placing the documents “at issue” inthe litigation. First, the court ruled that theattorney-client privilege and work-productprotection covering internal investigations
are not defeated by a counter-party noticing
a deposition on the topic of the privileged
nature of the investigation. As the court
noted, “[a]llowing privilege and protection
to be so easily defeated would defy ‘reason
and experience.’” Second, the court held that
testimony about the privileged nature of theinvestigation could not be a basis for finding“at issue” waiver because a “depositiontranscript is simply a record of what was
said, not itself an argument.” The court
further held that references to the internal
investigation in KBR’s summary judgment
memorandum did not constitute “at issue”
waiver because KBR did not explicitly rely on
the results of the investigation as a defense.
Rather, KBR merely mentioned, as part of a“recitation of facts,” that it had conducted aninternal investigation and had not reported
any wrongdoing to the government. Based on
this circumstance, the D.C. Circuit held that
it was error for the district court, in ruling on
the motion for summary judgment, to inferthat KBR was affirmatively relying on thecontents of the investigation documents andhad thus placed the documents “at issue” inthe litigation.

9

Simpson Thacher has been an international leader in the practice of insurance and reinsurance law for
more than a quarter of a century. Our insurance litigation team practices worldwide.
Mary Kay Vyskocil+1-212-455-3093
mvyskocil@stblaw.com

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This edition of the
Insurance Law Alert was
prepared by Mary Beth Forshaw(mforshaw@stblaw.com/+1-212455-2846) and Bryce L. Friedman(bfriedman@stblaw.com/+1-212-4552235) with contributions
by Karen Cestari(kcestari@stblaw.com).

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