Transition Issues with the new Rules

Thanks to a reader of our blog, Ted Key, for bringing this case to our attention: Onex Corporation et al. v. American Home Assurance et al., 2009 CanLII 72052 (Ont. S.C.J.).

This is the first decision we are aware of that addresses the inevitable transition issues that will arise from the new Rules of Civil Procedure that came into effect on January 1, 2010.

The plaintiffs, in an excess insurance case, filed a motion for summary judgment. The defendants then filed for directions to clarify and confirm that the current rules will apply when the summary judgment motion is argued.

The question decided is this: If a motion for summary judgment under rule 20 is filed in 2009 but heard in 2010, after the rule changes take effect, should the matter be heard under the old rule or the new rule?

The judge concluded that the motion should be heard under the new rule.

I'll leave you to read the decision for the details but it includes a helpful analysis of the current rule and lack of transition provisions.

Paragraph 8 of the Endorsement indicates: "In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed."

U.S. District Court holds endorsement eliminating coverage ineffective for failure to comply with statutory notice requirements

I have been discussing Whitaker Corp. v. Am. Nuclear Insurers, 2009 WL 4342512 (D. Mass.), a case involving insurance coverage for property owners of a superfund site.

In my last post I discussed Endorsement 112. The court held that its language excluded coverage for environmental cleanup costs.

The court went on to note that Endorsement 112 was therefore an elimination of coverage, since the policy otherwise covered environmental cleanup costs.

The court cited Mass. Gen. Laws ch. 175, § 111A, which requires that when a liability insurer eliminates coverage it attach to each policy a printed notice setting forth what coverages have been eliminated, and states that if the insurer does not do so then the coverage shall remain in full force and effect.

It was undisputed that no printed notice accompanied the Endorsement 112.

ANI argued that no notice was required because Endorsement 112 was a "new" policy rather than an amendment of an existing policy. The court disagreed, noting that the endorsement was entitled "Amendatory Endorsement" and is numbered "Endorsement 112" to "Policy No. NF-44."

The court held, "the Endorsement by any name is an amendment to the existing policy and it is incredulous for ANI to insist otherwise."

New Tag Line

I have struggled for ten years with a tag-line for my business.



Past interations:

Insurance Consulting Services

Unbiased Insurance Consulting

Unbiased Insurance Assurance



I really liked "Insurance Assurance" but the trademark office in Washington turned it down as too close to "Assurance Insurance" held by a broker.



Here is the latest:



Consulting In, But Never Selling, Insurance.



Comments welcome.

More on Whitaker

In my last posts, here, and here, I have been discussing Whitaker Corp. v. Am. Nuclear Insurers, 2009 WL 4342512 (D. Mass.), a case involving insurance coverage for property owners of a superfund site.

In my last post I discussed the facility form, under which the court held that coverage was initially triggered.

The facility form contained "Endorsement 112," which provided that the insurer, ANI, would pay "all sums which the insured shall become legally obligated to pay because of bodily injury or property damage, or as covered environmental cleanup costs because of environmental damages."

Covered damages were defined as "damages because of bodily injury or property damage to which this policy applies; but covered damages do not included environmental cleanup costs or on-site cleanup costs."

The court discussed defined terms in the last phrase and held that it excluded coverage for the environmental clean up costs.

This is not the end of it, however. Stay tuned . . .