Edited by John R. Crawford & Lauren E. Nuffort
The Minnesota Insurance Law Deskbook is the authoritative resource on Minnesota insurance coverage issues. It addresses general issues such as rules of construction, duties of insured, and ethical considerations; and specific insurance coverages such as homeowners insurance, commercial general liability insurance, professional liability insurance, workers’ compensation insurance, and cyber insurance. Although the emphasis is on Minnesota law, authors have referred to commentators or seminal cases from other jurisdictions, either as additional background or as authority on an issue not yet addressed by Minnesota courts. With dozens of practice tips, comments, and example boxes with standard policy language pull-quotes – not to mention the subject index, table of authorities, and chapter tabs – the Deskbook is as practical and easy to navigate as it is comprehensive.
2023 UPDATE
Every chapter has been thoroughly reviewed and updated to ensure its accuracy. The Update includes revisions to 25 of the Deskbook’s 26 chapters and a fully updated Table of Authorities. The Update also includes relevant discussions on new developments in the areas of first-party bad faith, duties of insured, coverage issues for government-mandated business shutdowns, cyber-insurance and data breaches, and so much more!
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VOLUME 1
CHAPTER 1
Policy Interpretation and the Rules of Construction
Introduction; Burden of Proof; Interpreting an Unambiguous Contract; Interpreting an Ambiguous Contract; Reconstructing Lost or Missing Insurance Policies
– Skip Durocher & Mike Norton
CHAPTER 2
Reservation of Rights and Denials of Coverage
Introduction; Insurer’s Statutory Duties Upon Receipt of Claim; Violations of the Unfair Claims Practices Act; Purpose and Necessity of the Reservation of Rights Letter or Non-Waiver Agreement; Contents of the Reservation of Rights Letter; Effect of an Erroneous Reservation of Rights Letter; Denials of Coverage; Contents of the Denial of Coverage Letter; Effect of the Reservation of Rights or Denial of Coverage on the Obligations of the Insured and Insurer; Waiver and Estoppel; Appendix A – Sample Reservation of Rights Letter; Appendix B – Sample Non-Waiver Agreement; Appendix C – Sample Denial of Coverage Letter
– Anthony J. Kane & Jessica K. Allen
CHAPTER 3
Misrepresentation or Omission in Applications for Insurance
Introduction; Common Subjects of Misrepresentation in Insurance Applications; Misrepresentation by Applicant: Minnesota Statutes section 60A.08, subdivision 9; CIVJIG 59.25: Misrepresentation – Application for Insurance; Life Insurance; Risk of Loss; Timing of Misrepresentation; Burden of Proof – Question of Fact or Law; Misrepresentation as Affecting the Rights of Third Parties; The Agent’s Role; Attempting to Insure a Known Loss; Misrepresentation in Applications Concerning Potential for Future Claims; Incontestability Clauses in Life Insurance Policies; Effect of Renewal on Misrepresentation or Concealment in the Original Application; Estoppel/Waiver/Inconsistent Act; Misrepresentation in Making a Claim
– Lauren E. Nuffort
CHAPTER 4
Bad Faith and Wrongful Refusal to Settle: Liability in Excess of Policy Limits
Introduction to First-Party and Third-Party Bad Faith Claims in Minnesota; The Basics of Minnesota’s First-Party Bad Faith Statute, Minnesota Statutes Section 604.18; Unresolved Questions Surrounding Minnesota Statutes Section 604.18; Third-Party Bad Faith Claims Related to an Insurer’s Bad Faith Refusal to Settle; Standards for Determining “Bad Faith” and Wrongful Refusals to Settle; Issues Related to Bad Faith and Wrongful Refusal to Settle
– Jeffrey R. Mulder, Janine M. Loetscher & Beth A. Jenson Prouty
CHAPTER 5
Duties of Insured
Introduction; Duty to Provide Notice of Claim; Duty to Cooperate; Duty to Provide a Statement; Duty to Be Truthful and Forthcoming; Duty Not to Make Payments/Assume Obligations; Duty Not to Destroy Subrogation and Recovery Rights; Duty to Attend Trial; Release of Insured’s Duties; Conclusion
– Elizabeth J. Roff
CHAPTER 6
Duty to Defend
Basis of Duty; Burden of Proving Duty to Defend; Basis for Determining Whether Duty to Defend Exists; Collateral Estoppel; When Can or Should Determination of Defense Duties Be Made?; Necessity of Tender; Scope of Duty to Defend; Duty to Defend is Broader Than the Duty to Indemnify; Right to Select Counsel and Control Litigation; Damages Recoverable for Breach of Duty to Defend; Apportionment of Defense Costs Between Covered and Non-Covered Claims; Defense Obligations in the Context of Multiple Insurers and Self-Insured Retention; Insolvent Insurers and Insurance Gaps
– John R. Crawford
CHAPTER 7
Priorities of Coverage
Introduction; Historical Background; The Closeness to the Risk Test; The Total Policy Insuring Intent Test; Automobile Liability Policies; First-Party Automobile Insurance Claims; Specialty Insurance Cases; Trucking Cases; Fire Insurance Cases; Continuous Injury Cases; Conclusion and Recommendations
– R. Stephen Tillitt & Jack F. Edell
CHAPTER 8
Excess Insurance
Introduction; Following-Form Excess Insurance; Duty to Defend Between Primary and Excess Insurers; Primary Insurer’s Right to Settle and Withdraw from Case – Enforceability of Drake and Loy Releases; Does an Excess Insurer Have an Obligation to Contribute to a Settlement Before Primary Limits Have Been Exhausted?; Settlement by Excess Insurer Over Objection of Primary Insurer; Excess Insurer’s Rights Against Primary Insurer for Wrongful Refusal to Settle; Insolvency or Bankruptcy of Primary Insurer – Drop-Down Coverage; Excess Insurance Coverage and the No-Fault Act; Payment of Insured’s Defense Costs, in Addition to Payment of Policy Limits
– Matthew J. Barber
CHAPTER 9
Insurability of Punitive Damages
Introduction; Minnesota Law Governing the Award of Punitive Damages; Insuring Language and the Intended/Expected Exclusions; The Minority and Majority Rules Applicable to Coverage for Punitive Damages; The Rule in Minnesota and its Exceptions; The Importance of Choice of Law; Bad-Faith Refusal to Settle; Settlement Considerations; Conclusion
– Christopher H. Yetka & Sarah D. Greening
CHAPTER 10
Fire and Property Insurance
Minnesota Standard Fire Insurance Policy: Substantive Coverages; Minnesota Standard Fire Insurance Policy: Procedural Requirements
– Lauren E. Nuffort
CHAPTER 11
Homeowners Insurance
Introduction; Types of Coverage Provided by Homeowners Policy; Liability Protection; Exclusions; Specific Areas of Coverage Interest
– Jenneane L. Jansen & Kris E. Palmer
CHAPTER 12
Minnesota Courts’ Interpretation of “Occurrence” and “Property Damage” Issues
History of “Occurrence” and “Property Damage” in Comprehensive General Liability Policies in Minnesota; Minnesota Courts’ Interpretation of an “Occurrence” as that Term is Used in Standard CGL Policies; The Definition of an “Accident” as an Element of an Occurrence; To Qualify as an Occurrence, An Accident Must Take Place Within the Policy Period and Result in Property Damage or Bodily Injury; To Qualify as an Occurrence, Property Damage or Bodily Injury Resulting from an Accident Must Be Neither Expected Nor Intended; Intentional Acts Exclusions in Minnesota; Defining an “Intentional Act” Under “Normal” Circumstances; Intentional Act Inferred as a Matter of Law; Exceptions to Intentional Acts Exclusion – Cases of Mental Illness and Reflexive or Impulsive, Defensive Reactions; Applicability of Intentional Acts Exclusion by Acts of Agent of Corporation to Corporate Insured
– William P. Harrie
CHAPTER 13
Personal and Advertising Injury
Introduction; Brief History of Personal and Advertising Injury Coverage; Policy Provisions; Advertising Injury Coverage; Personal Injury Coverage; Personal and Advertising Injury Exclusions; Conclusion
– Paula Weseman Theisen
CHAPTER 14
Select Commercial General Liability Policy Exclusions
Introduction; The Care, Custody or Control Exclusion; The Owned Property Exclusion; The Contractual Liability Exclusion; The Insured’s Work Exclusion; The Insured’s Products Exclusion; The “Sister Ship” and “Product Recall” Exclusions; Other Exclusions
– Kay Nord Hunt & Michelle K. Kuhl
CHAPTER 15
Automobile Liability Coverage
Requirement of Automobile Liability Coverage; Who Is an Owner for Purposes of Liability Coverage; Who Is Insured Under the Liability Coverage; What Vehicles Are Covered Under Liability Coverage; Exclusions from Coverage; Overlapping Coverages; Factors Triggering Reduction or Cancellation of Liability Coverage
– Wilbur W. Fluegel
CHAPTER 16
Uninsured Motorist and Underinsured Motorist Coverage
History of Uninsured Motorist Statutes; Overview: Prerequisites for a UM Claim; What Is an Uninsured Motor Vehicle?; Identifying the UM Coverage; Limitations on UM Coverage; Asserting UM Claims; Asserting UM Claims: Multiple Defendants; Amount of UM Recovery; Statute of Limitations for UM Claims; Other Issues; UIM Statutory Background; What Is an Underinsured Motor Vehicle?; Exclusions; UIM Priorities: Which Company Pays?; The Amount of UIM Coverage; First Step in UIM Claim: Resolve the Liability Claim; Options if UIM Insurer Substitutes Draft; Amount of UIM Claim; Multiple Parties; UIM Insurer’s Right of Recovery; Statute of Limitations; Effect of UIM Payment on Subsequent No-Fault Claims
– Peter M. Lindberg
VOLUME 2
CHAPTER 17
Commercial Trucking Insurance
Introduction; Interplay Between Federal and State Law; The MCS-90 Endorsement; Cancellation and Replacement of Policies; Coverage Issues Arising from Commercial Vehicle Leases; No-Fault Issues; Indemnity Under Minnesota No-Fault; Non-Trucking Use Coverage; Coverage on Semi-Trailers; Primary/Excess Issues; Anti-Indemnity Statute in Minnesota
– Rachel Beauchamp & Tamara L. Novotny
CHAPTER 18
Workers’ Compensation
Introduction to Workers’ Compensation; Compensable Injuries; Legal Requirements for Compensability; Duty to Insure; Covered Employee/Excluded Employments; Benefits Overview; Procedural Overview; Civil Actions Involving Workers’ Compensation
– Timothy P. Jung
CHAPTER 19
Professional Liability Claims-Made Coverage
Background; Enforcement of the Claims-Made Form; Enforcement of Specific Claims-Made Policy Provisions; Advantages of the Claims-Made Form
– Danielle Parry & Nathan Z. Heffernan
CHAPTER 20
Construction Litigation Coverage
Introduction; The CGL Policy Terms; Policy Analysis; Recapping Third-Party Liability Coverage; Trigger and Allocation; Contractual Indemnity Agreements and Insurance Coverage
– Janine M. Loetscher & Beth L. LaCanne
CHAPTER 21
Directors and Officers Liability Insurance
Introduction; Types of Coverage in D&O Liability Insurance Policies; The Insurer’s Defense Obligation; Claims Covered by D&O Liability Insurance Policies; Exclusions; Insurer’s Rights to Rescind Based Upon Material Misrepresentations and Omissions in the Application; Allocation of Settlement and Defense Costs; D&O Policies and/or Proceeds as Property of the Bankruptcy Estate; Tips for D&O Litigation
– Margo S. Brownell, Judah A. Druck & Bryan R. Freeman
CHAPTER 22
Agent and Broker Liability
Introduction; Agent, Broker, or Both; Scope of Authority; Liability of Agents and Brokers; Measure of Damages for Agent and Broker Liability
– Jason M. Hill & Heidi M. Torvik
CHAPTER 23
Cyber Insurance
Overview of Cyber Liability; Potential Sources of Insurance Recovery; Cyber Liability Insurance; Conclusion
– Bryan C. Keane
CHAPTER 24
Environmental
Summary of Potential Coverage from Liability Insurance Policies Under Minnesota Law; Bases for Environmental Liability; Comprehensive General Liability Insurance; Property Damage Liability Coverage; Personal Injury Liability Coverage; Defense Coverage; Insolvent Responsible Parties; Pollution Legal Liability Insurance
– Christopher L. Lynch
CHAPTER 25
Insurance Coverage for Employment Claims
The Coverage Analysis; Liability Insurance; Other Business Insurance Policies; Personal Lines Insurance Policies; Typical Employment Claims Analyzed; COVID-19 and Pandemic Changes in the Workplace and Employment Context
– Tessa McEllistrem
CHAPTER 26
Ethical Considerations
Introduction; One Client or Two; Conflict of Interest Issues; Amendments to the Minnesota Rules of Professional Conduct; Conclusion
– Timothy M. Burke
Table of Authorities
Subject Index
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