Patent Law

I just received my print issue of the July/August 2009 issue of Coverage (newsletter of the Committee on Insurance Coverage Litigation of the Section of Litigation of the American Bar Association).  The above-titled article by David A. Gauntlett includes the following:

Three distinct approaches are implicated in determining what the facts are for purposes of insurance coverage analysis: the ??complaint allegations,?? ??facts known to the insurer,?? or ??facts available to the insurer?? rules. Forum selection, which will require adoption of one rule over another, may be result-determinative in a coverage dispute where facts beyond the pleadings are essential to either establish or eviscerate potential coverage.

Insurers who cannot prove that no coverage arises in all possible worlds in light of the allegations of the complaint may properly be held to owe a defense duty. A prompt motion for partial summary judgment filed in conjunction with a complaint often causes insurers to cry ??foul,?? claiming they have had no time to analyze coverage, even though they have previously (and often repeatedly) denied a defense. Insurers who cannot make a showing under Rule 56(f) in light of the facts asserted in the insured?s motion are not entitled to a continuance before adjudication of defense issues. Plainly speaking, a party has no right to discovery prior to the hearing of a partial summary judgment motion but rather must make an affirmative showing that the requested discovery will provide facts necessary to defeat the motion. ??[The] nonmovant may not simply rely on vague assertions that discovery will produce needed, but unspecified, facts.??

The full article is available (to members) here.