1ST CIRCUIT COURT OF APPEALS

Desrosiers v. Hartford Life & Accident Ins. Co., No. 06-2609
In a suit by a federal employee challenging defendant's denial of her claim for long-term disability benefits, summary judgment for defendant is affirmed where: 1) the district court did not abuse its discretion in relying on an affidavit submitted with defendant's summary judgment reply, thus it correctly ruled that plaintiff's original complaint was preempted by ERISA; and 2) the defendant did not abuse its discretion by failing to consider plaintiff's job description until the appeal process or by improperly relying on a lack of objective evidence.

Picciotto v. Cont'l Cas. Co., No. 06-2685
In a suit against an attorney's malpractice insurers, dismissal for failure to join a necessary and indispensable party who would destroy diversity jurisdiction is affirmed where the district court did not abuse its discretion in determining that the party was necessary and indispensable, and the supplemental jurisdiction statute did not render the party's inclusion feasible since the presence of a non-diverse party destroyed the court's original jurisdiction.

Shearer v. S.W. Serv. Life Ins. Co., No. 07-20646
In a dispute involving payment of a claim under a health insurance policy, summary judgment for defendant finding that plaintiff's claims failed to meet the ERISA standard for relief is vacated where, since plaintiff's employer did no more than pay the premiums on the policy and ERISA does not regulate the "bare purchase of insurance," plaintiff's claims were not preempted by ERISA, and the district court lacked jurisdiction over the case.

2ND CIRCUIT COURT OF APPEALS

Benesowitz v. Metropolitan Life Ins. Co., No. 05-6382
Dismissal of plaintiff's claim for long-term disability benefits is vacated as New York Insurance Law section 3234(a)(2) allows insurers to toll benefits during the first [twelve] months of coverage, but does not permit them to impose an absolute bar to coverage for disabilities stemming from preexisting conditions and arising during that twelve-month period.

Briggs Ave., LLC v. Ins. Corp. of Hannover, No. 06-3231
Question is certified to the New York Court of Appeals as follows: "Upon all the facts of this case, given the terms of the insurance policy and the reason for the insured's failure to give more prompt notice of the lawsuit to the insurer, should the insurer's disclaimer of coverage be sustained?"

Camarillo v. Carrols Corp., No. 06-4909
In ADA suit brought by blind plaintiff against several fast food restaurants for failing to effectively communicate to her their menu selections, dismissal for lack of standing is vacated where plaintiff's complaint sufficiently alleges that defendants' restaurants did not ensure effective communication of their menu items.

In re Johns-Manville Corp., No. 06-2099
Order of district court affirming in part and vacating in part the determination of the bankruptcy court regarding an objector's motions for approval of certain settlement agreements and for entry of a Clarifying Order, is reversed as the bankruptcy court erred insofar as it enjoined suits that, as a matter of state law, are predicated upon an independent duty owed by objector to the appellants, that do not claim against the res of debtor's estate, and that seek damages in excess of and unrelated to debtor's insurance policy proceeds.

4TH CIRCUIT COURT OF APPEALS

Blackshear v. Reliance Standard Life Ins. Co., No. 06-2126
In suit involving claim for benefits under a group life insurance policy, summary judgment for defendant-insurer is reversed as: 1) defendant cannot deprive plaintiff of vested benefits based on the waiting period in the amended policy and, thus, its application of the "clerical errors" provision to arrive at such a result was an abuse of discretion; and 2) equitable reformation is not appropriate.

Horace Mann Ins. Co. v. Gen. Star Nat'l Ins. Co., No. 06-2156
In excess insurance coverage dispute between insurers arising from underlying case involving a student who was sexually abused by a teacher, summary judgment for plaintiff finding that its policy was excess to defendant's policy is reversed as defendant's policy is actually excess to plaintiff's. Defendant's policy is a true excess policy, while plaintiff's provides primary coverage that sometimes becomes excess.

Ohio River Valley Envtl. Coalition, Inc. v. Green Valley Coal Co., No. 06-1475
Award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act is affirmed as to the preliminary injunction phase of the litigation, however, fees awarded for the supplemental claims phase is vacated as that award includes fees for plaintiffs' efforts in the administrative arena, which are not recoverable under 30 U.S.C. section 1270(d).

Weinberger v. Tucker, No. 06-2302
In suit against former lawyer for fraud, breach of fiduciary duty, and professional negligence, district court's dismissal is affirmed where Virginia's doctrine of collateral estoppel bars any attempt by plaintiff to repackage the claims rejected in the underlying case as claims against defendant.

5TH CIRCUIT COURT OF APPEALS

Campbell v. Stone Ins. Inc., No. 07-30206
In an action brought against an insurance agent that procured plaintiffs' renters' insurance policy, dismissal of the suit is affirmed where plaintiffs had no viable causes of action under Louisiana law against defendant because they had at least constructive knowledge of alleged misrepresentations more than one year before they filed their suit.

Carrizales v. State Farm Lloyds, No. 06-40286
In a dispute over coverage under plaintiffs' homeowners insurance policy with defendant for mold contamination resulting from a plumbing leak, summary judgment for defendant-insurer is reversed in part and remanded for a new trial where a failure to mitigate damages is an offset to recovery under a generic homeowners policy, and the district court erred and abused its discretion when it instructed the jury that mitigation was a condition precedent to recovery.

Citibank Texas, N.A. v. Progressive Cas. Ins. Co., No. 07-10142
In a suit brought by Citibank against Progressive insurance as the issuer of a fidelity bond, claiming it should cover a loss Citibank sustained in a prior state court action filed against it by a depositor on a claim of unauthorized endorsement, summary judgment for Citibank on its breach of contract claim is affirmed where the district court correctly found that Progressive was bound by a state court's determination of Citibank's liability to its depositor for the amount of the post-judgment settlement reached between the bank and its depositor.

Liberty Mut. Ins. Co. v. Mid-Continent Ins. Co., No. 03-10705
In a suit between two liability insurers in which plaintiff-Liberty Mutual sought to recover from defendant a portion of the sums it paid to settle a third party claim against a covered insured, a judgment awarding plaintiff the proportionate part of a $1.5 million settlement is reversed pursuant to an answer to a question certified to the Supreme Court of Texas.

Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., No. 06-61084
In an insurance case primarily involving the issue of whether a policy provided coverage for a slander of title claim, a judgment finding that the policy did not provide such coverage and that the insurer had no duty to defend the insured against any such claim is affirmed where: 1) the allegations in a complaint did not trigger coverage under the policy; and 2) the insurer did not know of facts and could not have reasonably ascertained facts that would have triggered coverage under the policy.

O'Hara v. Gen. Motors Corp., No. 06-10498
In an action brought by parents against GM for injuries sustained by their daughter when she was partially ejected from a 2004 Chevrolet Tahoe during a rollover accident, summary judgment for GM is affirmed in part, but reversed in part and remanded where: 1) Federal Motor Vehicle Safety Standard (FMVSS) 205 does not preempt a common law tort claim for failing to use advanced glazing in the side windows of the Tahoe; 2) marketing and failure-to-warn claims were also not preempted; and 3) the claim that the Tahoe failed to comply with FMVSS 205 was adequately alleged in plaintiffs' expert report.

Shearer v. S.W. Serv. Life Ins. Co., No. 07-20646
In a dispute involving payment of a claim under a health insurance policy, summary judgment for defendant finding that plaintiff's claims failed to meet the ERISA standard for relief is vacated where, since plaintiff's employer did no more than pay the premiums on the policy and ERISA does not regulate the "bare purchase of insurance," plaintiff's claims were not preempted by ERISA, and the district court lacked jurisdiction over the case.

Sonnier v. State Farm Mut. Auto Ins. Co., No. 07-30098
In an action brought against defendant-insurer alleging it breached its contractual obligation under plaintiffs' automobile insurance policies when it refused to pay for inspection and testing of their seatbelts and seatbelt locking mechanisms after they were involved in automobile accidents, dismissal for failure to state a claim upon which relief can be granted is affirmed over a claim that the term "cost of repair" necessarily includes the cost of a seatbelt inspection.

XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., No. 06-41785
A declaratory judgment ruling that plaintiff-insurance company had a duty to defend and indemnify defendant-general contractor in an underlying state wrongful death suit is affirmed where: 1) under Texas precedent, the language in an indemnity provision satisfied the requirement that a contract must unambiguously state a party's intent to indemnify the indemnitee for all liability caused by the indemnitee's own future negligence; and 2) a challenge to the reasonableness of the settlement is rejected.

6TH CIRCUIT COURT OF APPEALS

Am. Zurich Ins. Co. v. Cooper Tire & Rubber Co., No. 07-3097
In an action involving coverage for product liability claims against defendant-tire company, dismissal of third-party complaint filed by an defendant against its insurance broker is affirmed where there was no abuse of discretion in the dismissal in light of a settlement and dismissal of the underlying action from which defendant's third-party complaint derived.

Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., No. 06-3767, 06-4190, 06-4301, 06-4492
In a dispute over an insurer's obligations, which arose within part of multidistrict litigation resulting out of the collapse of plaintiff-bankruptcy debtor's equipment leasing business in what was alleged to have been a Ponzi-type scheme, an order granting a 12(c) motion in favor of banks and against the insurer with respect to liability is affirmed. However, the award of damages is reversed and remanded as the insurer's liability as surety should not exceed the principal obligation due to a bank as the intended obligee.

Liberty Life Assurance Co. v. Gilbert, No. 06-6068, 06-6078, 06-6079
In life insurance companies' interpleader and declaratory relief action brought to determine who was due annuity payments originally received by a decedent, summary judgment for decedent's daughter is affirmed where: 1) the district court properly found that a separation agreement between decedent and his ex-wife was not an assignment of his right to receive periodic payments under a settlement agreement and that the annuity payments were exempt from the ex-wife's garnishment action under Virginia law; 2) the district court properly found that a transaction between decedent and a loan company was legally invalid and against the public policy of Virginia; 3) there was no abuse of discretion in deciding the equities did not weigh in favor of specifically enforcing the transaction; and 4) thus, decedent's daughter was entitled to the annuity payments as the named beneficiary.

Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd., No. 06-1199
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied.

Schultz v. Gen. R.V. Ctr., No. 06-2322
In an action alleging that plaintiffs' new R.V. was defective in violation of federal and state consumer laws, defendant's motion to dismiss plaintiff's appeal is denied as: 1) simply offering the N.A.D.A. value of a fully-functional R.V. is insufficient to establish to a legal certainty that plaintiffs could not obtain at least $50,000 in damages were they to prevail on their claims against defendants; and 2) thus, federal subject matter jurisdiction exists under the Magnuson-Moss Warranty Act (MMWA). However, summary judgment for defendants is affirmed on the merits.

7TH CIRCUIT COURT OF APPEALS

Edstrom Indus., Inc. v. Companion Life Ins. Co., No. 07-2165
In a challenge to an arbitrator's decision in favor of an insurance company in a dispute over the insurer's alteration of the policy, district court order affirming the arbitration award is reversed and remanded where: 1) a choice of law provision in an arbitration clause can designate the governing substantive norms for the arbitration; and 2) the arbitrator's omission of any discussion about a Wisconsin misrepresentation statute violated the arbitration clause's directive that he "strictly" apply Wisconsin law.

Indiana Lumbermens Mut. Ins. Co. v. Reinsurance Results, Inc., No. 07-1823
In a declaratory breach of contract action brought by an insurance company against a reinsurance service provider, summary judgment for plaintiff is affirmed where the defendant's accounting advice to plaintiff did not fall under the description of compensable services listed in the contract between the parties, and recovery was not possible under quasi-contractual theories.

Johnson v. Dossey, No. 06-2950
In a suit under 42 U.S.C. section 1983 and state tort law alleging false imprisonment, malicious prosecution, and conspiracy against multiple public and private persons and entities after plaintiff was acquitted of arson charges subsequent to the release of previously undisclosed information, dismissal of the complaint is reversed and remanded where: 1) the complaint sufficiently alleged a Brady violation; 2) the statute of limitations for plaintiff's claim based on the Brady violation began upon her release from prison, thus the complaint was timely; 3) the conspiracy allegations against private individuals were sufficient to subject them to a section 1983 action; 4) claims against corporate entities were aimed directly at the corporations, and were not based solely on vicarious liability; 5) an assistant state attorney did not have absolute immunity from suit; and 6) plaintiff's state-law claims were not time-barred.

Levy v. Minnesota Life Ins. Co., No. 07-1006
In a dispute over disability insurance coverage, summary judgment in favor of defendant-insurer is affirmed where the illness resulting from a past injury suffered by plaintiff was the proximate cause of his disability, rather than the injury itself, which limited the amount of his recovery under the terms of the policy.

Med. Protective Co. v. Kim, No. 05-2038, 05-2416
In an insurance-coverage dispute involving back-to-back claims-made medical malpractice liability policies issued by two different insurers, a judgment awarding breach of contract damages and statutory penalties to the insured doctor is affirmed with the exception of the statutory penalties, which was improper because an insurer's conduct is not considered vexatious and unreasonable under the Illinois statute at issue if there is a bona fide dispute about coverage.

Plastics Eng'g Co. v. Liberty Mut. Ins. Co., No. 06-4397
In a suit concerning the defense and indemnity obligations of an insurance company with respect to asbestos lawsuits against the insured, the circuit court stays the appeal and certifies the following questions to the Wisconsin Supreme Court: 1) what constitutes an "occurrence" in an insurance contract when exposure injuries are sustained by numerous individuals, at varying geographical locations, over many years; 2) whether Wisconsin Statute section 631.43(1) applies to successive insurance policies; and 3) whether Wisconsin courts would adopt an "all sums" or pro rata allocation approach to determining liability when an injury spans multiple, successive insurance policies.

Roe-Midgett v. CC Servs., Inc., No. 06-3195
In a suit for overtime wages under the Fair Labor Standards Act, summary judgment for defendant is affirmed where the plaintiffs' duties as claims adjusters directly related to defendant's business operations and reflected a sufficient degree of discretion and independent judgment to qualify for the FLSA’s administrative exemption.

Wausau Underwriters v. United Plastics Group, Inc., No. 06-3790
In a suit involving issues of excess liability insurance coverage for a manufacturer of water heater components, judgment for defendant-manufacturer is reversed and remanded in order to determine: 1) what proportion of the business losses attributable to property damage resulting from the failure of defendant's component was covered by the intervenor's policy; and 2) what level of damage defendant expected to occur as a result of its knowing misrepresentation of the quality of its components.

8TH CIRCUIT COURT OF APPEALS

Am. Fed'n of State, County & Muni. Employees v. City of Benton, No. 07-1589
In a union's suit against defendants-city and officials to enjoin the city to continue paying retiree health insurance premiums, grant of plaintiffs' motion for judgment on the pleadings and an order to pay certain premiums is affirmed where: 1) the district court correctly determined that certain resolutions were unconstitutional under the Contract Clause; 2) there was no abuse of discretion in denying a motion to amend the pleadings; and 3) the district court correctly determined the remedy in the case.

Aten v. Scottsdale Ins. Co., No. 06-3966
In an insurance coverage dispute, grant of defendant-insurer's motion to dismiss is reversed and remanded for further proceedings regarding whether an exception to a policy exclusion applied. Specifically, plaintiff should be allowed to conduct limited discovery regarding whether subcontractors poured or leveled a basement floor or performed the work which suffered water damage as a result of the improperly graded basement floor.

CADDO VALLEY R.R. CO. V. SURFACE TRANSP. BD.
In a case involving a rail carrier that acquired a railroad line through a forced sale pursuant to 49 U.S.C. section 10907, petition for review of a Surface Transportation Board decision finding that a statutory first-refusal provision applied to a particular transaction is denied where the Board did not err in determining that a proposed sale of 100% of the corporation's stock would trigger the right of first refusal set out in 49 U.S.C. Sec. 10907(h).

Clifton v. Am. Family Mut. Ins. Co., No. 06-3571
In a breach of contract suit against an insurer and affiliates involving defendant's termination of a contract which permitted plaintiff, as an independent contractor, to operate an insurance agency, summary judgment for defendants is affirmed where, under the provisions of the parties' contract, defendant was able to terminate plaintiff's agency for "undesirable performance," and defendant provided plaintiff with sufficient notice under the contract.

Corn Plus Coop. v. Continental Cas. Ins. Co., No. 07-1305
In a declaratory judgment action brought to enforce a settlement plaintiff had reached with its mechanical contractor who was insured by defendants, summary judgment for defendants-insurers is affirmed over claims that: 1) the district court incorrectly ruled that certain policy exclusions barred coverage for welding repairs and consequential loss of use of a facility; 2) the court erred in finding an agreement unreasonable and in refusing to enforce its addendum; and 3) plaintiff's underlying litigation against the insured should be reinstated if the rulings are upheld.

Hamilton v. Standard Ins. Co., No. 07-1168
In an action brought against an insurer arising from its reduction of the amount of death benefits paid to plaintiff under a policy covering her deceased husband based on a suicide exclusion clause, summary judgment for insurer is affirmed where: 1) a Missouri statute barring suicide defenses for certain insurance policies did not apply because the policy was issued to a non-Missouri citizen in Idaho; and 2) a claim for other benefits also failed.

Lundstrom v. Maguire Tank, Inc., No. 07-1294
In a personal injury action brought by an individual injured on a job site operated by defendant-general contractor, summary judgment based on a conclusion as a matter of law that plaintiff was a loaned servant of defendant is reversed as: 1) defendant was not entitled to judgment as a matter of law that plaintiff made an implied contract for hire with defendant; 2) it was error to find as a matter of law that plaintiff was doing defendant's work; and 3) no evidence suggested defendant had the right to control the details of plaintiff's work.

PHELPS-ROPER V. NIXON
A federal court held that a request for preliminary injunction while the constitutionality of a Missouri statute criminalizing picketing at funerals is reviewed, should be granted, since: 1) the plaintiff has a fair of proving that her First Amendment right to free speech outweighs the state's interest in protecting funeral mourners from it; 2) plaintiff has a fair chance of prevailing on the merits of her claim; and 3) she also has a fair chance of proving that section fails to afford other opportunities to disseminate her particular message that God is punishing America for allowing homosexuality by killing Americans, including soldiers.

Powell v. TPI Petroleum, Inc., No. 07-1009
In a breach of contract case arising from defendant's removal of four underground storage tanks from realty it leased from plaintiff, a judgment against defendant is affirmed in part with respect to the issue of breach, but reversed in part and remanded for a new trial on damages pursuant to defendant's challenge to the sufficiency of the evidence supporting claims for compensatory and consequential damages.

Pritchett v. Cottrell, Inc., No. 06-3459, 06-3477, 06-3665
In products-liability actions for injuries that plaintiffs sustained while operating a ratchet system designed by defendant, denial of plaintiffs' motions to remand the case and summary judgment for defendant is affirmed in part and reversed in part where: 1) the district court properly exercised removal jurisdiction and did not err in denying the motions to remand; 2) summary judgment for defendant on a ladder design defect claim was proper; but 3) plaintiffs presented evidence to create a material question of fact regarding whether their injuries were caused by an unreasonably dangerous design defect in the manual nature of the ratchet system.

Royal Indem. Co. v. Apex Oil Co., Inc., No. 06-3454, 06-3469
In an action seeking a declaration of the rights and obligations of plaintiff-insurer, other insurance companies and an oil company, under various insurance policies issued to the oil company, a decision abstaining from the lawsuit and dismissing the case is affirmed in part and vacated in part where: 1) the district court correctly determined that the Wilton and Brillhart abstention standard applied because the essence of this lawsuit was one for declaratory judgment; 2) the district court did not abuse its discretion in applying such standard and deciding to abstain; but 3) the dismissal of the case is vacated as a stay of the proceedings should have been ordered.

Transcontinental Ins. Co. v. Rainwater Constr. Co., LLC, No. 07-1011, 07-1394, 07-1448
An award of attorney's fees in a coverage dispute is reversed where the insured released its attorney's fees claim against the insurer via a settlement agreement in the matter.

Union Pac. R.R. Co. v. Minn. Dep't of Revenue, No. 06-3397
In railroads' action claiming that Minnesota's statutory scheme for assessing a sales or use tax on transportation fuel discriminates against railroads in violation of section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, summary judgment for the state is reversed where: 1) the decision in Burlington N. and Santa Fe Ry. Co. v. Lohman, 193 F.3d 984, 985 (8th Cir. 1999), precludes the district court from considering the excise tax the motor carriers and airlines pay on fuel in making its determination, and it should have confined its analysis to only the sales and use taxes on transportation fuel; and 2) the district court erred when it determined that, because barges and ships pay the same sales and use taxes on fuel as the railroads, Minnesota's taxing scheme is not discriminatory, despite the fact that motor carriers and air carriers do not pay them.

9TH CIRCUIT COURT OF APPEALS

Bank of New York v. Fremont Gen. Corp., No. 05-56653
In a case arising from a commercial bank deposit contract involving an account in which funds were held to secure the payment of claims in the highly regulated world of workers' compensation insurance, rulings against the Bank of New York in its suit against insurers are affirmed in part as to a conversion claim, but reversed in part and remanded as to an intentional interference with contract claim.

Bates v. United Parcel Serv., Inc., No. 04-17295
In an action brought by a class of hearing-impaired UPS employees and applicants who cannot meet a Department of Transportation hearing requirement, challenging UPS's use of such standard under the Americans with Disabilities Act and state law, a judgment against UPS and an injunction against it are vacated in part, and reversed in part where: 1) the pattern-or-practice burden-shifting framework of International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), was inapplicable to this case; 2) certain circuit precedent is overruled to the extent it imposed a "bona fide occupational qualification" standard under the ADA; and 3) a finding that UPS violated the Unruh Act is reversed pursuant to Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006). (En banc opinion)

Bering Strait Citizens for Responsible Res. Dev. v. US Army Corps of Eng'rs, No. 07-35506
In an appeal involving a permit issued to Defendant-gold mining company by defendant-Army Corps of Engineers for a major gold-mining project in Alaska, denial of plaintiffs' motion for injunctive relief and dismissal of the suit on summary judgment is affirmed where the Corps complied with the requirements of the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA).

Center for Biological Diversity v. Lohn, No. 05-35638
In a dispute over whether the federal government's policy for listing killer whales under the Endangered Species Act is invalid, a district court order is vacated where the case was moot because, since the district court's decision, the National Marine Fisheries Service issued a proposed rule that recommended listing the whale as a threatened species and ultimately issued a final rule listing it as an endangered species. (Superceding opinion)

CENTER FOR BIOLOGICAL DIVERSITY V. NAT'L HIGHWAY TRAFFIC SAFETY ADMIN.
A federal appeals court orders the NHTSA to set new Average Fuel Economy Standards for many SUVs, mini-vans, and pickup trucks "as quickly as possible," along with a full Environmental Impact Statement, finding that the agency's current Final Rule on fuel standards "is arbitrary and capricious," and contrary to the Energy Policy and Conservation Act.

Certain Underwriters at Lloyds London v. Inlet Fisheries Inc., No. 06-35383
The doctrine of uberrimae fidei, in which both parties are held to the highest standard of good faith in the transaction, applies to vessel pollution insurance policies covering statutory environmental liabilities.

Cornhusker Cas. Ins. Co. v. Kachman, No. 06-35106
In an insurer's declaratory judgment action involving coverage for an accident that resulted in the death of defendant's wife, an appeal from summary judgment for insurer, which held that it effectively cancelled its policy insuring the company responsible for her fatal injuries before the accident, is stayed pending resolution of a certified question. The court does the find that the issue of statutory interpretation raised by defendant has not been waived, and that the insurer is not equitably estopped from asserting its contrary theory of statutory interpretation.

Edo v. GEICO Cas. Co., No. 04-35279
In an action involving claims against insurers under the Fair Credit Reporting Act (FCRA), summary judgment for insurers is affirmed in light of the Supreme Court's rulings in Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201 (2007). (Opinion on remand from the Supreme Court)

Fin. Mgmt. Advisors, LLC v. Am. Int'l Specialty Lines Ins. Co., No. 06-55001
In an action brought by a firm that provides investment advice and portfolio management services involving coverage for certain lawsuits under a policy issued by defendant-insurer, summary judgment for insurer is reversed and remanded where the district court erred in holding that certain claims were "related" within the meaning of the insurer's insurance policies.

Golden Gate Restaurant Assoc. v. City and County of San Francisco 
Judge lets San Francisco enforce new health insurance law aginst employers.                

Goodstein v. Continental Cas. Co., No. 05-35805
In an insurance coverage dispute involving two properties which were identified as contaminated by the State of Washington, that were sold in their polluted state rather than remediated, summary judgment for the insurer is affirmed in part and reversed in part where: 1) the district court correctly held that a claim for the diminution in the sale value of the properties due to pollution was not covered under defendant's policy; but 2) insurer failed to establish that it was prejudiced as a matter of law by plaintiff's late notice of a claim, for purposes of summary judgment on a duty to defend claim.

Oak Harbor Freight Lines, Inc. v. Sears Roebuck & Co., No. 06-35460
In a motor carrier's suit against defendants-Sears and broker to recover nearly half a million dollars for transportation of Sears' freight, a judgment holding Sears and broker jointly and severally liable for the charges at issue under Washington law, as well as awards of pre- and post-judgment interest, are affirmed where: 1) the district court correctly held defendant-Sears liable for the charges incurred by plaintiff in shipping Sears' freight; and 2) the district court correctly awarded prejudgment interest to plaintiff under Washington law.

Spano v. Safeco Corp., No. 04-35313
On remand from the Supreme Court, the district court's judgment is affirmed where plaintiffs-appellants did not raise on appeal any basis for liability other than the theory rejected by the Court.

STATE OF CALIFORNIA V. E.P.A.
California sued the U.S. Environmental Protection Agency, charging that the agency "wrongfully and illegally" blocked the state's tailpipe greenhouse gas emissions standards.

Trantina v. US, No. 05-16102
In a suit brought for a tax refund, summary judgment for the government is affirmed where, because plaintiff did not have any property rights that he could sell under the express terms of a contract to provide insurance services, termination payments made pursuant to the contract were properly characterized as ordinary income, as opposed to capital gains.

Willes v. State Farm Fire & Cas. Co., No. 03-35848
In an action involving claims against insurers under the Fair Credit Reporting Act (FCRA), summary judgment for insurers is affirmed in light of the Supreme Court's rulings in Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201 (2007). (Opinion on remand from the Supreme Court)

10TH CIRCUIT COURT OF APPEALS

Steadfast Ins. Co. v. Agric. Ins. Co., No. 06-5212
In a declaratory judgment action brought by the primary insurer for the Grand River Dam Authority (GRDA) involving coverage for underlying suits against the GRDA for damages related to a series of flood incidents, dismissal of primary and excess insurers' claims is affirmed as the GRDA is a state agency entitled to Eleventh Amendment immunity, and it has not waived its immunity.

Wilson v. Titan Indem. Co., No. 06-1431
In an action against defendant-insurer raising claims for reformation of plaintiff's automobile insurance policy, breach of contract, and common law and statutory bad faith, summary judgment for defendant is affirmed where: 1) although plaintiff had standing for his claim, on the merits, he was not entitled to any relief on his claim for reformation; and 2) his other claims depended on the reformation claim.

11TH CIRCUIT COURT OF APPEALS

Admin. Comm. for the Wal-Mart Stores, Inc. Assocs' Health & Welfare Plan v. Horton, No. 07-10012
In ERISA case where plaintiff sought to enforce the reimbursement provisions of an employee health and welfare plan, summary judgment for defendants is reversed as plaintiff properly seeks restitution of a specifically identifiable fund in possession of a defendant, cognizable under ERISA section 502(a)(3).

Garcia v. Federal Ins. Co., No. 05-14720
In insurance coverage suit alleging that defendant's homeowner's policy extended coverage to plaintiff as the insured's employee, dismissal of complaint is affirmed as the policy is not ambiguous, and coverage for additional insureds other than the named insured is limited to instances in which the additional insured is vicariously liable for acts of the named insured. Plaintiff was sued for her own negligence, not the insured's negligence, and is thus not covered under the policy.

Mega Life & Health Ins. Co. v. Pieniozek, No. 07-10539
In case involving life insurance policy, where insured allegedly overstated her income in the policy application, summary judgment for defendant on a rescission claim is vacated where there are genuine issues of fact as to whether plaintiff had a good faith underwriting policy which would have caused it to reject her application or limit coverage, had it had known the insured's true income. The district court properly determined that an "autopsy" was performed within the meaning of the policy's "accidental death and dismemberment" rider.

CALIFORNIA

Aerojet-General v. Commercial Union, No. C051124
In dispute over whether sums agreed to be paid as a settlement of litigation are subject to indemnification as "damages" under excess liability insurance policies, summary judgment for defendant insurers is affirmed as the insurers were not liable under the terms of their policies to indemnify plaintiff for its costs.

Alliant Ins. Servs., Inc. v. Gaddy, No. C055192
In case involving insurance brokerage business's purchase of a competing brokerage, preliminary injunction entered against former majority shareholder of competing brokerage prohibiting him carrying on a competing business in California is affirmed over claim that the geographic scope of the injunction is unlawful and should be limited to only four counties where plaintiff has construction clients.

American Cas. Co. of Reading, Pa. v. Miller, No. B192216
In case involving worker injured in public sewer system when a chemical was released into the sewer by a furniture stripping business, summary judgment for business's insurer based on a pollution exclusion clause in the policy is affirmed as the injured worker's injuries arose from an event commonly thought of as environmental pollution.

Belz v. Clarendon Am. Ins. Co., No. B193314
In case where homeowner in construction defect case obtained a default judgment against the contractor then brought action against the contractor's insurer for payment on the default judgment, summary judgment for insurer is reversed as: 1) where a default judgment results from a lack of notice by the insured, the insurer is liable on the judgment unless it suffered actual, substantial prejudice; and 2) the mere inability to investigate the claim thoroughly or to present a defense in the underlying suit does not satisfy the prejudice requirement.

Bernard v. State Farm Mut. Auto. Ins. Co. , No. C052566
In suit by plaintiff who had a longstanding insurance agency representing defendants' companies alleging intentional and negligent misrepresentation and bad faith resulting in plaintiff's constructive termination after he was injured in a car accident, summary judgment for defendants is affirmed as the agency agreement could be terminated at will, thereby precluding a contract-based cause of action for breach.

Boeing Co.v. Continental Cas. Co., No. B194996
Sustaining of demurrer is affirmed over plaintiff's claim that it was entitled to a defense by defendant insurer in an underlying action as it qualified as an additional insured under a commercial general liability policy issued by defendant. Plaintiff is incapable of alleging status as an additional insured.

CENTRAL VALLEY CHRYSLER-JEEP, INC. V. GOLDSTONE
(U.S. Dist. Ct., E.D. Calif., Dec. 12., 2007) - A federal judge rejected a challenge by automakers to California's new stringent tailpipe emissions regulations that require a 30 percent reduction in tailpipe greenhouse gas emissions between 2009 and 2016.

Communities for a Better Env't v. South Coast Air Quality Mgmt. Dist., No. B193500
In dispute over potential environmental impacts resulting from a project enabling real party to produce ultra low sulfur diesel, judgment against plaintiffs is reversed in part where defendant-district abused its discretion in issuing a negative declaration for the diesel fuel manufacturing project at issue as plaintiffs offered substantial evidence supporting a fair argument that the project's nitrogen dioxide emissions may have a significant effect on the environment.

De Bruyn v. Superior Ct. (Farmers Group, Inc.), No. B198622
In insurance coverage dispute arising from damage to home from overflowing toilet and subsequent mold contamination of home, petition for writ of mandate challenging sustaining of demurrer to one cause of action is denied. Since the policy at issue plainly and precisely communicated that mold damage is not covered even when it results from a covered sudden and accidental discharge of water, the insurer's denial of coverage does not violate Insurance Code section 530 or the efficient proximate cause doctrine.

Gilmer v. Ellington, No. B194605
In case arising from collision between a car and a motorcycle, where one of the defendants sued was in another car and had gestured to remaining defendant to proceed, order granting motion for judgment on the pleadings is affirmed over claim that the trial court erred as defendant's liability turned on a factual determination incapable of resolution by judgment on the pleadings

Lee v. Blue Shield of California, No. B190441
In a suit brought by a doctor against Blue Shield alleging that it, inter alia, wrongfully suspended him from its network of medical providers for alleged medical incompetency, a judgment dismissing plaintiff's action pursuant to demurrer is reversed where: 1) although the trial court correctly sustained the demurrer to contract and tort causes of action based on a failure to exhaust an administrative remedy; nevertheless, 2) it erred in sustaining the demurrer to a cause of action for declaratory relief, which should have been treated as a petition for writ of mandate.

State of California v. Farmers Group, Inc., No. B196455
In case involving defendants-insurers' handling of total vehicle loss claims, judgment on the pleadings for defendants is affirmed as Insurance Code section 1871.7 was not designed to prohibit fraud on the part of insurers, but rather to prohibit submission of fraudulent claims to insurers.

Stellar v. State Farm Gen. Ins. Co., No. B195728
In an insurance coverage dispute over whether defendant-insurer had a duty to defend plaintiffs in a defamation suit, summary judgment for defendant is affirmed as the undisputed evidence established that defendant owed no duty to defend plaintiffs under their homeowners policy.

Sumpter v. Matteson, No. B193915
In a personal injury action arising from a car accident, judgment for plaintiffs is affirmed over plaintiffs' claim that jury award of $13,317.91 in economic damages was insufficient as a matter of law and that punitive damages must be assessed against defendant as a matter of law.

Sycamore Ridge Apartments LLC v. Naumann, No. D047796
In malicious prosecution action, granting of one group of defendants' motion to strike under the anti-SLAPP law is reversed as plaintiff demonstrated a probability of prevailing on its malicious prosecution claim as to both groups of defendants.

TICCONI V. BLUE SHIELD OF CALIFORNIA LIFE & HEALTH INS. CO.
In a suit against plaintiff's health insurance provider defendant-Blue Shield under the Unfair Competition Law alleging it violated the Insurance Code by failing to attach his application to or endorse it on the insurance policy when issued, and later rescinding the policy on the ground he had made misrepresentations in that application, denial of plaintiff's motion to certify a class under Proposition 64 is reversed where the trial court relied on erroneous legal assumptions in ruling that the individual issues raised by the defenses of unclean hands and fraud predominated over the common issues pertaining to liability.

Village Northridge Homeowners Ass'n v. State Farm Fire & Cas. Co., No. B188718
After settlement between plaintiff-homeowners association and defendant-insurer of claims arising from the Northridge earthquake and new suit brought by plaintiff discovering that the policy limits were almost $7 million greater than defendant represented, sustaining of demurrer is reversed as the trial court erred in holding that plaintiff could not both keep the settlement monies and then not release the claims.

Zhou v. Unisource Worldwide, Inc., No. B191048
In personal injury action arising from a multi-vehicle accident, judgment for plaintiff is affirmed where, even though the trial court erred in excluding from evidence as settlement negotiations two letters written by plaintiff to an insurance company concerning a second motor vehicle accident in which he had been involved in subsequently, it is not reasonably probable defendants would have achieved a more favorable result in the absence of this error.

DISTRICT OF COLUMBIA

Auster v. Ghana Airways Ltd., No. 05-7141
In an action against defendants for airplane crash in Ghana, dismissal of suit against Republic of Ghana is affirmed as Article 17 of the Warsaw Convention does did not apply to the flight between cities in Ghana. Summary judgment for defendants is vacated as the entire case should be dismissed for lack of subject matter jurisdiction since defendants have sovereign immunity.

Barksdale v. Washington Metro. Transit Auth., No. 06-7193a
In a case alleging negligence for injuries sustained while riding a subway station escalator, order remanding case back to the Superior Court of the District of Columbia, from which it had been removed, is reversed as the district court lacks the power to remand a case for the convenience of counsel.

Essex Ins. Co. v. John Doe, No. 06-7163
In insurance coverage dispute arising out of child sexual assault at a children's residential facility, and facility's assignment of its rights under a liability policy to minor, declaratory judgment for plaintiff insurer is reversed in part as the minor is entitled to receive payment from plaintiff of up to the aggregate annual limit of the policy for sexual abuse claims. However, plaintiff may reduce the amount due the minor by the amount plaintiff spent on investigating and defending the minor's suit against the facility.

Public Citizen, Inc. v. Nat'l HighwayTraffic Safety Admin., No. 05-1188, 05-1294, 05-1391
Petition for review of Safety Standard 138 adopted by respondent, requiring new cars to have warning systems for tire under-inflation, is dismissed as petitioner lacks standing to challenge the safety standard.

STATE OF NEW JERSEY V. ENVIRONMENTAL PROTECTION AGENCY
Petitions for review, challenging rules removing coal- and oil-fired electric utility steam generating units (EGUs) from the list of sources whose emissions are regulated under section 112 of the Clean Air Act, setting performance standards for new coal-fired EGUs, and establishing total mercury emissions limits for new and existing coal-fired EGUs, are granted as: 1) the delisting was unlawful as the EPA failed to make specific findings under section 112(c)(9); and 2) since coal-fired EGUs are listed sources under section 112, regulation of existing coalfired EGUs' mercury emissions under section 111 is prohibited.

FLORDIA

Auto-Owners Ins. Co. v. Pozzi Window Co., No. SC06-779
A post-1986 standard form commercial general liability policy with "products-completed operations hazard" coverage, issued to a general contractor, does not provide coverage for the costs of repair or replacement of a subcontractor's defective work because the defective work itself does not constitute "property damage."

Continental Cas. Co. v. Ryan Inc. E., No. SC05-1935, SC05-1816
Florida Statutes section 627.428 authorizes an award of attorney's fees only to "the named or omnibus insured or named beneficiary" under an insurance policy and to other third parties who obtain coverage based on an assignment from an insured.

US Fire Ins. Co. v. J.S.U.B., Inc., No. SC05-1295
A post-1986 standard form commercial general liability (CGL) policy with "products-completed operations hazard" coverage, issued to a general contractor, provides coverage when a claim is made against the contractor for damage to the completed project caused by a subcontractor's defective work, unless a specific exclusion applies to bar coverage. Defective work performed by a subcontractor that causes damage to the contractor's completed project and is neither expected nor intended from the standpoint of the contractor can constitute "property damage" caused by an "occurrence" as those terms are defined in a standard form commercial general liability policy.

ILLINOIS

Bd. of Educ. of Township High Sch. Dist. No. 211 v. TIG Ins. Co., No. 1051732
In an action arising from plaintiff-school district's claim for coverage of its asbestos-related damages from defendant-insurer, summary judgment for insurer is affirmed where the trial court correctly held that plaintiff had breached its notice obligations to the insurer under the applicable policies.

Blackburn v. Illinois Cent. R.R. Co., No. 5060618
In claims arising under the Federal Employers' Liability Act resulting from alleged injuries due to exposure to asbestos, diesel exhaust, and other dangerous products, judgment for the plaintiffs is affirmed over multiple claims of error regarding jury instructions and computation of damages.

Buenz v. Frontline Transp. Co., No. 103562
In a personal injury action resulting from an automobile accident involving a tractor-trailer, order calling for trailer-owner COSCO to be indemnified by transport provider Frontline is affirmed where the equipment interchange agreement clearly provided for indemnification.

Cent. Illinois Pub. Serv. Co. v. Agric. Ins. Co., No. 5060181
In an insurance coverage suit, dismissal of defendant American International's counterclaim for negligence and bad faith in the settlement process is reversed and remanded where who had control over the litigation was a question of fact, not law, therefore dismissal was inappropriate. (Corrected 1/29/08)

Chandler v. Am. Fire and Cas. Co., No. 4060994
In a suit arising from defendant declining to pay policy limits in an automobile accident personal injury suit resulting in a suit for bad-faith failure to settle, summary judgment in favor of defendant is affirmed over claims that: 1) an insurer has a good-faith duty to settle a judgment in excess of policy limits upon a demand made after judgment; 2) plaintiffs filed their action within the applicable statute of limitations; and 3) plaintiffs' complaint stated a cause of action for punitive damages.

Eclipse v. US Compliance Co., No. 2060825, 2060889cons.
In a class action suit based on the allegation that defendant faxed advertisements to plaintiff and other businesses without first obtaining their permission, which was settled and resulted in a third- party citation against defendant's insurance company to discover assets and collect the policy proceeds on behalf of the class, judgment finding that the insurance policies obligated defendant's insurance company to pay the settlement is affirmed over claims that: 1) the laws of estoppel conflict between Minnesota and Illinois and the trial court should have applied Minnesota law rather than Illinois law; 2) under Minnesota law, insurance company's breach of its duty to defend the underlying suit does not bar insurance company from raising its policy defenses in the citation proceeding; 3) the insurance policies do not provide coverage under Minnesota law; and 4) even if Illinois law applies, the policies do not provide coverage.

IMC Global v. Continental Ins. v. Employers Mut. Liability Ins., No. 1063363
In an insurance coverage suit, finding that third-party defendant-Wausau had no duty to defend or indemnify plaintiff-Mosaic in underlying federal actions involving claims for personal injury and property damage resulting from exposure to hazardous chemicals at a fertilizer plant formerly operated by Mosaic's predecessor-in-interest is affirmed where Mosaic's notice of a claim or suit to Wausau was unreasonably and inexcusably late.

Johnson v. Davis, No. 5060266
In a suit to determine insurance coverage, declaratory judgment allowing the underinsured-motorists coverage provided by defendant-Addison Insurance to plaintiff-Johnson to be stacked is affirmed where the antistacking clauses contained in the Addison policy create an ambiguity when read in conjunction with the policy declarations page.

Outcom, Inc. v. Dep't of Transp., No. 5060659
In the matter of an application for outdoor-advertising permits, judgement ordering the Department of Transportation to issue permits to plaintiff is affirmed where there is no discretion vested in the Department to deny a fully compliant permit application. (Corrected 1/29/08)

Pekin Ins. Co. v. Harvey, No. 5060655
In a suit seeking a declaration that plaintiff-insurer had no obligation to defend defendant in a negligence action, grant of defendant's motion for summary judgment is reversed where a notice of cancellation of the insurance policy was mailed in compliance with a policy provision and the Illinois Insurance Code, and defendant's policy terminated for the nonpayment of a premium more than five months before the date of the accident.

Record-A-Hit v. National Fire Ins., No. 1070684
In an action seeking a judicial declaration that defendants-insurance companies owed a duty to defend and indemnify defendant Tri-State Hose and Fitting with respect to a class-action complaint asserting claims for violations of the Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act and a claim for conversion, dismissal of plaintiff's motion for declaratory judgement is reversed where a tort-claimant need not allege that neither the insured-tortfeasor nor the insurance carrier has filed a declaratory judgment action in order to adequately plead a declaratory judgment action to determine the scope of coverage afforded to the tortfeasor under a policy of insurance.

NEW YORK

Guishard v. Gen. Sec. Ins. Co., No. 159 SSM 16
In action for declaratory relief that defendant insurer has a duty to defend and indemnify plaintiffs in a personal injury action involving an injury to an eye sustained while riveting metal to a van, summary judgment for plaintiffs is affirmed where the work performed by the injured plaintiff did not constitute "maintenance" of an auto, and thus the work did not trigger the exclusion for injury arising out of maintenance.

Hosp. for Joint Diseases v. Traveler's Prop. Cas. Ins. Co., No. 140
In action by plaintiff hospital to recover no-fault insurance benefits for services rendered to a patient injured in a motor vehicle accident, the insurance company's failure to timely request verification of the patient's assignment of benefits to the hospital precludes the carrier from now contesting the validity of the assignment.

Property Clerk of the Police Dep't of the City of New York v. Harris, No. No. 138
The N.Y.P.D. is not required to prove at a post-seizure retention hearing that the co-owner of a seized vehicle is not an "innocent owner" when trying to impound a vehicle during the pendency of a civil forfeiture proceeding. However, due process does require that an innocent co-owner be given an opportunity to demonstrate that his/her present possessory interest in a seized vehicle outweighs the City's interest in continuing impoundment.

Raffelini v. State Farm Mut. Auto. Ins. Co., No. 129
A "serious injury" exclusion in a supplementary uninsured/underinsured motorist endorsement to an automobile liability policy is enforceable.

Smalls v. AJI Indus., Inc, No. 13
In case where passenger in a vehicle suffered injury when novice driver struck a parked dumpster, appellate division's reversal of denial of summary judgment motion by owner of dumpster is reversed where defendant dumpster owner did not show that the dumpster was located neither in a driving lane nor in the zebra-striped safety zone where parking was not permitted.

Stiver v. Good & Fair Carting & Moving, Inc., No. No. 137
New York State motor vehicle inspection stations cannot be held liable for failing to detect safety-related problems in inspected cars, and a third party cannot claim tort liability against a party with whom it lacks a contractual relationship, without being able to prove an exception to this rule under the court's test in Espinal v Melville Snow Contrs, (98 NY2d 136 [2002]).

TEXAS

Evanston Ins. Co. v. ATOFINA Petrochemicals Inc., No. 03‑0647
In a case involving the scope of insurance coverage provided to a third-party additional insured under an excess insurance policy, a court of appeals judgment in favor of respondent-additional insured is reversed where the policy language excludes coverage for the additional insured's sole negligence.

Excess Underwriter's at Lloyd's London et. al. v. Frank's Casing Crew & Rental Tools, Inc., No. 02-0730
Under an excess coverage insurance policy, with no insurer duty to defend under the policy and demands by the insured for insurer to accept a claimant’s settlement offer, no exception is established to the court’s decision in Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128, 135 (Tex. 2000) which found no right of reimbursement of the insurer from the insured.

Fairfield Ins. Co. v. Stephens Martin Paving, LP, No. 04-0728
Texas public policy does not prohibit insurance coverage of exemplary damages for gross negligence in the workers' compensation context.

Ford Motor Co. v. Ledesma, No. 05-0895
In this products liability case against Ford, a judgment pursuant to a jury verdict for plaintiff is reversed where the trial court reversibly erred in charging the jury by giving an incomplete definition of "manufacturing defect." The court also holds that Texas Pattern Jury Charge 70.1, a frequently submitted definition of "producing cause", should no longer be used.

Grimes Constr., Inc. v. Great Am. Lloyds Ins. Co. , No. 06-0332
In a case involving the duty to defend and indemnify under a commercial general liability policy (CGL), a court of appeals' decision affirming summary judgment for insurer is reversed where, pursuant to recent precedent of the court: 1) allegations of unintended construction defects may constitute an "accident" or "occurrence" as defined under the CGL policy; and 2) allegations of damage to or loss of use of the home itself may constitute "property damage" sufficient to trigger the insurer's duty to defend under the policy.

In re BP Prods. N. Am., Inc., No. 07-0119
In a mandamus proceeding concerning the enforcement of a discovery agreement governing what is commonly referred to as an "apex" deposition, the Supreme Court of Texas finds that the trial court abused its discretion in setting aside a valid discovery agreement without good cause.

Morales v. Liberty Mut. Ins. Co., No. 05-0754
In the context of Workers' Compensation insurance benefits, the question of a worker's employment status is one of compensability governed by section 410.301(a) of the Texas Labor Code, as opposed to an issue of coverage.

Nat'l Union Fire Ins. Co. v. Crocker, No. 06-0868
Under Texas law, an insurer has no extra-contractual duty to notify an additional insured of available liability coverage and provide an unsought, uninvited, unrequested, unsolicited defense. Further, an insurer's actual knowledge that an additional insured has been served with process does not establish as a matter of law that the insurer has not been prejudiced by the additional insured's failure to notify the insurer of the receipt of process.

PAJ, Inc. v. Hanover Ins. Co., No. 05-0849
An immaterial breach does not deprive the insurer of the benefit of the bargain, and thus, cannot relieve the insurer of the contractual coverage obligation. Consequently, contrary to a court of appeals' ruling, an insured's failure to timely notify its insurer of a claim does not defeat coverage under a policy if the insurer was not prejudiced by the delay.

PR Investments & Speciality Retailers, Inc. v. State of Texas, No. 04-0431
A condemning authority's decision to change the traffic-flow design, revising a road's signs and stripes but not its intended use, does not divest a trial court of jurisdiction over a trial de novo in proceedings under Chapter 21 of the Texas Property Code.

St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., No. 07-0384
A court of appeals ruling refusing to reach the merits of appellants appeal is reversed and remanded where the notice of appeal in the insured's name, filed by an insurer asserting rights to subrogation, was a bona fide attempt to invoke the appellate court's jurisdiction.