EMHART INDUSTRIES, INC., Plaintiff-Appellee, Cross-Appellant, v. CENTURY INDEMNITY COMPANY, as an indirect successor to Insurance Company of North America, Defendant-Appellant, Cross-Appellee, HOME INSURANCE COMPANY; NORTH RIVER INSURANCE CO.; ONEBEACON AMERICA INSURANCE COMPANY; US FIRE INSURANCE CO., Defendants, Cross-Appellees, LIBERTY MUTUAL INSURANCE COMPANY, Defendant., 559 F.3d 57

Summary

In its cross-appeal, the successor argued that the duty to defend continued, that it was entitled to total indemnity costs for the insurer's breach of the duty to defend, and that the district court committed various errors with respect to the jury verdict. The district court assessed the total costs of defense of the underlying action as damages, but only up to the date of the jury's finding that the insurer did not owe a duty to indemnify. In its appeal, the insurer argued that the district court erred in applying the "pleadings test" to both its primary policy and its excess policy to determine whether it owed a duty to defend. Affirming, the court agreed with the district court that the pleadings test applied to the policies at issue. The court rejected the insurer's argument that the "during the policy period" language in the policies limited the amount of recovery. There was no connection between limiting coverage by the policy period and the amount of defense costs, which ...