Criminal and Insurance Matters
US v. Davis, No. 08-3240, concerned the government's motion for summary affirmance of a defendant's child pornography possession sentence before the appeal of the sentence had been fully briefed. The court of appeals affirmed, on the ground that the appeal rested on neither fanciful allegations of fact nor inarguable assertions of law.
N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., No. 08-5504, involved an action by a barge operator against an insurer for defense costs associated with Hurricane Katrina-related damages.
The Second Circuit affirmed in part the district court's order 1) dismissing all causes of action brought against defendant, 2) granting plaintiff the fees and expenses of two of the three law firms it retained to defend Katrina-related actions, and 3) denying plaintiff's motion to transfer and its application for attorneys' fees, holding that 1) the locus of operative facts as well as the interests of efficiency and fairness favored a New York forum; 2) the term "otherwise" in the insurance policy did not include the kind of relationship associated with a shipowner's bailment to a terminal operator, which was at issue in this case; 3) plaintiff did not have a right to pursue independent counsel to defend the Katrina actions whose legal fees would be covered by the primary policy; 4) because summary judgment in favor of defendant was warranted based on the simple non-coverage of the barge under the policy, and because there was no dispute that the primary policy had been exhausted, the excess policy applied to cover expenses in excess of the primary policy's limits.
However, the court of appeals vacated the district court's order in part on the ground that coverage for fees earned by both counsel, either as excess to defendant's primary policy or as initial coverage for plaintiff's independent counsel, was intended pursuant to the umbrella coverage provided by the excess policy.