September 22, 2017
The United States District Court for the Southern District of New York found that AXIS Insurance Company was not liable under a directors and officers insurance policy for $20 million in losses alleged by its insured, PATRIARCH PARTNERS, LLC, on the basis on the application of the policy’s “pending and prior claim” exclusion accepting arguments made by the carrier’s expert witness, Ty Sagalow.
In his report, Mr. Sagalow argued that the policy’s pending and prior claim exclusion applied because under the facts of this case a SEC subpoena issued following the institution of a SEC Formal Investigation was both a “demand” and and “order”within the meaning of the exclusion and the policy’s definition of Claim. Accepting Mr. Sagalow’s expert opinion, the Court concluded “Analyzed separately or collectively, the Topbas Subpoena, the Formal Order of Investigation, and the SEC’s underlying investigation of Patriarch constitute a “Claim” against an Insured that was pending before August 11, 2011.” (Decision at p. 9)
For a copy of the Court’s full opinion, go here.