Insured entitled to pursue federal damage claim based on state liability finding

Insurance Matters

By Don R. Sampen

Don R. Sampen is a member of the appellate practice group of Clausen, Miller P.C., where he focuses on appellate, commercial and insurance-related litigation. He also teaches insurance law at Loyola University Chicago School of Law. His column appears twice monthly.

Posted December 6, 2022 10:49 AM

The 7th U.S. Circuit Court of Appeals recently held that, following a declaratory action in state court finding that an insurer breached its duty to defend, an insured was not precluded from seeking damages for such breach in federal court. The insured could do so due to a dismissal of the insured’s damage claim in state court with express leave to pursue the claim in federal court.The case is Creation Supply, Inc. v. Selective Insurance Co. of the Southeast, 51 F.4th 759 (October 19). The insured, Creation Supply …

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