Long a feature of directors’ and officers’ (D&O) liability insurance policies, the so-called “Bump-Up” Exclusion has gotten significant attention over the last few years. Because of the recent escalation in securities litigation that follows a majority of mergers and acquisitions, the Bump-Up Exclusion is of critical importance to publicly traded policyholders. Bump-Up Exclusion provisions are often found in a D&O policy’s definition of “Loss” and purport to exclude the amount of a settlement or judgment that represents an increase in the price paid to acquire an entity, where such consideration was alleged to be inadequate. A recent decision out of the Delaware state courts affirms again that D&O insurers will be held to the specific terms of their Bump-Up Exclusions.
Courts don’t look kindly upon insurance company shell games. In Preferred Contractors Ins. Co. v. Baker & Son Construction, the Washington Supreme Court slapped down an insurer’s attempt to manipulate the type of general liability “trigger” it wrote to sell coverage that was illusory.
Following the breakup of large utility holding companies by trust busters in the 1930s, General Electric created Ebasco (Electric Bond and Share Company), a construction company and consultancy that, among other things, assisted newly independent utilities throughout the United States to obtain broad excess-level occurrence-based liability insurance policies. These so-called Ebasco policies were attractive to utility policyholders because of their comprehensive insuring agreement, modest exclusions (e.g., no pollution exclusions), and the absence of aggregate limits. Illustratively, a $10 million Ebasco policy potentially could pay up to 20 times its limits (equivalent to $200 million) to fund cleanup of 20 contaminated sites, assuming an occurrence at each site happened during the policy period. For decades, Ebasco policies, primarily underwritten by London market insurers, have been the subject of litigation related to pollution, asbestos and human health claims.
Temperatures in Arizona this week reached over 110 degrees Fahrenheit. The water temperature in the Florida Keys was reported to reach sauna-like levels, threatening the life of habitat-sustaining coral. Atmospheric conditions are routinely blamed for violent storms and for wildfires that darken the skies.
For decades, affirmative action programs were implemented within educational institutions across the country with the stated goal of maintaining a diverse student body.
This practice was severely curtailed on June 29, when the U.S. Supreme Court issued a ruling in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, striking down race-conscious admissions programs at Harvard University and the University of North Carolina at Chapel Hill as violating the Constitution’s equal protection clause and Title VI of the Civil Rights Act.
The collapse of Silicon Valley Bank (SVB), the failure of Signature Bank, the close-call of First Republic, and the bailout of Credit Suisse had many proclaiming earlier this year that banking was heading toward an industry-wide disaster. The chair of the FDIC reported in March of this year that American financial institutions incurred a total of $620 billion in unrealized mark-to-market losses. The stock markets certainly reflected those figures. The Nasdaq index for bank stocks dropped by a quarter within a week after SVB’s failure was announced. Gains accumulated over the past quarter century evaporated in just a few days, with U.S. regional lenders bearing the brunt of the impact. While last month saw the banking sector make a modest rebound, the sector gauge remains down by 20% so far this year.
Generative AI is transforming our economy in previously unimagined ways, with Goldman Sachs estimating a $7 trillion (7%) increase in global GDP by virtue of this ecosystem. Insurance is but one sector that will be impacted, with new products, services and opportunities for efficiencies being the most obvious benefits. For insight into the insurance implications of this technology, we asked AI oracle du jour ChatGPT-4 the top three ways it believes generative AI will impact policyholders.
It is a settled principle of insurance law that a liability insurer’s duty to defend is broader than its duty to indemnify. In most jurisdictions, if any portion of a complaint against a policyholder is even potentially covered, the insurer must defend the entire action.
What is subrogation? Why am I being asked to waive it? Should I care? To answer that last question, let’s take a quick run at the first two.
What Is Subrogation?
“Subrogation” refers to the act of one person or party standing in the place of another person or party. It is a legal right held by most insurance carriers to pursue a third party that caused an insurance loss in order to recover the amount the insurance carrier paid the insured to cover the loss. This occurs when (i) the insurance carrier makes a payment on behalf of its insured as the result of a covered accident or injury, and then (ii) the insurer then seeks repayment from the at-fault party.
As summer vacation rolls around and hotels, restaurants and other hospitality companies gear up for a busy tourist season, coastal businesses in the U.S. Southeast, Puerto Rico and the Caribbean may be welcoming an unexpected guest—the Great Atlantic Sargassum Seaweed Belt. Businesses are bracing for this ten-million-ton mass of brown seaweed, which is floating on the ocean surface and extending from the west coast of Africa to the Gulf of Mexico.