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One large yellow rubber duck with many smaller ones following itA feature of most corporate liability insurance programs is the tower system of coverage: a primary policy with several overlying excess policies stacked atop one another collectively providing coverage up to a desired (or available) limit of liability. Depending on the size and liability exposures of a policyholder, a tower can consist of dozens of policies providing limits totaling hundreds of millions of dollars. Adding to this complexity, excess policies often share layers of coverage in quota share arrangements, sometimes subscribing to the same policy but more often issuing separate policies for a stated percentage of the quota share whole. To avoid as much as possible an impenetrable web of conflicting coverage terms, excess policies often “follow form” to the underlying coverage (usually to the primary policy) providing the insurer certainty and providing the policyholder a consistent tower of coverage. It is not always possible, though, to obtain clarity and certainty in tower placements. Insurance companies issuing excess coverage may not wish to agree to all the terms included in the underlying policies, and so may offer additional or differing terms, creating inconsistencies in an otherwise monolithic tower. For example, a primary insurer may refuse to cover punitive damages whereas an excess insurer may agree to do so, or vice versa.

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Biometrics-New-York-168621112-300x225Since July 9, 2021, New York City’s businesses have been subject to the requirements of a new biometrics law. Businesses operating in New York City should consider both their potential liability under these new requirements and whether their current insurance program protects them against associated risks.

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Silhouette of black truck with white marijuana leaf on itThe legal cannabis industry in the U.S. is growing at an unprecedented rate and is projected to reach $73.6 billion by 2027. While federal law still classifies marijuana as a Schedule I drug, many states have legalized both medical and recreational marijuana. As state restrictions ease, new business opportunities continue to emerge.

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Winning a championship ring is everything. Just ask the Los Angeles Dodgers, who won 11 National League West titles between their 1988 and 2020 World Series Championships and would likely have traded several of those division titles for more World Series championships. But, of course, not all rings are equal. Neither are sports collectibles.

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In a recent federal court filing, Zurich American Insurance Company asked the district court to ignore the entirety of science regarding COVID-19 in order to support Zurich’s denial of all coverage for COVID-19 business interruption losses.

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Hand representing hacker offering old-time key to another hand with cash, with a laptop in background with red screen and lock icon Nearly 700 years ago, England captured King John II of France and held him for ransom for four million écus. But France could not afford to pay, and King John II ultimately traded his two sons as substitute hostages to try and secure his own release.

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Digital fingerprint, illustrationDo general liability policies provide coverage for limited disclosures of biometric data, such as fingerprints? The Illinois Supreme Court has concluded that they do.

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GettyImages-172710364-300x200When Frank Sinatra famously sang “if I can make it there, I’ll make it anywhere,” he was probably not crooning about making a claim for insurer bad faith. New York has indeed acquired a reputation as a difficult place to obtain an award of extra-contractual damages for an insurer’s unreasonable denial of coverage—one reason that insurance companies perceive New York to be a relatively favorable venue for coverage litigation. While New York law does in fact provide remedies for insurer misconduct, a bill recently introduced in the New York State Assembly could further expand policyholder protections. The legislation would create a private right of action for policyholders to sue their insurers (and for injured parties to sue tortfeasors’ insurers directly) for unreasonable refusal or delay of coverage and for categories of damages that include attorneys’ fees, consequential damages, and punitive damages. This sweeping legislation would allow New York to “be a part of it” along with many other states, like California and Washington, that have robust statutory protections against unfair claims practices.

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GettyImages-1051720322-300x200For both good and ill, the COVID-19 pandemic has altered every facet of personal and professional life. For example, many employees have enjoyed unprecedented freedom to work remotely. However, with vaccines becoming more readily available, the time is soon approaching when people will return to their offices and places of work. With this return comes the potential for workplace-related disputes and, in their aftermath, claims for insurance coverage for the actions of employees, such as sexual harassment.

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Evening picture of Space Needle in SeattleLocation matters. Some states are more protective of policyholder or consumer interests than others. And so, where the case is ultimately litigated, and what law applies, can have profound implications for a policyholder’s recovery.

In an effort to secure the application of a body of jurisprudence they perceive to be more favorable to them, insurance companies will sometimes include provisions in policies mandating either that cases arising under the policy be filed in a certain court or conducted under a specified state’s laws. We have previously noted the limits of such choice-of-law provisions, especially when the selected state’s laws conflict with the fundamental public policy of the state in which a coverage suit is filed. Now, a recent decision from a New York State court illuminates the limits of forum-selection clauses in an insurance policy.

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