Must an insurer consider the possibility that putative class members (i.e., potential class members not named in the complaint) other than the proposed class representatives (i.e., the plaintiffs named in the complaint to represent the proposed class) have claims within the proscribed policy period in determining whether its duty to defend has been triggered? Many insurers answer “no,” arguing putative class members’ claims—many of which would otherwise be barred by the applicable statute of limitations—are too speculative to trigger coverage. But courts across the country have disagreed, repeatedly answering the question in the affirmative. Last year, the Northern District of Indiana was the latest court to decide this issue in favor of policyholders.
Cyberattacks are an increasingly frequent and costly risk faced by almost every business today. While the availability and scope of cyber-specific insurance has developed exponentially over the past few years, it is important to remember that more traditional policies (such as general liability and first-party property insurance) can still be a source for coverage in connection with cyber incidents, as a recent court decision demonstrates.
There has been tremendous recent growth in the range of specialized insurance policies offered to protect against intellectual property (IP) claims. “Traditional” policies may cover a given IP claim, but specific IP policies are growing in popularity as policyholders with IP-related risks look to bolster that aspect of their coverage portfolio. Because specialized IP policies are less common, less standardized, and less tested in courts, it is important that policyholders be knowledgeable about the market for IP coverage, including the types of coverages and specific policy wordings being offered. Here are a few practical tips to consider when securing such policies.
There has been a drumbeat of news reports about Wuhan, China, a city more populous than any in the United States, which is in effective lock-down because of the coronavirus. Foreign nationals are being evacuated, travel has been restricted, and business is at a standstill. At a time like this, preserving public health is the highest priority. But businesses, both local and global, are also affected by shut-down orders, disruptions to their supply chains, mass sick days, and loss of business. Many, especially providers of hospitality or health care, may face elevated liability risks for exposing others to a contagion. It is important to remember that insurance may be available to meet these risks.
Recent headlines have raised significant concerns about the possibility of cyberattacks on U.S. businesses as a result of the heightened tensions with Iran. The Department of Homeland Security, through its Cybersecurity and Infrastructure Security Agency (CISA), has published alerts and guidance recommending heightened awareness and vigilance. In “International Pressure Raises Cybersecurity Threats,” Tamara D. Bruno, Brian E. Finch and Cassie Lentchner explore some of the practical steps companies can take toward cybersecurity precautions, compliance and insurance when heightened tension in the Middle East or other events increase the threat of cybersecurity incidents.
Sexual abuse litigation is increasingly common, and an unfortunate wave of new lawsuits is coming. In her recent alert, Pillsbury’s Joan Cotkin reviews how the insurance industry has responded to these risks with new liability insurance products designed to address such claims, what coverage defenses insurers are likely to assert, and how you can anticipate and respond to them to secure the benefit of your coverage.
In recent years, Wisconsin generally has been a pro-policyholder jurisdiction when it comes to long-tail environmental coverage cases. That trend continues with a decision by a Wisconsin appellate court in a case involving coverage for environmental cleanup costs at a former manufactured gas plant site. In Superior Water, Light & Power Co. v. Certain Underwriters at Lloyd’s, London Subscribing to Policy Nos. K22700, CX2900, and CX2901, the court reversed a lower court and held that there may be coverage under historic policies if there was damage to groundwater during the policy period, notwithstanding that site operations had ceased years earlier. This is an important decision, as the same historic London Market “occurrence” definition was used in many policies issued to other policyholders by London Market Insurers during the same time frame. (A description of some of the unique aspects of the London insurance market can be found here.)
The California Court of Appeal recently disposed of a novel attack on bad faith law launched by Zurich American Insurance Company. In Miller Marital Deduction Trust, et al. v. Zurich American Insurance Company, 2019 DJDAR (October 23, 2019), Zurich was called upon to defend a cross complaint arising in connection with long-tail pollution claims. Despite an extensive reservation of rights and a conflict of interest, Zurich refused to pay for independent counsel (Cumis counsel, in California parlance) and instead appointed panel counsel to defend. While the underlying environmental case was pending in federal court, the Millers filed a state court action against Zurich asserting that the insurer’s appointment of counsel answerable to the insurance company, in violation of the Millers’ right to independent counsel, constituted breach of contract and a breach of the covenant of good faith and fair dealing.
In late August, the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Corporation (NERC) issued a joint white paper proposing a “name-and-shame” approach to electric utilities that failing to meet NERC Critical Infrastructure Protection (CIP) Reliability Standards. The standards represent a baseline for protecting against cyber-attacks on critical infrastructures. FERC and NERC propose to depart from the historical practice of withholding most material details regarding CIP Reliability Standard violations, and instead to start disclosing the names of allegedly violating electric utilities in response to Freedom of Information Act requests—“naming and shaming them.” This development underscores the substantial cyber risks utilities face and, likewise, the importance of appropriate insurance for those risks.
Colleagues Matthew G. Jeweler, Cassie Lentchner and Brendan Hogan (along with Richard Mroz , managing director of Resolute Strategies LLC) examine the proposal more closely in “Name-and-Shame Proposal of Electric Regulators Highlights Need for Cyber Insurance.” They also outline a few key points electric utilities should keep in mind with respect to securing the right kinds of insurance coverage for cyber-related incidents.
In an important decision in the world of professional liability (including D&O and E&O policies), the Seventh Circuit recently held that a “contractual liability” exclusion—i.e., an exclusion for claims “based upon or arising out of … breach of contract”—when inserted in a professional liability policy, that is, a policy intended to insure professionals for services they perform under contract, renders the coverage “illusory.” Accordingly, the appeals court held that the policy must be “reformed” to meet the policyholder’s “reasonable expectations” that coverage would be afforded for claims by clients for errors and omissions in the performance of professional services under contract, and remanded the case to the district court to apply those reasonable expectations in the pending dispute. (See Crum & Forster Specialty Insur. Co. v. DVO, Inc., No. 18-2571 (7th Cir., Sept. 23, 2019), opinion here.)