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.
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.
The past several decades have muddied what once was a clear relationship between policyholders and their insurers. For pre-1987 occurrence-based policies in particular, policyholders face an increasingly familiar scenario: one day, they learn they are no longer dealing with the insurer that sold them insurance. A stranger has crept into the relationship.
If you were to look for a quick answer regarding whether a commercial general liability (CGL) policy covers damage resulting from faulty workmanship under Pennsylvania law, you’d likely come out believing the answer is “no.” Many article headlines, purported state surveys, and news reports come to that conclusion based on the general finding that faulty workmanship causing damages only to the work itself is not an “occurrence” under the standard CGL insurance policy definition. But this analysis misses a critical nuance in the case law and the important distinction between damage to the negligent contractor’s work and damage to “other property.”
Early in 2021, we wrote about potential insurance implications that could arise from the then-new Biden Administration’s expected regulatory priorities. Among other things, we noted that heightened scrutiny on coal ash was expected. On January 11, 2022, the U.S. Environmental Protection Agency (EPA) confirmed that prediction, issuing a press release announcing “key steps” it is taking to “protect groundwater from coal ash contamination.” As companies with coal ash liabilities consider EPA’s new guidance and next steps, they should be aware that they may have insurance that could cover some of their coal ash cleanup costs.
As cybercrimes and data breaches continue to cause significant damage to companies of all types, policyholders are looking to their various insurance policies for coverage to help weather the storm and recoup losses. A recent decision by the U.S. Court of Appeals for the Fifth Circuit highlights the need for companies to review all of their policies for potential cyber-related coverage, including their CGL policies.
A 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.
For 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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