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.
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.
The rare insurance dispute has appeared on the horizon for the nation’s highest court. Last month, the U.S. Supreme Court granted certiorari and agreed to take up the case of Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, on appeal from the Third Circuit. The key issue: whether a choice-of-law provision in a marine insurance policy can be rendered unenforceable if its enforcement would conflict with the “strong public policy” of the forum state.
When Illinois enacted the Biometric Information Privacy Act in 2008 (BIPA), the concept of “biometric privacy protection” was foreign to many observers. Yet less than 20 years later, consumers are familiar with the concept of biometric privacy and class action plaintiffs’ lawyers have spotted an opportunity. As many other states and cities have enacted (or are in the process of enacting) analogous biometric privacy laws, class actions are likely to increase. And like night follows day, insurers will look for ways to avoid their obligations to cover these claims.
In the last decade, per- and polyfluoroalkyl compounds (PFAS) increasingly have become the subject of actual or potential liability for a widening group of companies, with potential liability arising from both private tort lawsuits and governmental enforcement of environmental laws and regulations. In a recent Practical Guidance® Practice Note, Insurance Coverage for PFAS Liability, our colleague Tamara Bruno provides a comprehensive breakdown of this rapidly growing area of coverage need.
In 2020 and 2021, Special Purpose Acquisition Companies (SPACs) were all the rage. A SPAC is a “blank check company,” publicly traded, and organized for the purpose of merging with a private company. It’s a mechanism for a private operating company to go public without doing its own IPO. Though SPACs have existed for decades, their use skyrocketed in the last couple years. While insurers, brokers and attorneys have developed a level of expertise on risks and insurance coverage in connection with SPAC formation and completed de-SPAC transactions, the insurance implications of failed SPACs was not addressed in 2020 and 2021 and is still not fully understood or appreciated.
Recently, amid the tempest of media coverage surrounding Supreme Court oral arguments in the case of Students for Fair Admission v. President & Fellows of Harvard College, another federal court quietly issued a dispositive order in related coverage litigation, holding that Harvard’s excess carrier, Zurich, had no coverage obligation in the underlying case because Harvard did not provide timely notice under a “claims-made-and-reported” policy. The case is President and Fellows of Harvard College v. Zurich Am. Ins. Co., 1:21-cv-11530-ADB (D. Mass.).
Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against their alleged attackers which otherwise would have been time barred. On September 19, 2022, California Governor Gavin Newsom signed an equivalent law, the Sexual Abuse and Cover Up Accountability Act (AB-2777), which similarly suspends the statute of limitations for civil claims of sexual assault and other vicarious offenses arising out of that conduct starting January 1, 2023. These laws will likely generate a surge of litigation in California and New York, undoubtedly impacting many businesses operating there. Many, if not most, of those companies will look to insurers to furnish legal defenses and to financially support settlements or damage awards based on past policies.
Policyholder Pulse