As discussed in a previous post, cyber insurance demand and premiums have significantly increased in recent years. Fitch Ratings forecasts that cyber-related premiums could balloon to $22.5 billion by 2025. Those increases presumably reflect considerable claims activity, including in connection with liabilities arising from war and state-backed cyberattacks. To manage these exposures, insurers in the cyber market are increasingly relying on changes to their policies that attempt to carve out some or all of this liability from coverage. A recent example of this trend, which may significantly alter the cyber insurance landscape, is playing out right now in the London Market.
Articles Posted in Placement & Underwriting
“Blank Space” Becomes Big Win for Builder’s Risk Policyholder
Loyal readers of this blog may recall our recent analysis of Norwegian Hull Club v. North Star Fishing Co., an insurance coverage dispute that appeared likely to turn on the meaning of a blank space in a very large builder’s risk policy. After bench trial, U.S. District Judge Robert L. Hinkle has filled that gap—giving the policyholders most, but not all, of the coverage that they sought. Under the judge’s decision, based upon industry custom and practice, that blank space provided the policyholder with nearly $20 million in extra coverage.
A Missing Issue in “Blank Space” Insurance Ruling
Insurance coverage disputes often turn on the meaning of the specific words used in a policy. Norwegian Hull Club v. North Star Fishing Co., currently pending in the U.S. District Court for the Northern District of Florida, presents a twist—it turns on the meaning of a blank space.
Last month, U.S. District Judge Robert L. Hinkle ruled that neither the policyholder nor the insurer was entitled to summary judgment regarding the interpretation of a critical policy provision, reasoning that an empty field rendered the clause ambiguous. But as the case now proceeds to trial, the most interesting part of the district court’s opinion might be its own blank space: contra proferentem, the argument it doesn’t address.
The Higher the Value, the Greater the Loss: The Importance of Updating Building Values in Inflationary Times
Earlier in 2022, CBRE forecasted a 14.1% year-over-year increase in construction costs by year-end 2022, as labor and material costs continue to rise, despite the expectation that overall cost inflation for materials would begin to cool by the end of the year. Commercial construction costs have indeed increased, as Turner Construction Company’s Third Quarter 2022 Building Cost Index reported an 8.62% yearly increase from the third quarter of 2021, a 2.18% quarterly increase from the second quarter of 2022. In addition to supply chain issues for building materials, skilled labor shortages and construction wage growth persists.
Closing Up the SPAC Shop: Insurance Consequences and Opportunities for Liquidating SPACs
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.
Strengthening Corporate Officer Protection: Delaware’s Updated Corporate Exculpation Law and Its Impact on D&O Liability Insurance
As the preferred place of incorporation for most U.S. companies, Delaware has long been a leader in the development of statutory and common law on corporate governance. In keeping with this role, the Delaware legislature recently amended its corporate code to permit enhanced legal exculpation of officers of Delaware corporations. Let’s look at this amendment and its implications for D&O insurance.
Cyber Insurance Premiums and Demand Surge After Boom of Costly Cyberattacks
The frequency and severity of cyber incidents, particularly ransomware attacks targeting businesses and critical infrastructure organizations, have been on the increase and are unlikely to subside anytime soon. Higher claim counts and loss severity have led to significant and continuing increases in cyber insurance losses. Insurers have made up for this increased risk profile by passing the costs onto consumers in two ways—by both increasing premiums and attempting to narrow coverage.
Flooded by Ida? Many Policyholders Can Expect Increased Premiums for Flood Insurance
After hitting the shores of Louisiana with winds of up to 172mph in late August, Hurricane Ida’s remnants barreled up to the northeastern United States, leaving waves of destruction in its wake. The deluge of rain—more than half-a-foot fell in just a few hours—turned streets and subway platforms into rivers. The catastrophic flooding caused by the record-breaking rainfall killed several dozen people, left thousands without power, and damaged countless homes and businesses. All told, Ida is said to have caused more than $50 billion in damage. And scientists predict that, because of climate change, heavy rainfall-producing storms like Ida will only become more and more frequent.
Follow the Leader: How Ambiguities in Excess Follow-Form Policies Can Lead Policyholders Down a Crooked Path
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.
Insuring a King’s Ransom: The Role of Cyber Insurance in Ransomware Risk Management
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.