Since 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.
When 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.
Location 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.
As those who experienced the Texas winter storm crisis are likely discovering, vital questions of coverage and recovery linger—and in some cases, first appear—long after the ice has melted and power has been restored. In “Texas Winter Storms: Evaluating Business Interruption Claims Following a Large-Scale Disaster,” Joseph D. Jean, and Tamara D. Bruno examine some of the challenging questions about business interruption insurance coverage raised in the aftermath of the storms.
In another dramatic weather event, the recent severe winter conditions in Texas introduced unprecedented hardship for Texans and devastating damage for nearly every industry sector. In “Preparing Your Personal and Business Insurance Claims: Responding to the Texas Winter Storm Crisis,” Tamara D. Bruno, and Joseph D. Jean discuss the emerging insurance recovery, legal, commercial, regulatory and, in some respects, operational considerations that industries should be prepared to address in the wake of this Texas winter event.
Since the beginning of the COVID-19 business interruption insurance coverage battles, insurers have labored to pour cold water on these claims—often hiring the biggest and wealthiest law firms in America to crush hair salons, motels, restaurants and bars represented by solo practitioners or lawyers with little prior insurance coverage experience. Not surprisingly, insurers have been successful in many of these early David-versus-Goliath cases (many of which involved policies with virus exclusions that the policyholders were seeking to avoid by pointing to government shutdown orders—and not the virus—as the sole cause of their loss), as we recently discussed. But the tide is turning as, increasingly, courts are applying the policies as written—rather than how insurers wished they had been written—and finding clear paths to coverage for COVID-19 claims. One such recent California federal district court case, Pez Seafood DTLA, LLC v. Travelers Indemnity Co., is a must-read for policyholders with COVID-19 losses, especially in California.
Last month, the U.S. Court of Appeals for the Ninth Circuit awarded Pillsbury client Northrop Grumman a significant appellate victory, reversing an adverse decision from the U.S. District Court for the Central District of California on a question of first impression within the circuit. The court’s decision in AXIS Reinsurance Company v. Northrop Grumman Corporation not only restores Northrop Grumman’s access to millions of dollars in insurance coverage; it provides stability and predictability in insurance law by rejecting an excess insurer’s assertion of wide-ranging authority to “second-guess” coverage decisions made by underlying insurers.
In the uncertain times ushered in by the COVID-19 pandemic, observers of the insurance law landscape can find footing in an old, familiar story: a single insured left deeply dissatisfied by her insurance provider’s coverage for an accident lawsuit against her. But in In re: Farmers Texas County Mutual Insurance Co., a novel question of settlement authority offers the chance to make new law.
When an insurer pursues a judicial determination on its duty to defend and agrees to defend its insured retroactively only five months after its insured initially requested a defense, has it breached its duty to defend? In most jurisdictions, the answer would be “yes.” In California, for example, an insurer must afford an immediate and entire defense in response to a tendered claim that is potentially covered under the Buss doctrine; belated, after-the-fact payments cannot cure that breach. But under the rule of a new Wisconsin decision, however, the same insurer would not have breached its duty to defend.