A few weeks have passed since the Suez Canal was cleared of the now infamous Ever Given, the quarter-mile-long, 220,000-ton cargo ship that ran aground, clogging one of the world’s most crucial shipping arteries for over six days. For almost a week, the world was captivated by an 869-foot-wide portion of the historic canal built in 1869 to connect the Mediterranean Sea to the Red Sea through the Isthmus of Suez. Ordinary people from all walks of life instantly became armchair marine engineers, nautical scientists and tugboat captains, offering advice on how to free the ship in a matter of minutes, while hundreds of massive cargo vessels sat stranded at either end of the canal. Finally, on March 29, 2021, after around-the-clock efforts by international teams, salvage crews extricated the ship, allowing the rest of us to turn (reluctantly) back to our day jobs.
In the finance world, Special Purpose Acquisition Companies (SPACs) are proliferating like Dutch tulips. This year alone, they’ve exploded in popularity, with multitudes of celebrities, politicians, and influencers sponsoring SPACs of their own. The list includes the likes of Colin Kaepernick, Shaquille O’Neal, Alex Rodriguez and Tony Hawk. Even amidst new concerns from the SEC, which reportedly opened an inquiry into the investment risks of SPACs and issued a bulletin warning prospective investors to exercise caution investing in celebrity-sponsored SPACs, SPACs have raised staggering amounts of capital.
In a previous post, we addressed blanket additional insured endorsements and the role they play in passing insurance obligations downstream. In short, the purpose of a “blanket” endorsement is to grant additional insured status to any company as required in a written contract with the named insured. This obligation often begins in the prime contract where the owner requires additional insured status on the general contractor’s insurance. However, the general contractor typically attempts to pass this obligation downstream to its subcontractor by including a requirement in the subcontract that both the general contractor and owner are named as additional insureds. But what happens if there is no written agreement between the named insured and the company seeking additional insured status, or if there are multiple required additional insured entities and only some have contractual privity with the subcontractor?
On March 13, 2020, three plainclothes police officers forced entry into an apartment and fired some 32 shots. A woman sleeping in her bed was shot six times and died.
On September 3, 2020, a woman drove her car into a crowd of Black Lives Matter protesters, injuring several people.
On December 12, 2020, four people were stabbed in the Nation’s capital following a day of protesting by competing groups over the results of a democratic election.
On January 6, 2021, thousands of insurrectionists pushed past a police blockade to breach the U.S. Capitol building while lawmakers were certifying the votes of a democratic election.
On March 29, 2021, an elderly Asian woman was physically and verbally attacked on her way to church.
On April 2, 2021, a man rammed his car into the security barrier near the U.S. Capitol building, killing one officer and injuring another.
Unfortunately, as we all know, these brief summaries are merely a snapshot of the political and racial unrest that has been unfolding in the United States over the last year. During these trying times, various companies, from Nike to Estée Lauder, have begun speaking out in support of Black lives, police reform and the Asian community. Many companies also wrote to Congress in support of free and fair democratic elections and urged Congress to certify the electoral vote following the United States’ 2020 presidential election. This type of corporate soul searching is commendable. And, for many companies, showing public support for racial justice and equality and/or other democratic principles is fundamental to their culture and positioning as leaders in their marketplace.
A recent article in Law360 shines a spotlight on an Amended Complaint filed by Pillsbury’s award-winning Insurance Recovery and Advisory Group in a significant insurance recovery action seeking coverage for COVID-19 business interruption. In it, the Amended Complaint is described as a “beefed-up filing” where our colleagues have “unleashed a deluge of scientific studies on COVID-19.” The article suggests that the “the arguments outlined in Tuesday’s filing could be a potential avenue around Mama Jo’s v. Sparta Insurance Co., a heavily cited decision in which the Eleventh Circuit held that policyholders must show their properties required physical repairs to constitute direct physical loss. A number of insurers have pointed to that ruling in shooting down COVID-19 insurance cases.”
In recent weeks, two insurers with significant legacies of occurrence-based general liability coverage took important steps to liquidate their estates.
Bedivere Insurance Company (OneBeacon) Liquidation
The first insurers are associated with Bedivere Insurance Company, formerly known as OneBeacon Insurance Company (OBIC). OBIC’s history stretches back to the 1800s but is most well known as the successor to the General Accident and Commercial Union families of insurers. These companies wrote many policies from the 1960s through the 2000s and include Commercial Union Assurance Company, Employers Commercial Union Insurance Company, Employers’ Surplus Lines Insurance Company, Employers’ Liability Assurance Corporation Limited, General Accident Insurance Company, and CGU Insurance Company (and many other smaller companies). OBIC stopped writing new business in 2010 and entered run-off, paying claims from its historic exposures. In 2014, OneBeacon Group, OBIC’s parent, sold its run-off business to a Bermuda entity called Armour Group. The transaction included OBIC and other subsidiaries (Potomac Insurance Company, OneBeacon America Insurance Company, and The Employers Fire Insurance Company). OBIC changed its name to Bedivere Insurance Company in 2015, and in October 2020, absorbed its subsidiaries by merger.
Insurers generally have a statutory duty to provide a legitimate factual and legal basis to deny a claim, and to discharge this duty sometimes engage in-house or outside counsel to assist in the investigation and handling of policyholders’ claims for coverage, including ghostwriting coverage correspondence and denials of coverage. The decision to outsource ordinary claims investigation and handling to legal counsel (putting aside that many claims handlers are lawyers) comes at a price. Two recent court rulings highlight that insurers’ decision to use in-house or outside counsel to ghostwrite coverage correspondence can come back to haunt them by waiving any alleged privilege.
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, Tamara D. Bruno and Richard C. Giller 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, Richard C. Giller 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.
The Biden administration has hit the ground running with executive orders, regulatory and legislative priorities, and cabinet-level and other top posts being announced on a daily basis. Our public policy colleagues have been closely tracking many of the policy priorities of the new administration and highlighting important regulatory and legislative developments that businesses can expect coming down the pipeline.