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.
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.
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.
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.”