IKEA’s Billy bookcase—so popular that one is reportedly sold every 10 seconds—recently got even cheaper, at least for Russians. IKEA is holding a fire sale as the company closes its stores and exits the Russian market. The Swedish furnituremaker’s exit from Russia is just the latest in a string of actions by over 1,000 companies—including Disney, Goldman Sachs, IBM, McDonalds and Starbucks—that are curtailing operations in the country in response to the Russia/Ukraine conflict. As of June 2022, global companies fleeing Russia have reportedly racked up more the $59 billion in losses associated with their departure. Of course, this pales in comparison to the more than 10,000 civilian casualties and $600 billion in economic losses that Ukraine has suffered since the conflict began. But even though the corporate exodus from Russia for many companies is voluntary (and has even been used by some as a positive public-relations spin), Russia has threated to confiscate Russian-based assets of companies from countries that Russia considers hostile to its interests, and U.S. and EU sanctions may practically serve to prohibit some companies from operating in Russia, all of which highlights that additional risks lie ahead.
The past several decades have muddied what once was a clear relationship between policyholders and their insurers. For pre-1987 occurrence-based policies in particular, policyholders face an increasingly familiar scenario: one day, they learn they are no longer dealing with the insurer that sold them insurance. A stranger has crept into the relationship.
On July 13, 2022, the California Second District Court of Appeal issued a published decision reversing a trial court’s dismissal of a policyholder’s COVID-19 coverage claim. In Marina Pacific Hotel & Suites, LLC v. Fireman’s Fund Insurance Company, the Court took two remarkable steps in the context of nationwide COVID-19 litigation. First, the Court recognized that courts must accept as true properly alleged facts when deciding a pleading challenge. Second, the Court did not merely recite the long-established rules of construction for insurance policies that apply in California and most states; rather, it followed those rules by engaging with the actual policy language.
As the number and severity of cyberattacks rise, the importance of insurance coverage to offset resultant loss becomes increasingly important. An opinion issued by the Ohio Court of Appeals is a happy reminder that there may be coverage for cyber-related loss even if you did not buy cyber-specific insurance and that policyholders should review their entire insurance portfolio when confronted by a cyber loss.
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.
This week the Louisiana Court of Appeal found coverage for coronavirus and COVID-19 claims by reading the actual insurance policy language and relying on long-established precedent governing the interpretation of insurance policies. Particularly, the court found that the presence of coronavirus on the insured premises that slowed down the business operations of the policyholder triggered all-risk coverage because it caused “physical loss or damage” to the policyholder’s business property. The court rejected the insurer’s arguments that coverage was not available absent (a) any physical or structural alteration to the property; (b) completely shutting down the policyholder’s business operations; and (c) rendering that property uninhabitable. The court also rejected the insurer’s argument that the policy’s “period of restoration” clause—which indicated the interruption period ends when damaged property is restored, repaired or replaced—required a physical alteration to property, holding the policyholder’s efforts to remove coronavirus by cleaning or disinfection fell within the “period of restoration.”
An oft-repeated maxim in self-help literature is: “Do not let your circumstances define who you are.” In a similar vein, policyholders should proactively manage situations in which known circumstances may potentially give rise to an eventual claim.
Suppose a company perceives the potential risk of litigation or a government investigation. This may not necessarily be the result of any known wrongful conduct—such risk may just be inherent in the company’s business model or within the company’s industry. When the company’s D&O insurance policy (or employment liability or professional liability, as the case may be) is on the verge of expiring, the company may be faced with the decision whether to report such circumstances to the insurer under the policy’s “notice of circumstances” (NOC) provision, which permits the policyholder to provide notice of facts or events that may give rise to claims in the future. If such notice is given within the specified time, the insurer will treat any subsequent claims arising out of the noticed circumstances as claims first made within the policy period, even if the claims are brought much later.
If you were to look for a quick answer regarding whether a commercial general liability (CGL) policy covers damage resulting from faulty workmanship under Pennsylvania law, you’d likely come out believing the answer is “no.” Many article headlines, purported state surveys, and news reports come to that conclusion based on the general finding that faulty workmanship causing damages only to the work itself is not an “occurrence” under the standard CGL insurance policy definition. But this analysis misses a critical nuance in the case law and the important distinction between damage to the negligent contractor’s work and damage to “other property.”
In January, colleagues Joseph D. Jean, Alexander D. Hardiman, Benjamin D. Tievsky, Janine Stanisz and Stephen S. Asay examined New York’s Comprehensive Insurance Disclosure Act, which amended New York Civil Practice Law & Rules (CPLR) § 3101(f) to require defendants in civil cases to disclose voluminous and potentially sensitive insurance materials. When signing the act into law, Governor Kathy Hochul requested that the legislature enact amendments that would reduce the burden on litigants. On February 25, 2022, Gov. Hochul signed into law a variety of amendments that address some—but not all—of the concerns with New York. In “New York Amends Recently Enacted Comprehensive Insurance Disclosure Act Requirements,” our colleagues take a closer look at latest changes to CPLR § 3101(f).