In California, where a primary insurer is found to have unreasonably failed to settle within its policy limits, and a judgment is later entered against their insured in excess of those limits, the primary carrier can be liable to the insured for breach of an implied duty of good faith and fair dealing. And, where the insured’s excess carrier becomes liable for damages that exceed the limits of the primary policy as a result, that carrier may pursue an equitable ... Keep Reading »
Connecticut Workers’ Compensation Carriers May Pursue Justice
"He who does not punish evil commands that it be done.” -- Leonardo da Vinci Workers’ compensation statutes impose liability without fault on the employers of men and women who are injured on the job. They also permit employers to recoup the costs they incur from any third parties who actually caused the injuries through negligence or wrongful acts. But the liability of most employers is covered by insurance, and insured employers often have no incentive to prosecute ... Keep Reading »
What You Must Know about New York’s Proposed Cybersecurity Regulation for the Banking, Insurance, and Financial Services Sectors
Co-Authors: Josephine Cicchetti, Steven Blickensderfer Last week, New York’s Department of Financial Services released its long-awaited proposed cybersecurity regulation, which promises to deliver sweeping protections to consumers and financial institutions alike. The proposed regulation, titled "Cybersecurity Requirements for Financial Services Companies" (23 NYCRR Part 500), if implemented, would be a first-of-its-kind state provision that creates mandatory ... Keep Reading »
Cybersecurity Awareness Month: Visits From the Ghosts of Claims Past and Claims Future
Cybersecurity awareness month is nigh upon us again, and thus perspective is in order. 2016 brought us the first collection and analysis of the nascent claims history of the burgeoning cyber-insurance market. On August 27, 2016, the National Association of Insurance Commissioners (NAIC) released its “Report on the Cybersecurity Insurance Coverage Supplement,” which provides helpful analysis of NAIC’s first data cull from insurers writing various forms of cyber coverage. ... Keep Reading »
Postdiluvian Perils: Second Circuit Weighs Coverage For Losses Suffered After The Waters Recede
“[N]ow I only hear/ Its melancholy, long, withdrawing roar,/ Retreating, to the breath/ Of the night-wind, down the vast edges drear/ And naked shingles of the world.” — Matthew Arnold As this blog has reported, exclusions and limits for flood coverage have generally held up against the tide of claims arising from Superstorm Sandy. Now that the water is gone, however, new losses have been discovered, and new challenges arise. Last month, in National Railroad ... Keep Reading »
Subcontractor Exception Torpedoes Insurers’ Defense To Faulty Workmanship Claim
As this blog has reported, a line of cases deciding coverage disputes over faulty workmanship runs against (or, at least, around) a basic rule for interpreting insurance policies. Under that rule, the scope of coverage is determined by a policy’s insuring clause, which may be narrowed by one or more exclusions. Exceptions to the exclusions can add back coverage that the exclusions remove, but they cannot create coverage beyond the ambit of the insuring clause. E.g., ... Keep Reading »
In Indiana, an Absolute Pollution Exclusion May Exclude Absolutely Nothing
A recent article in the Sports section of The Miami Herald read "Shooting coach helps Winslow." Perhaps, but it probably didn't help the coach much. The admonition to "eat every carrot and pea on your plate" undoubtedly elicits laughs from the children to whom it is directed. The point is, some things are unambiguously ambiguous. Others are not. Consider these basic principles of Indiana contract interpretation: Limitations on coverage in insurance policies must ... Keep Reading »
NAIC Exposes Revised Draft Model Cybersecurity Law for Insurers for Public Comment
Insurers are a prime target for hackers as a result of the vast stores of valuable data they maintain. Not all information is created equal, and it varies in value. Hacker services and software, illegal drugs, cyberweapons, and all kinds of other types of stolen, confidential, and compromised information is monetized and traded daily on darknet markets using various forms of cryptocurrency, by governments, hackers, criminals, and businesses. While a stolen credit card ... Keep Reading »
Look, up in the sky! It’s a bird, it’s a plane, it’s… uh oh… a Super Lien!
Liability insurers have always gnashed teeth over the dreaded “super lien” – aka a lien asserted by Medicare for treatment expenses where the patient is reimbursed through a settlement obtained in personal injury litigation. This is because Medicare has a right of action against the primary payer (e.g., a tortfeasor’s liability insurer) that is effectively absolute, even if the insurer has already paid settlement funds to the injured party that includes an amount meant ... Keep Reading »
Greed is Not Good: The Personal Profit Exclusion
As this blog has frequently discussed, many limitations and exclusions in liability policies address “moral hazard” situations by declining to provide insurance for bad behavior. One such exclusion is the “personal profit exclusion” contained in most D&O policies, which bars coverage for claims where an insured gains a profit or other advantage to which it is not legally entitled. This exclusion was recently addressed by a Massachusetts appellate court in Winbrook ... Keep Reading »
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