Recent Posts
Follow Us
twittergoogle_pluslinkedinrssyoutube
The Legal Stuff
BT Policyholder Protection Blog
0 0

09 Jan 2018 New Year’s Resolutions for Policyholders

  The champagne bottles are empty, the football games are over, and the kids are back in school. That can only mean one thing – it’s time for New Year’s resolutions! If you are having a hard time coming up with the perfect resolution for 2018, here are some ideas for policyholders.   “I resolve to review at least the declarations pages of all my policies.” Confirm that the insured’s name is legally accurate and spelled correctly and that its address is up to date. Make sure the policy isn’t about to expire without renewal or replacement, unless you’ve already decided you don’t need the coverage anymore. Check that the coverages you selected during the application or renewal process are included and that the limits…

READ MORE
0 0

02 Jan 2018 Sold! Close Your M&A Deal Confidently by Funding Post-Closing Liabilities Through Insurance

  When a company merges with another entity and becomes a single entity, or where a company is acquired by another organization, it is critical that both parties understand their insurance programs to ensure that transactional risks are properly covered. Companies sometimes do not give adequate consideration to the possibility of future claims following a merger or sale, and do not place into the deal a funding mechanism for post-closing claims.   This article offers some ideas to consider when planning an insurance solution to such claims as part of due diligence.   Tail policies cover actions taken before the closing   If you sit on the board of a company, the completion of an M&A deal does not insulate you from being sued for…

READ MORE
0 0

26 Dec 2017 Payback: Can Settlements of False Claims Act Claims Be Covered Under D&O Policies?

In recent years, corporations have seen a dramatic upswing in claims alleging violation of the federal False Claims Act (FCA). Dating from the Civil War, the FCA at one time was a sporadically used civil law that made government contractors liable for fraudulent claims on the government. After the law was reformed in the 1980s to make it easier for individuals to sue on behalf of the government, employees and shareholders of corporations transacting with the federal government began viewing it as a powerful whistleblower statute.   With the increase in lawsuits alleging violations of the FCA, insurance companies have become more aggressive in denying outright any obligation to pay settlements of FCA claims on the grounds that they seek uninsured restitution or disgorgement. Contrary…

READ MORE
0 0

19 Dec 2017 Who Gets Coverage? Cyber Insurance and Credit Card Risks: Will Coverage Apply After the P.F. Chang’s Denial?

Authored by Scott Godes & Devin Stone   When a retailer or merchant purchases a broad cyber insurance policy to cover hacks or breaches of its point of sale systems, it could be forgiven for thinking that its insurance policy would cover the costs of fraudulent charges and card replacement costs – which can represent the majority of damages generally incurred in a payment card incident – demanded by the payment processor or the card brands. But one recent decision in the Federal District Court of Arizona has held that certain cyber insurance policies do not provide coverage for those damages. P.F. Chang’s China Bistro, Inc. v. Federal Ins. Co., 2016 WL 3055111 (D. Ariz. May 31, 2016), appeal dismissed pursuant to settlement, No. 16-16141, Dkt….

READ MORE
0 0

15 Dec 2017 The Importance of Attention to Risk Allocation Provisions in Contracts

  A recent Indiana Court of Appeals decision illustrates the importance of having an overall risk allocation strategy in contracts where appropriate, and paying close attention to the language used to express that strategy, particularly when multiple contracts and parties are involved. Contractual risk allocation provisions previously have been a focus of this blog and webinars offered by our Insurance Recovery and Counseling Group.   In Performance Services, Inc. v. Hanover Ins. Co., 85 N.E.3d 655 (Ind. Ct. App. 2017), a school district submitted a property insurance claim to its insurer, Hanover, for damage that occurred during a construction project at a high school. Hanover paid nearly $700,000 to settle the claim. Hanover later asserted a subrogation claim against two contractors who had worked on…

READ MORE
0 0

27 Nov 2017 When Should an Accident be an Accident?

  Standard commercial general liability (CGL) insurance policies provide coverage for damages the policyholder is legally obligated to pay because of property damage or bodily injury caused by an “occurrence.” CGL policies typically define “occurrence” as an “accident.” Courts define an accident as “an unexpected happening without an intention or design.” Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1283 (Ind. 2006).   Simple, right? Unfortunately, a trilogy of cases from the Indiana Supreme Court have caused confusion on this issue, particularly where the policyholder may have errors and omissions (E&O) coverage.   In Harvey, a 16-year-old girl, Brandy, fell into a river and drowned after being intentionally pushed during an altercation with a boy, Toby. Toby admitted that he intended to push Brandy, but…

READ MORE
0 0

15 Nov 2017 Tenth Circuit Holds that Governmental Investigation of Potential Criminal Violations is Not a ‘Claim’ Under a D&O Policy

  D&O insurance policies are key components of a corporation’s risk transfer portfolio, purchased to protect it against lawsuits presenting significant liability exposure to itself and its key officers and directors.   In recent years, as an alternative to targeted formal litigation and discovery in uncovering corporate wrongdoing, federal and state governments have increasingly utilized informal investigations. This trend has created an expensive new financial exposure in the business world, particularly for large corporations, which are often the targets of such inquiries, and corresponding questions about how D&O insurance policies cover such costs. Although many D&O policies have evolved to explicitly protect policyholders from the costs of responding to government investigations, many have not been amended, forcing courts to determine whether the existing language is…

READ MORE
0 0

03 Nov 2017 Daubert Challenge Resolves Coverage Dispute on Summary Judgment

  Daubert challenges are common in commercial disputes and often have a powerful impact on litigation results. As established by Federal Rule of Evidence 702 and the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 589 (1993) certain requirements were set forth for expert testimony to be admissible, like the expert’s qualifications and whether the testimony is based on sufficient facts and reliable methods.   However, it is not often that you see a Daubert challenge resolve an entire insurance coverage dispute – let alone at the summary judgment phase. Yet, the recent case Varlen Corporation v. Liberty Mutual Insurance Company, No. 13-cv-05463 (N.D. Ill. Sept. 25, 2017), did just that.   This case involved a coverage dispute stemming from environmental contamination that hinged on whether the pollution…

READ MORE
0 0

17 Oct 2017 Insurance Carriers Exclude Color Matching Requirements from Policies

  The summer of 2017 saw a number of severe storms in the Midwest, with resulting insurance claims. As policyholders have made those claims, some have been surprised to see new provisions in their insurance contracts.   Things are not always black and white in insurance policies, especially when it comes to the impact of a Minnesota court decision that required insurers providing replacement cost coverage to reasonably match replacement siding. Since the Minnesota Supreme Court issued its opinion in Cedar Bluff Townhome Condominium Association, Inc. v. American Family Mutual Insurance Company, insurers have begun inserting language in their policies that expressly precludes the coverage requirement of matching based upon color, a change in product specifications, or other factors, in an attempt to circumvent this…

READ MORE
0 0

13 Oct 2017 Clock Keeps Running on Insurers’ Good Faith and Fair Dealing Obligations in California

  Imagine this: Your insurer denied coverage, forcing you to file a lawsuit to secure policy benefits. The insurer retains litigation counsel and begins engaging in unreasonable litigation conduct to attempt to force you to abandon the case and to justify the insurer’s prior denial of coverage. What should you do?   Don’t ignore the ongoing bad faith conduct that may be occurring during litigation. In fact, under California law, the implied covenant of good faith and fair dealing in every insurance policy does not cease upon the filing of litigation and instead continues unabated. The standard dates back to 1985, when, in White v. Western Title Ins. Co., the California Supreme Court held “[i]t is clear that the contractual relationship between insurer and the…

READ MORE