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BT Policyholder Protection Blog
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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…

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29 Aug 2017 Back to School: Time to Revisit the Basic Principles of Business Interruption Coverage

  This time of year is always a good reminder to brush up on basic insurance coverage principles relevant to your industry. Business interruption risk poses a problem for every company, no matter its size or industry; making sure your company understands what coverage it has to protect against this risk is important.   After doing a presentation on business interruption coverage with Grant Thornton’s Forensics Advisory Services Group this summer, I was reminded how complex a claim for business interruption can be and the value that is added by having a good forensics accountant and coverage counsel aiding in the claims process.   Generally speaking, business interruption and extra expense coverage provides for lost revenues and expenses spent to restore your company. This type…

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23 Feb 2017 Insurance Coverage Basics for Cloud Computing: 3 Cs to Remember

  Authored by Scott Godes and Kara Cleary   The privacy and security of data continues to be a hot button issue for companies, with privacy and security events frequently in the news. What about for businesses that have moved to the cloud? Whether you are a cloud provider or a cloud user, data breaches and denial of service attacks are real risks. Have you considered whether and how your insurance program will respond to those risks? Here are three terms to remember that may help simplify some of the coverage issues:   Computer System: Some insurance policies, which provide coverage for cybersecurity and privacy risks, have coverage that could turn on whether there was an impact to your “computer system.” A best practice is…

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28 Dec 2016 Have You Made Your List and Checked It Twice? Insurance Year-End Tips for Companies

  With the holiday season upon us, you may want to consider taking time to reflect on 2016 to better determine your insurance needs for next year.   Here are some questions to consider:   How many claims did your company have in 2016? Were the claims consistent with known risks and past claim trend data? Did you have any unexpected losses, and if so, are additional claims likely? Did your business create new lines of products or expand into new markets? Do you need to increase your policy limits or reduce your deductibles? Have you considered being self-insured up to a certain level in order to better control your claims handling? Have you carefully reviewed your vendor contracts to determine if indemnification clauses provide…

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11 Oct 2016 When the Damage is Done Are You Prepared to Litigate Against Your Insurance Company?

In the wake of Hurricane Matthew, there will certainly be a wave of claims and possible denials of coverage by insurance companies.  Before the storm hit, we heard a great deal about “preparedness” for the storm.  But, how prepared is your company if it has to litigate a claim against its insurance company?  Litigation against any party is often a costly and lengthy process.  Insurance coverage disputes are no different and often involve more aggressive tactics by the insurance company early in the case.   Here are some best practices for companies facing insurance coverage denials:   Re-review the denial letter and consider whether litigation is the best strategy You may want to consider other tactics against the insurance company, like using renewal time or…

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01 Aug 2016 Business Insurance 101: Back to the Basics

  Insurance coverage cases often involve complex or unusual issues. Similarly, blogs and insurance newsletters typically revolve around breaking decisions or new trends in the market. In this realm, insurance basics and best practices can be overlooked. Because insurance policies and insurance law can be murky for those who don’t deal with it frequently, I recently gave a presentation about the basics of insurance for businesses. This post summarizes some high level points that we discussed.   What are common types of policies for companies? Commercial general liability, products liability, property, directors & officers, professional liability, employment practices liability, crime and cyber, to name a few. A company should work closely with its broker to identify the types and limits of coverage it should consider…

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12 May 2016 Georgia Supreme Court Expands Scope of Absolute Pollution Exclusion

The Georgia Supreme Court recently addressed and reversed the Georgia Court of Appeals on the question of whether lead paint is a “pollutant” for purposes of an exclusion within a commercial general liability.   In a recent case, Georgia Farm Bureau Mutual Insurance Company v. Smith, a tenant sued her landlord for personal injury after her daughter ingested lead-based paint found in the home.  The landlord’s commercial general liability insurer brought a declaratory judgment action to determine whether the personal injury claim was excluded under the policy’s absolute pollution exclusion.  See 2016 WL 1085397 (Ga. Mar. 21, 2016).   The policy defined “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”  Id. at…

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15 Mar 2016 Capitalizing on Sites with Environmental Property Damage: Is there really a pot of gold at the end of that rainbow?

  When a company learns that it has a site suffering from environmental property damage, “profit” is the last thing on that company’s mind. Rather, the terms that company is more likely thinking about in this situation are those like losses, risk, environmental agency scrutiny, costly and lengthy remediation, bad press, etc. A recent article in the New York Times titled “Turning Polluted Properties Into Profits” takes an alternative view of the value of sites with environmental property damage.   The article discusses a new business model and group of investors who are actively seeking out these properties in order to buy them, clean them up, then sell them for a profit. However, as the article noted: “insurance is key.”   Finding insurance to help…

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07 Dec 2015 Is the “Ancient Documents” Hearsay Exception Going to be Ancient History in 2016 and What Impact Will it Have on Proving Missing Insurance Policies?

Next year, we may see the end of the hearsay exception for “ancient documents” found in Federal Rule of Evidence 803. Rule 803(16) has long held that “a statement in a document that is at least 20 years old and whose authenticity is established” is not excluded by the hearsay rule. This exception is often used in the insurance context when trying to prove the existence and terms of old, missing liability policies when a company has a latent claim. It appears the push to eliminate the ancient documents hearsay exception may go hand in hand with the rise of e-discovery and recent amendments to the Federal Rules of Civil Procedure to address e-discovery issues that took effect on Dec. 1.   However, when a…

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20 Nov 2015 Barnes & Thornburg Bronze Sponsor of the 2015 ABA Women in Litigation Conference Kara Cleary and Andrea Warren Provide Some Key Takeaways for Policyholders Discussed at the Conference

Barnes & Thornburg was proud to be a bronze sponsor at this year’s ABA Women in Litigation Conference held in Chicago from Nov. 11-13. Kara Cleary and Andrea Warren of the firm’s Insurance Recovery and Counseling Practice Group attended the conference, which featured a host of excellent panels ranging from hot topics in insurance coverage to product liability litigation, as well as jury selection and trial tips. A large focus of the conference also was dedicated to empowering female litigators in the courtroom and at their firms. Some key takeaways include:   the rise of privacy claims and types of policies that can respond; the rise of false claims act suits and potential coverage issues relating to the same; and jury selection tips for insurance…

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