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BT Policyholder Protection Blog
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15 Jul 2015 Five Tips: Insurance Fundamentals for In-House Counsel

Many of our posts address specific issues for risk managers and in-house attorneys with insurance coverage experience. Recognizing that some in-house lawyers are relatively new to the insurance world, we thought some may appreciate a summary of some of the fundamental issues in insurance coverage. Today, we offer five sets of distinctions between related concepts at the heart of many insurance matters:   First-Party vs. Third-Party Coverage   First-party coverage pays you for loss or damage to your own property. For example, if your plant suffers a fire, you may want to make a claim under the property policy for damage to the building, equipment and machinery. The same policy may include business interruption coverage that can replace some of the profits lost while the…

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14 Jul 2015 Scott Godes Quoted in Law360 Article, “4 Insurance Takeaways from Lloyd’s Cyberattack Report”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in Law360’s article, “4 Insurance Takeaways from Lloyd’s Cyberattack Report.”   Lloyd’s of London recently co-wrote a report predicting that a major cyberattack on the East Coast could trigger $70 billion in covered insurance claims. The article examines four takeaways for insurers and policyholders.   Godes noted that the report admits there could be coverage for cyber-based events in multiple types of insurance policies.  He also suggests that the insurance industry should introduce a cyberinsurance policy parallel to a commercial package policy, providing coverage for all types of losses resulting from a cyber event.   He is quoted multiple times in the article.  In one, he is quoted…

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13 Jul 2015 Texas Supreme Court to Decide Key Coverage Question on Policyholders’ Rights

In recognition of the opening of our Dallas, Texas, office, this week’s blog focuses on an important Texas Supreme Court decision anticipated by policyholders and insurers to define the manner in which policyholders may resolve disputes with claimants after an insurer wrongfully denies a defense and coverage.   Seger, et al. v. Yorkshire Ins. Co., Ltd. And Ocean Marine Ins. Co., Ltd. (Case No. 13-0673)  is currently pending before the Texas Supreme Court for decision.  Oral argument has been set for Sept. 15, 2015.  Amicus curiae briefs have been filed by the American Insurance Association, the Property Casualty Insurance Association of America, Lloyd’s America, Inc., the Texas Insurance Coverage League and the Texas Civil Justice League.  Both sides of this dispute have weighed in heavily on…

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06 Jul 2015 Scott Godes Quoted in Law360 Article, “4 Cyberinsurance Battlegrounds to Watch”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in Law360’s article, “4 Cyberinsurance Battlegrounds to Watch.”   The article examines four key battlegrounds to watch when seeking coverage under cyberinsurance policies.  Scott was quoted multiple times about exclusions and limitations within cyberinsurance policies.  One of Scott’s quotes related to an insurance company’s recent denial of coverage based on alleged security requirements within a cyberinsurance policy.  Scott is quoted saying,   “The idea that an alleged failure to meet some security requirement would result in the exclusion of coverage should be seen as offensive. It puts a policyholder in a spot where, every time a claim is made, there is a trapdoor to coverage.”   Scott gave…

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26 Jun 2015 CONSENT JUDGMENTS: WHEN AN INSURER FAILS TO DEFEND

Your business has been sued for negligence, but the complaint also references allegedly intentional acts. The potential liability for the company could be catastrophic. This is exactly why your company has liability insurance and you tender it to the insurance carrier. Rather than accept the defense, the carrier denies, pointing to the intentional acts exclusion in the policy. The business spends months fighting the claims, but is unsuccessful in getting the claims dismissed, and doesn’t have the financial resources to fight a second-front battle with its insurance carrier. It is now the eve of trial and you are concerned that there is a likelihood the jury could find the company liable. Furthermore, the company does not have sufficient funds to pay a settlement, much less…

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17 Jun 2015 Cyber Insurance is Only for Retailers, Right?

News about cybersecurity and cyberattacks has changed. It seems that cyber criminals have broadened their focus beyond just data breaches involving personally identifiable information (PII) or protected health information (PHI). Now, a significant percentage of companies worldwide reportedly are facing attacks designed to shut down their computer networks, to delete data or control their equipment. This changing focus of cyber criminals makes clear that even though retailers, healthcare organizations, and banks have received a lot of media attention in this arena, all companies need to be prepared for a cyberattack. Diligent preparation includes not only implementing safeguard measures and response plans, but should also include an evaluation of your company’s insurance program to determine if you have sufficient coverage for your company’s potential cyber risks….

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15 Jun 2015 Indiana Supreme Court Sets Up Future Coverage Battles Over Allocation, Defense Costs

  The Indiana Supreme Court recently declined to accept jurisdiction over a major insurance coverage dispute, leaving intact an Indiana Court of Appeals opinion that may now become a landmark decision on a number of insurance coverage issues in Indiana. The Supreme Court’s declination of jurisdiction over Thomson, Inc. v. Ins. Co. of N. America, 11 N.E.3d 982 (Ind. Ct. App. 2014), on May 15, could have far-reaching effects that are helpful to policyholders in some respects, and potentially contrary to policyholders’ interests in others.   First, the good:   The Supreme Court left intact the Court of Appeals’ adoption of a policyholder-friendly test for determining whether defense costs are reasonable and necessary, and thus owed by the carrier as part of its duty to…

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11 Jun 2015 INFRINGEMENT OF “SLOGAN” TRIGGERS THE DUTY TO DEFEND

In recent years, insurers have modified the coverage for “personal and advertising injury” in the standard form used in commercial general liability coverage to exclude claims for trademark infringement.  However, the coverage form continues to include “Infringing upon another’s copyright, trade dress or slogan in your ‘advertisement’” within the definition of “personal and advertising injury.” In lawsuits involving trademark infringement and related claims, policyholders should carefully examine the complaint to determine if the potential for infringement of “slogan” exists, thereby triggering a duty to defend the case notwithstanding any exclusion for trademark infringement.   The term “slogan” itself is not defined in the personal and advertising injury coverage form. Thus, courts will look to the term’s ordinary and common usage, and in that context, “slogan”…

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05 Jun 2015 Are we seeing a revival in Michigan environmental insurance coverage?

The U.S. District Court for the Western District of Michigan, on Feb. 3, 2015, ruled in favor of a policyholder seeking insurance coverage for “Superfund” cleanup costs:  Decker Manufacturing Corp. v. Travelers Indemnity, No. 1:13-CV-820. The court rejected the insurer’s pollution exclusion defense:   “Under this approach, the relevant discharge is the discharge from the Landfill into the environment rather than the placement of waste into the Landfill.  Travelers has not met its burden of showing that the pollution exclusion applies.  Accordingly, Travelers’ Motion for Summary Judgment on the pollution exclusion will be denied.  Moreover, because there is no evidence to suggest that Decker was on notice of any problems at the Landfill or that Decker ‘intended or expected’ that its wastes would be discharged…

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28 May 2015 Management of Insurance Claims Webinar – Now Available for Viewing

In April, Barnes & Thornburg insurance recovery attorneys presented on best practices in managing insurance claims. The webinar was recorded and is now available for viewing.   Featured speakers discussed:   The Importance of Choice of Law – Adam Hollander This overview identified several fundamental variations in substantive state coverage law, different choice of law approaches throughout the country, and choice of law issues that all policyholders should consider to optimize their chances for a successful recovery.     Top Ten Tips for Pre-Litigation Coverage Practice – Andrea Warren This assessment highlighted the importance of initial communication with your carriers and provided best practices for getting your claim paid without litigation—or improving your position if coverage litigation is necessary.     Strategies for Creating a…

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