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BT Policyholder Protection Blog
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24 Mar 2015 THE TRUE VALUE OF INSURERS’ FLOAT

When a policyholder is forced to engage in several years of litigation over an insurer’s denial of property/casualty coverage, and ultimately prevails in proving the denial was erroneous, is it fair that the insurer is required to pay only what it owed in the first place? Should the insurer also be required to disgorge the true value of the money it kept during those years? Some states address this issue by imposing double-digit prejudgment interest rates on the insurer, thereby helping to reduce the insurer’s incentive to delay resolution of the claim. In other states, however, with relatively nominal prejudgment interest rates, the insurer is rewarded by delay.   In considering this issue, it’s important to understand the true value of a property/casualty insurer’s “float.”…

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20 Mar 2015 Recent Decision Determines Retail Displays May Qualify as ‘Advertisements’ Under CGL Insurance Policies

A recent decision interpreting insurance coverage for “advertising injury” under commercial general liability (CGL) insurance policies ruled that claims of allegedly infringing product displays can trigger the duty to defend.  Most businesses purchase CGL insurance as a key part of their liability insurance programs.  The current version of the typical form used by insurers in connection with CGL policies provides coverage for “advertising injury” caused by an offense committed in the course of “advertising” the insured’s goods, products or services.  That form typically defines “advertisement” as notice published to the general public at large or specific market segments for purposes of attracting customers or supporters.   A recent Illinois appellate court decision, however, has recognized that advertising injury coverage extends to certain product displays.  Specifically,…

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19 Mar 2015 Godes Quoted in Law360 Article: 5 Tips For Navigating ‘Wild West’ Of Cyber Policies

As more and more policyholders are turning to specialty cyber insurance products to protect themselves, it is important for insureds to get most of these policies.   Scott Godes, member of the Policyholder Insurance Recovery Group, shares tips for insureds in Law360’s article, “5 Tips for Navigating ‘Wild West’ of Cyber Policies.”  Scott’s tips included:   “Ideally, companies should secure coverage for both data breach incidents and business interruption. If there is a denial of service attack or your network goes down, will that be covered? Business interruption coverage is not necessarily included in a ‘standard’ cyberinsurance policy.”   Click here to read the full article and more what Scott has to say on cyber policies. Scott GodesScott N. Godes is a veteran trial lawyer…

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18 Mar 2015 Barnes & Thornburg Represents Simon Property Group in $200 Million Summary Judgment Victory

A Barnes & Thornburg team led by Andrew Detherage and Charles Edwards represented Simon Property Group in obtaining summary judgment awarding Simon $200 million in insurance coverage from 16 insurance carriers for flood damage to the Opry Mills mall in Nashville, Tennessee. The court rejected the insurers’ argument that a $50 million sublimit applied. Read the full announcement here. Charles EdwardsCharles P. Edwards is co-chair of the firm’s Policyholder Insurance Recovery and Counseling Practice Group, which exclusively represents policyholders in insurance claims and litigation. Mr. Edwards has worked with a wide variety of policyholders and their insurance claims regarding D&O insurance matters, complex commercial disputes, contract disputes, lost property, errors and omissions, and professional liability matters.More Posts – Website

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17 Mar 2015 Cybercrime: How Insurance Can Protect Your Company

Just when you thought that it could not get worse for companies in the context of cybersecurity and privacy issues … it does. Perhaps most significant, a court recently allowed banks to proceed against a retailer to pursue damages allegedly flowing from a cyberattack and data privacy incident involving payment card numbers. That same retailer disclosed hundreds of millions of dollars in losses as a result of the cyberattack and data privacy incident. Another retailer fell victim to a cyberattack and data privacy incident involving payment card numbers. Major entertainment businesses suffered cyberattacks, with one reportedly involving information about celebrities, corporate IP, and user names and passwords for social media accounts of the company. Distributed denial of service attacks (DDoS) are also on the rise….

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13 Mar 2015 Should Retailers Rely On CGL Coverage For Data Breaches?

In the past year, multiple cases have disputed whether commercial general liability insurance policies provide coverage for lawsuits related to data breaches and data privacy incidents. At least two matters are on appeal. The question of whether there is CGL coverage for those lawsuits is quite significant, particularly to retailers that have suffered data privacy incidents involving payment cards (i.e., credit and debit cards). CGL coverage can provide overlapping coverage with cyberinsurance policies, if not its own independent coverage, and defense costs under CGL policies frequently do not erode policy limits.   As a starting point, standard-form CGL policies provide coverage for all sums that an insured is liable to pay as damages because of bodily injury, property damage and personal and advertising injury. Bodily…

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06 Mar 2015 3 TIPS FOR COMPANIES EVALUATING INSURANCE COVERAGE IN MERGERS AND ACQUISITIONS

Insurance policies are a significant asset that must be considered in any merger or acquisition. As companies are acquiring or merging with another company in 2015, there are three insurance-related tips for companies to keep in mind.   Value insurance policies As companies consider whether to acquire another company and its liabilities, it is crucial to value the insurance policies that may cover these liabilities.   An acquiring company should request the target company’s insurance policies (both historic and current), loss history reports and pleadings and motions from any litigation involving the target company early in the transaction process. A target company may be entitled to coverage under its own insurance program or programs of additional companies that are or were part of the target…

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02 Mar 2015 Scott Godes Quoted in Advisen’s Cyber Risk Network Weekly Download

Scott Godes, from Barnes & Thornburg’s Policyholder Insurance Recovery Group, was recently quoted in Advisen‘s Cyber Risk Network Weekly Download’s article, “As technology expands, so does liability.”   As technology evolves, hackers are finding new ways to exploit vulnerabilities and organizations could face liability for failures in the security of their products or privacy violations due to them.   Insurers should “write broader policies,” to reflect the changing technological environment, according to attorney Scott Godes. “If you’re going to sell a policy to a company, you want to give them true peace of mind. Policies should be sufficiently elastic to encompass this changing landscape, rather than trying narrowly tailor what you’ll offer based on what you’ve seen in the past few years.”   Read more…

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26 Feb 2015 Five Tips for Building a Better Insurance Coverage Tower

Insurance coverage cases from 2014 have illustrated a disturbing trend: excess insurers are continuing to take aggressive coverage positions and are increasingly unwilling to let the scope of their coverage be dictated by the terms of the primary policy or the coverage decisions of the primary insurer. Thus, if there was ever a time when policyholders could afford to simply assume their primary and excess policies would operate together to provide an uninterrupted tower of coverage, that time has passed. Today more than ever, policyholders would be well advised to work with their brokers or experienced coverage counsel to carefully review the coverage forms of their excess policies to try to identify and eliminate potential gaps between layers and shortcomings in the excess coverage.  …

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24 Feb 2015 Scott Godes Quoted in Business Insurance

Scott Godes, from Barnes & Thornburg’s Policyholder Insurance Recovery Group, was recently quoted in Business Insurance’s article, “Increased Cyber Losses Means More Insurance Coverage Disputes.”   The article states that companies seeking coverage for data breaches under general liability policies often have turned to the personal and advertising injury part of the forms, and disputes have centered on whether a breach constitutes a “publication” that violated a right to privacy.  Beyond disputes regarding coverage under general liability policies for cybersecurity claims, lawyers anticipate coverage litigation arising under cyberinsurance policies as well.   Many of these lawsuits are litigated off the radar, and have not drawn widespread attention.  Some might suggest that cyberinsurance carriers probably want it that way.  Scott, who has litigated the scope of…

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