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BT Policyholder Protection Blog
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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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26 May 2015 Scott Godes to Speak at Upcoming ACI Cyber & Data Risk Insurance Conference

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, will be speaking at an upcoming ACI Cyber & Data Risk Insurance Conference, Sept. 30 – Oct. 1.   Scott’s presentation, “Credit Card Exposures and What to Expect from the Implementation of Chip and Pin Technology,” will provide more information on: How major credit card brands are dealing with increased fraud Reducing security threats with the new chip and pin technology Point of sale exposure for companies that accept credit cards and more Insurance coverage issues for these exposures   The Cyber & Data Risk Insurance conference provides maximum opportunities to learn from and network with underwriters, brokers, claims managers and industry leaders, helping you keep pace with the ever-changing cyber…

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18 May 2015 Settlement Means Policyholders Will Have to Wait for Clarification of Proper Exhaustion Issue

It looks like policyholders will have to wait for any further answers to the question of whether and when a policyholder must show “proper” exhaustion of underlying policy limits in order to access its excess coverage.   That question was teed up for consideration by the Eighth Circuit Court of Appeals in H.B. Fuller Company v. United States Fire Insurance Company. But in a letter filed with the 8th Circuit last week, the parties informed the court that they had agreed to settle the case, pending execution of the settlement by all of the parties. According to that letter, once the settlement agreement is signed, the parties will dismiss their respective appeals.   The settlement means the 8th Circuit won’t address whether, and under what…

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12 May 2015 Will Your Tech E&O Insurance Cover Your Retention of Someone Else’s Electronic Data?

Court Offers Narrow Interpretation of Cyberinsurance. If you’ve been paying attention to the news or any of your social media channels, you’ve probably heard people talking about cyberinsurance and that your company needs it. You might even have been told that cyberinsurance is a panacea for all risks related to cybersecurity and data privacy. To date, there has been very little publicly available litigation about the meaning of cyberinsurance policies. One federal court changed that with a decision issued on May 11, 2015, in Travelers Property Casualty Co. of America v. Federal Recovery Services, Inc., No. 2:14-cv-170 TS, slip op. (D. Utah May 11, 2015). Unfortunately, the decision ruled against the policyholder and offered a narrow interpretation of the cyberinsurance policy involved in the dispute….

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05 May 2015 Can Business Owners Get Insurance to Cover Losses from Riots, Vandalism and Civil Unrest?

The recent civil unrest in Baltimore, just like the mayhem that took place in Ferguson, Missouri, last year, is a stark reminder that we live in troubled times. While the events that lead to such occurrences are varied, and the societal issues that influence them can be widely debated, one thing is clear – the damage and destruction left in their wake is devastating.  Shops burn, glass storefronts are shattered, inventory is stolen and valuable property is otherwise vandalized. Luckily for business owners both directly and indirectly affected by these unfortunate events, they can and should turn to their business property insurers to cover what, in many instances, can be staggering losses.   First steps for obtaining coverage for losses from riots, vandalism and civil…

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01 May 2015 Policyholder Rights Under Seige in Illinois

A bill pending in the Illinois Senate threatens to undermine if not overturn two fundamental rights of policyholders under a policy with the duty to defend: (1) the right to a complete defense of an entire claim insured if any allegation is actually or potentially covered and (2) the right to independent counsel if there is a conflict of interest between the insurance company that pays for the defense and the policyholder being defended. Both of these rights have been established for decades by courts in Illinois and virtually every other state. See, e.g., Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 197-98, 355 N.E. 2d 24 (Ill. 1976). Illinois Senate Bill 1296 threatens to turn these bedrock principles into quicksand.   First, the bill…

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