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BT Policyholder Protection Blog
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10 Apr 2015 Indiana Supreme Court Hears Oral Argument on Significant Allocation Issue

Does an insurance carrier have to pay 100 percent of a settlement or judgment resolving a latent injury claim, or can it get away with paying just a fraction of the total cost? That is the issue currently under consideration by the Indiana Supreme Court.   On April 2, 2015, in Thomson, Inc. v. Ins. Co. of N. Am., Case No. 49A05-1109-PL-470, the Indiana Supreme Court heard oral argument on an oft-disputed issue between carriers and policyholders over how indemnity costs are to be allocated in long-tail lawsuits alleging latent injuries incurred over numerous years or decades (for example, environmental or toxic tort suits). The outcome of this dispute could have a profound impact on the scope of the coverage available to policyholders for these…

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02 Apr 2015 5 Tips for Evaluating Cyberinsurance Policies

Scott Godes, partner and member of the firm’s Policyholder Insurance Recovery Group, recently authored an article for Association for Financial Professionals titled, “5 Tips for Evaluating Cyberinsurance Policies.”   Scott noted that as more and more companies are under cyberattack, many are reconsidering changing their insurance budget to include cyberinsurance.  The article, aimed at finance professionals, discusses recent developments in cybersecurity and data privacy.   He also gave tips for evaluating cyberinsurance policies.  Some of the tips included:   Reevaluate whether your organization is carrying sufficient limits. Keep in mind that defense costs usually erode the limits of a cyberinsurance policy. When lawyers are called upon to defend against claims in developing areas of law, legal bills add up quickly. After the company pays defense…

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26 Mar 2015 Ken Gorenberg and Leslie Weiss to speak at upcoming Strafford live webinar A 90-minute CLE webinar with interactive Q&A

Two Barnes & Thornburg partners, Ken Gorenberg from the Policyholder Insurance Recovery Group and Leslie Weiss from the Corporate Department, will be speaking at a Strafford live webinar, “Drafting Enforceable Limitation of Liability Clauses in Business Contracts,” on Tuesday, April 14, from 1 – 2:30 p.m. EDT.   Ken and Leslie will be members of a panel that will provide guidance to business counsel for drafting and negotiating enforceable limitation of liability clauses in business contracts. This is an encore presentation with live Q&A.   The panel will review key issues such as: What considerations should business counsel take into account when drafting and negotiating limitation of liability provisions in contracts? What enforceability challenges do parties commonly face when seeking to invoke a limitation of…

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25 Mar 2015 Scott Godes Quoted in Cyber Risk Network’s article, “10 million settlement with consumers a ‘good deal’ for Target, insurers”

Scott Godes, partner and member of the firm’s Policyholder Insurance Recovery Group, was recently quoted in Cyber Risk Network’s article, “10 million settlement with consumers a ‘good deal’ for Target, insurers.”   In a recent class-action lawsuit, Target Corp and consumers have agreed to a $10 million settlement after a data breach during 2013.  Consumers now will have to demonstrate harm by documenting direct losses from the breach, such as cost to replace identification.   Among other things, Scott is quoted saying, “The settlement should do nothing to consumers’ ability to prove harm and/or damages. The case never made it to a stage where there was showing of actual harm. At this point, there were only allegations of harm. The fact the case settled should…

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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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