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BT Policyholder Protection Blog
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15 Jan 2015 Ken Gorenberg to speak at upcoming Strafford live webinar A live 90-minute CLE webinar with interactive Q&A

Ken Gorenberg, from Barnes & Thornburg’s Policyholder Insurance Recovery Group, will be speaking at an upcoming Strafford live webinar, “Drafting Enforceable Limitation of Liability Clauses in Business Contracts,” on Tuesday, March 3, 1-2:30 p.m. EST.   Ken will be a member of a panel that will provide guidance to business counsel for drafting and negotiating enforceable limitation of liability clauses in business contracts.   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 liability clause? What is the interplay between limitation of liability clauses and indemnification provisions in business agreements?     We hope…

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13 Jan 2015 Your Liability Insurer Agreed to Defend? Don’t Relax Yet.

You tendered a lawsuit to your liability insurer. You cooperated with its investigation of the claim, and maybe you had to challenge an initial denial. Now, you have a hard-earned letter from your insurer agreeing to defend the suit. This is a significant milestone in managing your risk for the liability, but the need for vigilance to maximize your insurance benefits and protect your rights is far from over. Whether there are thousands or millions at stake, policyholders must remain vigilant and active, to ensure they are receiving maximum benefit from their coverage.   Even after your insurer agrees to defend, numerous disputes may still arise that can affect whether you maintain control over decisionmaking, whether the insurer pays everything it owes under the policies,…

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09 Jan 2015 2014 Year in Review: A National Insurance Recovery Webinar

Mark your calendar and join us for a national insurance recovery webinar on Tuesday, Jan. 27 at 3 p.m. (Eastern). The Barnes & Thornburg insurance recovery attorneys will review 2014’s major legal developments and trends in insurance coverage and recovery. You will learn more about how the events of the past year affected:   Directors and Officers (D&O) coverage Excess umbrella liability coverage Coverage for business torts and consumer false advertising claims Coverage for environmental contamination claims Cyber liability and data breach   BARNES & THORNBURG SPEAKERS             Charlie Denton   Bob Devetski   Charlie Edwards   Scott Godes            Ken Gorenberg   Chris Lynch   David Schack You won’t want to miss this lively discussion of…

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06 Jan 2015 Scott Godes quoted in, “Insurers cover fraction of costs in Catholic dioceses’ clergy abuse cases”

Scott Godes, a partner with Barnes & Thornburg, was quoted in Business Insurance’s article, “Insurers cover fraction of costs in Catholic dioceses’ clergy abuse cases.”   The article discusses the role of insurance coverage in the context of clergy abuse cases.  The author posits that liability insurers have paid only a fraction of the U.S. Catholic dioceses’ costs in clergy abuse cases. Nonetheless, insurance companies have paid, or been ordered to pay, millions of dollars for those claims.  Legal wrangles have arisen, among other issues, over the number of occurrences in clergy abuse cases and the allocation of losses among the decades of policies potentially involved.   Godes, who has worked on multiple cases involving insurance for clergy abuse cases, is quoted saying, “There’s a…

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05 Jan 2015 Color Match Arrives (Again) in Minnesota

Last month, the Minnesota Supreme Court issued an opinion addressing an insurer’s obligation to match replacement materials after homes suffered storm damage. The opinion in Cedar Bluff Townhome Condominium Association, Inc. v. American Family Mutual Insurance Company, –N.W.2d–, No. A13-0124, 2014 WL 7156914 (Minn. Dec. 17, 2014) stemmed from a hail storm in October 2011 that damaged buildings in the Cedar Bluff townhome neighborhood.   Cedar Buff sought coverage for complete replacement of the buildings’ siding. However, American Family (AmFam) took the position that the policy only required replacement of the individual panels actually damaged by the storm, even though the replacement panels would be slightly darker or lighter than the original panels. The district court granted summary judgment to AmFam, finding that the policy…

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23 Dec 2014 Don’t Overlook Insurance as a Source of Protection from Losses Caused by Fraud or Theft

Widely cited reports and estimates find that employee theft and embezzlement causes billions of dollars in losses for businesses annually. The approaching new year – often a time for insurance renewals – offers businesses the opportunity to take a fresh look at whether they are sufficiently covered for these potentially devastating losses. Insurance frequently can be the most promising source of recovery after fraud or theft losses given that efforts to recover stolen funds from the wrongdoer may be futile. Coverage can be available from a variety of sources. Standard fidelity policies, for example, provide coverage for losses caused by an employee’s dishonest or fraudulent conduct. Financial institution coverage may reimburse losses caused by fraudulent conduct occurring in the course of obtaining loans or funds…

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19 Dec 2014 Insurers Ordered to Contribute $30 Million Toward Overdraft Settlement

Earlier this week, a decision from the United States District Court for the District of Minnesota required Indian Harbor Insurance Co. and Ace American Insurance Co. to cover $30 million of U.S. Bancorp’s $55 million class settlement of overdraft fee litigation and related defense costs. In the coverage suit, U.S. Bancorp sought coverage related to the settlement of three class actions alleging that the bank changed the order of customers’ debit card transactions from highest to lowest, rather than processing them chronologically, so that it could maximize overdraft fees. In defense of the suit, the insurers argued that coverage was not afforded under the respective policies because the underlying suits sought restitution, which the policies expressly excluded from the definition of loss.   In granting…

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18 Dec 2014 COVERAGE FOR “DISPARAGEMENT”: A POWERFUL TOOL FOR TRIGGERING THE DUTY TO DEFEND IN BUSINESS DISPUTES

By the time a business dispute has evolved into litigation, the relationship between the parties has often become acrimonious. In addition to a claim for breach of contract, interference with economic relations or unfair competition, the plaintiff may also allege that the defendant made false or disparaging statements to third parties—customers, competitors, financiers—that harmed the reputation or business of the plaintiff. The existence of even a single allegation of such disparagement within a complaint is often sufficient to trigger a duty to defend by the insurer of the defendant business. If your business is on the receiving end of a lawsuit, it is critical to examine the lawsuit for such allegations of disparagement and to consider tendering the lawsuit to your general liability insurer to…

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09 Dec 2014 The Other Cyber Shoe Has Dropped – What Does that Mean for Your Insurance Program?

Just when you thought that it could not get worse for companies in the context of cybersecurity and privacy issues…it does. The end of 2014 has been brutal. Perhaps most significant, a court 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 a 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 allegedly 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…

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05 Dec 2014 Wasteland: How Old Insurance Policies Can be Used for Cleanup Costs

This month’s issue of National Geographic includes an interesting article and interactive map regarding the status of investigation and clean-up of Superfund sites throughout the country. See Paul Voosen, “Wasteland”, National Geographic (Dec. 2014). NG reports that treatment of site contamination is ongoing but incomplete at more than 1,160 sites, and another 95 sites remain uncontrolled. NG observes that “Money remains a constant problem” because the Superfund is nearly depleted. The Superfund taxes on crude oil and chemicals expired in 1995, and so the program has had to increasingly rely on general tax appropriations and recovery from responsible parties.   The NG article’s scope was limited to Superfund sites, and so did not address the numerous additional “Brownfield” sites around the nation that are not…

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