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BT Policyholder Protection Blog
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15 Dec 2015 Make Sure You Know Which State’s Law Applies to Your Coverage Claim

It is a situation we have seen time and again, including in several recent matters: a policyholder headquartered in State A is sued by a claimant alleging injury at a location the policyholder owns in State B. In the same circumstances and under the same policy language, the law of State A would require the carrier to cover the suit but the law of State B would not. This drastic difference in outcome is common due to the sometimes vast differences in coverage law from state to state. The threshold question of which state’s law applies often makes all the difference between coverage and no coverage.   So, if the policyholder wants the law of State A to apply, should it sue its carrier in…

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07 Dec 2015 Is the “Ancient Documents” Hearsay Exception Going to be Ancient History in 2016 and What Impact Will it Have on Proving Missing Insurance Policies?

Next year, we may see the end of the hearsay exception for “ancient documents” found in Federal Rule of Evidence 803. Rule 803(16) has long held that “a statement in a document that is at least 20 years old and whose authenticity is established” is not excluded by the hearsay rule. This exception is often used in the insurance context when trying to prove the existence and terms of old, missing liability policies when a company has a latent claim. It appears the push to eliminate the ancient documents hearsay exception may go hand in hand with the rise of e-discovery and recent amendments to the Federal Rules of Civil Procedure to address e-discovery issues that took effect on Dec. 1.   However, when a…

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20 Nov 2015 Barnes & Thornburg Bronze Sponsor of the 2015 ABA Women in Litigation Conference Kara Cleary and Andrea Warren Provide Some Key Takeaways for Policyholders Discussed at the Conference

Barnes & Thornburg was proud to be a bronze sponsor at this year’s ABA Women in Litigation Conference held in Chicago from Nov. 11-13. Kara Cleary and Andrea Warren of the firm’s Insurance Recovery and Counseling Practice Group attended the conference, which featured a host of excellent panels ranging from hot topics in insurance coverage to product liability litigation, as well as jury selection and trial tips. A large focus of the conference also was dedicated to empowering female litigators in the courtroom and at their firms. Some key takeaways include:   the rise of privacy claims and types of policies that can respond; the rise of false claims act suits and potential coverage issues relating to the same; and jury selection tips for insurance…

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16 Nov 2015 2.4 Million Reasons to Monitor Claim Costs: Five Lessons From a Barnes & Thornburg Victory

Employers should regularly and carefully monitor the cost of claims even if those claims are handled by a major insurance company or third-party administrator. That is the key takeaway from the Nov. 10, 2015, decision by the U.S. Court of Appeals for the 11th Circuit and the earlier decision by a federal magistrate who presided over a bench trial and awarded $2.4 million to our client Georgia Operators Self Insurers Fund (Georgia Fund) for claims mishandling by its third-party administrator PMA Management Corp. That and other lessons are explained below.   Lesson #1: Monitor Claim Costs and Claim Handling   The Georgia Fund is a not-for-profit entity formed by most McDonald’s franchise owners in Georgia so they can self-insure their workers compensation risks. From 2008…

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10 Nov 2015 Emerging & Complex Insurance Claims Conference

It’s imperative to stay on top of developing complex coverage issues — and there are several to keep an eye on right now. The Emerging & Complex Insurance Claims Forum gives in-house and outside counsel and insurance company and policyholder professionals an edge with the latest insights on hot-button topics.   Join Barnes & Thornburg’s Scott Godes, conference co-chair, Feb. 24-26, 2016, to learn more about:   Medical marijuana D&O liability Drones Cyber liability Social media Product liability claims Additional insureds Construction claims SIRs Alternative dispute resolutions and more   Register today and get $200 off the registration fee by using the code: Barnes16.   Click here to learn more and to register. Scott GodesScott N. Godes is a veteran trial lawyer with experience in insurance coverage…

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09 Nov 2015 Scott Godes Quoted in Business Insurance “Cyber Security Bill Passes Senate Muster”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in a Business Insurance article, “Cyber security bill passes Senate muster.”   In a 74-21 vote in October, the U.S. Senate approved The Cybersecurity Information Sharing Act of 2013. It protects businesses against liability if they share information with governmental agencies.   The good thing about the Senate bill is “it allows for comparing notes and provides liability protection for companies” that share risk information and “fosters a sense of working together among companies,” said Scott.   Read the full article here. Scott GodesScott N. Godes is a veteran trial lawyer with experience in insurance coverage matters and technology issues. He is a partner in Barnes & Thornburg…

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03 Nov 2015 Scott Godes Quoted in Law360 Article, “How to Navigate the Cloudy Skies of Drone Insurance”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in a Law360 article, “How to Navigate the Cloudy Skies of Drone Insurance.”   The commercial drone industry has opened up a world of business opportunities – as well as often misunderstood risks and questions about insurance coverage. Scott discusses insurance coverage for the potential liabilities drone operators face. In response to a question about an exclusion in CGL policies, “One argument as to why the aircraft exclusion shouldn’t apply is that it was written in the context of commercial aircraft. It almost certainly is not within the reasonable expectations of an insured that an exclusion for cars, boats, and airplanes would eliminate coverage for drones. I would…

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28 Oct 2015 You Snooze; You Lose: When The Carrier’s “Investigation” (Read: Delay) Breaches The Duty To Defend

Earlier this month, a California federal court issued a stern warning to liability carriers: failing to provide an immediate defense forfeits your right to control the policyholder’s defense, including any right to select counsel, and, once forfeited, the right to control irrevocably vests with the policyholder. The carrier cannot regain control, even if it reimburses pre-acceptance defense fees. Travelers Indem. Co. v. Centex Homes, Case No. 11-CV-03638-SC (N.D. Cal. Oct. 7, 2015).   Carriers and policyholders have long been engulfed in the battle as to when a carrier’s delay (usually couched in terms of an “investigation”) leads to forfeiture of the right to control; and, when it does, whether the carrier may re-gain control by paying pre-acceptance defense fees. Policyholders are all too familiar with…

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27 Oct 2015 Scott Godes quoted in Law360 Article, “Privacy ‘Bill of Rights’ to Boost Demand for Breach Coverage”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in a Law360 article, “Privacy ‘Bill of Rights’ to Boost Demand for Breach Coverage.”   The article highlights the recently introduced privacy bill of rights and changes to the regulatory environment that could change the cyberinsurance marketplace for  policyholders.   Scott is noted saying, “Cyberinsurance remains the Wild West of insurance. But with the changing regulatory environment, we’re starting to see changing prices and the market opening up and tightening up.”   Read the full article here. Scott GodesScott N. Godes is a veteran trial lawyer with experience in insurance coverage matters and technology issues. He is a partner in Barnes & Thornburg LLP’s Washington, D.C., office and…

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08 Oct 2015 Regulation S-P Violation: Are You Prepared For A Cyber-Security Breach?

On Sept. 22, 2015, the Securities and Exchange Commission (SEC) announced the first violation by a registered investment advisor of the so-called Safeguards Rule (Regulation S-P) pertaining to the protection of personally identifiable information from cyber-attack. This is the first instance of the SEC enforcing Regulation S-P against an investment advisor.   The Regulation, broadly speaking, requires broker-dealers, investment advisers and other financial firms to protect confidential customer information from unauthorized release to unaffiliated third parties. Included in Regulation S-P is the “Safeguard Rule” (Rule 30(a)), which requires financial institutions to, among other things, adopt written policies and procedures reasonably designed to protect customer information against cyber-attacks.  This raises the question:  Are you prepared for a cyber-attack (and the attendant liability)?   In its findings,…

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