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11 Jun 2018 Is a Settlement of a Restitution Claim Covered If Your Policy’s Ill-Gotten Gains Exclusion Applies Only In the Event of a Final Adjudication?

Can liability insurance insure a policyholder’s legal obligation to return to a third party amounts that the policyholder was never permitted to obtain in the first place? Insurance carriers would cite comments from Judge Posner, of the Seventh Circuit Court of Appeals: “[a]n insured incurs no loss within the meaning of the insurance contract by being compelled to return property that it had stolen, even if a more polite word than ‘stolen’ is used to characterize the claim for the property’s return.” In this vein, insurance company personnel and their coverage counsel frequently take the position that if liability policies exclude from covered “Loss” “matters which are uninsurable” under applicable law, that encompasses a judgment of liability for restitution of amounts which the policyholder was…

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24 May 2018 The Cloud: Selected Benefits, Risks, and Insurance Coverage Issues – Part 2

This article is the second part in the series, The Cloud: Selected Benefits, Risks, and Insurance Coverage Issues. It was prepared in connection with PLI’s Cloud Computing conference. It was authored by Barnes & Thornburg attorneys, Scott Godes, Kara Cleary, Heidi Fessler and Michael Baumert.   Insurance Coverage Issues for the Cloud   In addition to the insurance best practices mentioned above, the cloud can raise multiple insurance issues that should be considered carefully.  For example, how would insurance provide coverage to the cloud provider or the user if there were a data breach or denial of service attack?  But, there are other events in the cyberspace that both cloud providers and users should consider, such as the situation where users cannot access the cloud…

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02 Oct 2015 Scott Godes Quoted in Law360 Article, “A Cyberattack Survival Guide for Policyholders”

Scott Godes, partner and co-chair of the firm’s Data Security and Privacy Practice Group, was recently quoted in Law360’s article, “A Cyberattack Survival Guide for Policyholders.” The article examines cybersecurity concerns companies face after massive data breaches and highlights issues such as card issuer liability, customer liability, and D&O litigation.   Scott is quoted multiple times within the article.  He notes that there is not a magic solution to preventing data breaches and cyberattacks, noting that many “large enterprises that were hit with data breaches” had been “certified as compliant with payment card security rules by a third party.” Scott then gives advice for buying and evaluating cyberinsurance policies and insurance towers for those risks.   Read the full article here. Scott GodesScott N. Godes…

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04 Aug 2015 Join Us for an Insurance Law Webinar: You’re Covered, But…

Mark your calendar and join us for an insurance webinar on Tuesday, August 25 at 3 p.m. (Eastern). The Barnes & Thornburg Insurance Recovery and Counseling attorneys will provide tips to help your company get all the coverage it bargained for. The program is complimentary, and 1.5 hours of CLE credit is pending. You don’t want to miss this!   Full Coverage – An Insurance Agent’s Duty to Advise? Robert G. Devetski, Partner, Barnes & Thornburg Absent a “special relationship,” an agent generally owes no duty to advise a policyholder about the adequacy of coverage. Here we consider factors which can create that “special relationship” and a resulting duty to advise.   Your Liability Insurer Agreed to Defend? Don’t Relax Yet John Fischer, Partner, Barnes…

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26 Jun 2015 CONSENT JUDGMENTS: WHEN AN INSURER FAILS TO DEFEND

Your business has been sued for negligence, but the complaint also references allegedly intentional acts. The potential liability for the company could be catastrophic. This is exactly why your company has liability insurance and you tender it to the insurance carrier. Rather than accept the defense, the carrier denies, pointing to the intentional acts exclusion in the policy. The business spends months fighting the claims, but is unsuccessful in getting the claims dismissed, and doesn’t have the financial resources to fight a second-front battle with its insurance carrier. It is now the eve of trial and you are concerned that there is a likelihood the jury could find the company liable. Furthermore, the company does not have sufficient funds to pay a settlement, much less…

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29 Apr 2015 Scott Godes Quoted in Law360 Article, “Cyberinsurance Thaw Hinges On Data-Sharing Bills”

Scott Godes, partner and member of the firm’s Policyholder Insurance Recovery Group, was recently quoted in a Law360 article, “Cyberinsurance Thaw Hinges On Data-Sharing Bills.”   This week, the House of Representatives passed H.R. 1560, the Protecting Cyber Networks Act, and H.R. 1731, the National Cybersecurity Protection Advancement Act of 2015. The bills would create liability protections for companies that voluntarily share information on cyberthreat indicators and cyberattacks with each other and the federal government.   Scott was quoted saying, “In short, the bills should offer better protections against cybersecurity and eliminate liabilities for sharing information. That should mean fewer cyberattacks and less liability for policyholders. Or, better said, fewer cyberattacks, fewer losses and fewer claims. That all should make for a positive development when…

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20 Apr 2015 Will Cyberinsurance Cover Target’s $19 Million MasterCard Settlement?

Another credit card in the mail? If you’re reading this post, you’ve probably received a new credit or debit card in the mail, attached by rubber cement to a cover letter explaining that your card number could have been compromised – so you ended up with replacement cards. You might even have received new cards more than once over the past five years. Perhaps you even received a new card with an explanation that after the data breach at Target Corporation, your “issuing bank” – the bank that issued you the credit or debit card – decided to send you a new card. And maybe you signed your card, called to activate it, replaced your old card, and didn’t give a second thought to it….

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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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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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