The Road to Insurance Recovery
When facing a lawsuit, most policyholders would understandably rather use familiar, trusted defense counsel instead of attorneys chosen by their insurer.
Policyholders should be reviewing their coverage programs now to identify what claims they will want to submit before major claim-filing deadlines hit in August and December this year.
The earliest COVID-19 insurance court rulings across the country were decided under a preliminary “motion to dismiss” standard – meaning, the courts were deciding whether the insured had a plausible claim for relief against the insurer if the insured’s allegations could be proven true, not that the insured was, in fact, entitled to coverage.
Since the COVID-19 pandemic began earlier this year, policyholders have filed over a thousand lawsuits against their insurance carriers seeking coverage for business interruption losses caused by the coronavirus or resulting stay-at-home orders.
Wildfires blazed through millions of acres along the West Coast this year, reportedly killing dozens of people, destroying thousands of structures and causing billions of dollars in insured losses.
When the COVID-19 pandemic began in the U.S., insurance coverage lawyers – both on the policyholder and insurer side of the aisle – were all bracing themselves for an onslaught of litigation, and they would all be partly right.
Lathrop GPM Insurance Recovery attorneys are busy advising clients on insurance coverage issues in the wake of the COVID-19 pandemic. We’ve also been tapped to share insights with various media outlets on this topic and several others recently. Below please find a collection of articles and media clips since our last round-up on May 4:
The ongoing pandemic resulting from the coronavirus or COVID-19, has had a dramatic effect on healthcare providers, including long-term care facilities, resulting in significant financial losses and liability claims. Contrary to what insurers and many brokers may tell you, these COVID-19-related losses and liability exposures may be covered under standard property and casualty and liability insurance policies.
Mass protests have erupted across the United States – from Los Angeles to New York. Though many of these protests are peaceful and benign, some have led to significant property loss by arson and vandalism, as well as theft, in addition to business interruption damages due to necessary closure of impacted stores and offices. Businesses of all sizes are left wondering whether and how they can recover from these events. First on the list should be to review all potential insurance coverage and promptly submit claims to relevant insurance carriers.
Lathrop GPM Insurance Recovery attorneys are busy advising clients on insurance coverage issues in the wake of the COVID-19 pandemic. We’ve also been tapped to share insights with various media outlets on the topic. Below please find a sampling of articles and media clips since the last time a listing was shared on our March 25, 2020 blog post:
Despite devastating losses due to the forced closure of their businesses and the effect of social distancing mandates, most policyholders around the country that have made claims for business interruption losses under their property policies, are getting a uniform response: Claim denied!
The answer is maybe; but you will not know without a thorough review of all potentially applicable policies.
Lathrop GPM Insurance Recovery attorneys are busy advising clients on insurance coverage issues in the wake of the COVID-19 pandemic. We’ve also been tapped to share insights with various media outlets on the topic. Below please find a sampling of articles and media clips:
The coronavirus or COVID-19 global outbreak has struck fear in the hearts of many of us. As the disease spreads, however, it brings with it not only health concerns, but also serious financial consequences for commercial enterprise. And with any potential loss of business comes the inevitable question: Will my insurance cover this?
Excess insurance, while great for mitigating risks of large losses to policyholders, does not always cooperate during litigation. This is particularly true during settlement negotiations, as excess insurers do not have an obligation to settle in good faith until it’s their turn to defend. This was the decision of the Seventh Circuit in Fox v. Am. Alt. Ins. Corp., 757 F.3d 680 (7th Cir. 2014). In Fox, the plaintiff twice made demands for settlement, both before and after a jury verdict came down, that was in excess of the primary policy. But, as the excess insurer had no duty to defend until the primary policy was “exhausted,” meaning actually paid out, the Seventh Circuit found that in neither demand had the excess insurer violated their duty to settle in good faith.
Nancy Sher Cohen, leader of our Los Angeles office and a leader of our Insurance Recoveries and Counseling practice group, recently sat down with Burford Capital's Andy Lundberg to discuss topics of concern for clients pursuing or considering complex insurance coverage claims. Areas covered include the future of insurance coverage litigation, budgeting for and managing the expense of big coverage litigation, use of alternative fee arrangements, and how legal finance could help policyholders manage cash flow.
Corporate officers and directors should be able to lead confidently and sleep at night without worrying that their personal assets may be at risk because of personal liability. D&O insurance provides such “sleep at night” coverage for claims alleging breach of their duties. However, there are a few key issues to consider when purchasing a D&O policy that can maximize coverage.
The Midwest is experiencing record-breaking flooding this year, bringing back memories of the devastating and costly floods of 1993. Without a doubt, business losses and business interruption claims will be substantial. This post explores when an insured might have coverage for business interruption even if it does not incur significant flood-damage to its own property. As with any coverage claim, the merits will depend on the specific language in the policy and the specific circumstances of the claimed loss. But, here’s a rundown of some common policy provisions and issues to keep in mind.
In an Opinion dated May 29, 2019, the U.S. Court of Appeals, Fifth Circuit, ruled in Travelers Indemnity Co. v. Ethel Mitchell that multiple insurers must provide coverage to a defendant county and its officials sued in a §1983 wrongful imprisonment lawsuit, including certain insurers who issued policies in post-conviction years.
For several years, Lathrop Gage’s Insurance Recovery and Counseling team has been front-and-center at RIMS’ annual conference. This year’s event – taking place April 28-May 1 in Boston – is no exception! We will have a team onsite at booth #549 on the tradeshow (please come by and see us if you’re there), and we have several speaking engagements lined up.
This month, when many are working with inspiration towards their New Year’s resolutions, we urge each business policyholder to set a goal fitting of our modern high-tech age: checking its cyber insurance.
Cyber insurance is something of a fluid catch-all term, but insureds generally seek it to provide coverage for computer-based perils, such as those arising from unauthorized computer access (“hacking”), malicious software (“malware”), email fraud (“phishing” or “spoofing”), network failure or inaccessibility (“ransomware”), and the resulting breach or disclosure of protected data. Such insurance can be either first-party (covering the insured’s own losses arising from, say, a computer system malfunction, a disgruntled employee, or a cyber criminal) or third-party (covering the insured’s liability to, say, its consumers for a data breach or the government for regulatory fines).
Lathrop Gage Partners Bill Beck and Mike Abrams were recently profiled by Super Lawyers for their success in securing compensation for individuals who have been wrongfully convicted, individuals who have often spent decades in prison for crimes they did not commit. Lathrop Gage’s Civil Rights Insurance Recovery Practice group leads the nation in securing insurance proceeds for wrongfully convicted persons, recovering over $150 million for wrongfully convicted individuals and their families since 2004. Additionally, the firm has partnered with the Midwest Innocence ...
Interviewed by Alana McMullin and David Scheidemantle of Lathrop Gage’s Insurance Recovery & Counseling Group.
In a recent decision, the United States Court of Appeals for the Sixth Circuit considered whether a “criminal acts” exclusion in a first-party commercial insurance policy barred coverage for damage to leased property caused by the insured’s tenant in the operation of a marijuana cultivation business. K.V.G. Properties, Inc. v. Westfield Insurance Co., 2018 U.S. App. LEXIS 232296, 2018 FED App. 0178P, 2018 WL 3978211 (6th Cir. Aug. 21, 2018). Marijuana remains illegal as a Schedule 1 drug under federal law but is protected in certain circumstances under the law of Michigan, where the insured property was located. Fatal to the insured’s case, it had pleaded in an eviction proceeding that the tenant’s activities were illegal, which the Sixth Circuit took as an admission that the tenant’s conduct was illegal under Michigan as well as federal law, landing the claim within the confines of the criminal acts exclusion. While paying lip service to black letter law that the insurer bears the burden of establishing the applicability of an exclusion, the court nevertheless ruled against the insured because it had provided no evidence that the tenant had complied with Michigan’s marijuana laws. The court left open whether the exclusion still would have applied had the insured made such a showing (and hinted the outcome might have been different had the insured done so).
The CDC estimates that 1 in 6 Americans get sick from contaminated foods or beverage each year, and that 3,000 people die, resulting in total food-borne illness costs of more than $15.6 billion dollars each year. Those numbers are not surprising when food recalls seem to be an almost weekly occurrence, with salmonella-tainted foods prominently featured in multiple large-scale outbreaks in 2018. Although food contamination seems to be on the rise, experts suggest that frequency is up – not due to an actual increase in outbreaks – but, instead because we are better equipped to ...
Hurricane Florence has caused devastation throughout the Carolinas, including as-yet-unknown property damage, business interruption, environmental contamination, and most tragically, loss of life.
When a disaster like Florence occurs, corporate policyholders enter crisis mode, doing everything they can to make sure business losses are mitigated to the extent possible, providing workarounds for customers, and generally making every effort to salvage what they can and assess the losses incurred. What might not be on any policyholder’s radar screen, however, are the steps that can be taken now to maximize insurance coverage and recovery once the immediate crisis is over.
Remember those spam emails from Nigerian royal family members needing to transfer millions of dollars out of Nigeria, requesting the recipients provide banking and personal information to “hold” the funds or otherwise front money to the fraudster to pay taxes and fees? While most people have (hopefully) wised up to that scheme, a more insidious and devastating fraud has taken hold in the corporate world – the “social engineering” scheme.
“Social engineering” schemes are shades of the Nigerian letter scams, except the fraudster pretends to be someone affiliated ...
Excess insurance plays a vital role in mitigating the risk of large losses, but excess insurers often contend they have no obligations and are entitled to sit on the sidelines of a lawsuit against their policyholder until underlying insurers have fully paid their limits. This position harms policyholders, particularly when settlement of a lawsuit requires contribution from these excess insurers.
While courts universally acknowledge the value of pre-trial resolution and settlement, some jurisdictions have discouraged settlement of large losses by holding that excess ...
In late 2017, in a move favoring policyholders, the Missouri Court of Appeals for the Eastern District applied the “all-sums” approach to allocating and exhausting insurance coverage for a continuous asbestos harm in Nooter Corp. v. Allianz Underwriters Ins. Co., 536 S.W.3d 251 (Mo. App. 2017). Although Nooter has sparked significant chatter in the insurance world, Lathrop Gage is dedicated to educating its clients on what Nooter means to you.
In Nooter, plaintiff Nooter Corporation was in the business of designing, installing, and distributing pressure vessels for ...
In 2017, the Missouri Supreme Court handed down its Doe Run decision, where it interpreted, as a matter of first impression, an insurance policy’s so-called “absolute pollution exclusion,” holding that it barred coverage for environmental-degradation claims arising from the release of toxic industrial byproducts. We believe this policyholder-adverse decision is limited by its facts and reasoning, and thus policyholders can still invoke the earlier and more favorable Hocker Oil and Wyatt decisions when seeking insurance coverage in other contexts.
UPDATE on May 23, 2018: Yesterday, ALI voted to approve these rules and many more contained in a 488-page document containing guidelines intended to aid courts in resolving coverage complex disputes. It remains to be seen how and whether courts across the country actually follow these guidelines. Lathrop Gage will be following the effect of this project on the law over the next several years and will keep you updated.
The American Law Institute (ALI) is voting tomorrow on new guidelines that may affect the complex rules adopted and applied by courts in insurance coverage disputes. Here ...
The attorney-client privilege is one of the oldest and most widely-known—if generally misunderstood—common law doctrines. In its broadest outline, it’s a rule that’s fairly easy to grasp and apply: a communication between a lawyer and a client for a legal purpose that is held in confidence is protected from disclosure by privilege. The rule ensures that clients can be candid with their lawyers without fear that their candor is discoverable (and ultimately harmful to their case). But don’t miss the important caveat: the communication must be held in confidence, meaning when there’s another, non-client party in on the conversation, there is no privilege.
This presents an obvious but often missed dilemma, as modern litigation often involves four critical parties sharing communications: the person or entity being sued, their attorney, their liability insurer(s), and their broker. This situation is so ubiquitous that it may be easy to forget that under the traditional rule, when you share information with your insurer or your broker, you’re breaking privilege.
Thirty-two years ago, a major California newspaper urged Californians to vote “no” on a ballot initiative commonly referred to as “Prop 65,” which would require certain businesses to include warning labels on products that contained a compound known to the State of California to cause cancer, birth defects or reproductive harm. However, the editorial board dismissed what it viewed as “exaggerated” claims by other opponents of Prop 65, reassuring voters that even if the measure passed, it would “not lead to the banning of ordinary table salt or require warning labels on every apple sold or cup of coffee served in California.” But last month, a California Superior Court judge ruled that businesses may have to do just that - require warning labels on cups of coffee served in California.
The complaint in the case, Council for Education and Research on Toxics v. Starbucks Corporation, et al., alleges that dozens of companies in the coffee business violated Prop 65 in failing to warn consumers that brewed coffee contains acrylamide, a substance believed to be a carcinogen by the State of California. Defendants in the case were previously unsuccessful in persuading the court that Prop 65’s warning requirements were unnecessary because the alleged acrylamide exposure posed “no significant risk.”
Montrose v. Superior Court and the Future of Exhaustion Under California Law.
When a policyholder faces a “long-tail” claim (i.e., a claim involving injury that remains undetected for some time after the alleged wrongdoing, and the harm may have been sustained over a number of years—even decades), like property damage and bodily injury claims arising out of alleged environmental contamination or asbestos exposure, there are often multiple years and layers of primary and excess insurance policies that provide coverage. However, there are also many issues that may arise, making it difficult for insureds to collect all relevant coverage. For example, the insured may have trouble finding all applicable policies that were in place at relevant times, there may have been mergers and acquisitions that complicate matters, some coverage may have become insolvent, etc.
A key legal issue that impacts the manner in which policyholders may collect all relevant coverage is whether the insured must first exhaust all underlying primary coverage in place during the time of alleged harm before it is allowed to tap into valuable excess coverage (often called “horizontal” exhaustion), or whether it may choose to first collect the primary and excess coverage in any given year before seeking to collect other years of coverage (often called “vertical” or “all sums” exhaustion). While horizontal v. vertical exhaustion (or some variant thereof) is a state-by-state issue, the Supreme Court of California in Montrose Chemical Corp. v. Superior Court, 406 P.3d 327 (Cal. 2017) recently set the stage for potentially one of the most impactful coverage decisions on this issue in decades. There, the California Supreme Court recently granted the policyholder, Montrose’s, request to decide whether it must exhaust all its primary policies on the risk before recovering under any of its excess policies for environmental damages.
The Montrose coverage dispute began in 1990 and arose out of the policyholder, Montrose’s, long-running efforts to procure coverage for over $100 million in damages incurred in a CERCLA action. The action arose out of Montrose’s production of the pesticide DDT at its facility in Torrance, California, between 1947 and 1982 and implicates nearly two dozen insurers that issued both primary and excess policies to Montrose.
In a recent webinar, Lathrop Gage Partner Mike Abrams and Hays Companies Vice President and Cyber Liability Practice Leader Dave Wasson covered several common pitfalls to avoid in buying cyber liability risk policies. In summary, the cyber insurance market is not a mature one, and policies differ significantly. It’s important to be working with a broker or lawyer who is familiar with potential issues and terms that can be negotiated.
The modern accessibility of DNA testing has led to an unprecedented rise in exonerations of the wrongfully imprisoned and a surge in civil rights lawsuits against public officials and municipalities for suppressing exculpatory evidence. These lawsuits present complex liability issues including qualified immunity, Monell liability, statute of limitations bars, etc.
One of the most complex ancillary issues is whether these public entities are protected for civil rights claims under their insurance programs. Particularly for financially distressed municipalities, the availability of insurance proceeds is often the most critical issue because of the potentially enormous liabilities these entities face resulting from law enforcement misconduct claims.
More often than not, the dispute over coverage hinges on the “trigger issue.” “Trigger” is a shorthand insurance concept used to describe what event must occur before a particular liability policy applies to a given loss. What events “trigger” coverage wholly depend upon the language of each particular insurance contract, just like any other private contract negotiated between two parties. If there is a governing rule in insurance jurisprudence (or Contracts 101), it’s that an insurance contract should be construed as written.
From the “Bomb Cyclone” winter storm that roared across the East Coast; to Hurricanes Harvey, Irma, Maria and Jose that exacted an enormous human, financial and business toll; to the California wildfires that killed 43 people, consumed 10,000 structures and devastated numerous wineries - it seems that we cannot escape news these days of disasters that have a deep and wide-ranging impact on lives, property, and commercial activity. We begin the New Year with a hope that we will see fewer, less severe disasters but also with the question in mind: “What can I do today to be prepared for a disaster that could affect my business?” Of course, a critical component of preparing for disasters is taking the necessary precautions to avoid or limit losses in the first place. But some losses may be unavoidable, so companies should also prepare ahead of time to maximize their recovery of insurance for the losses that do arise. Some steps to take that will help:
- Take the time to assess the types of catastrophic events to which your company might be vulnerable. Speak to those responsible for day-to-day operations and ask which type of losses or disruptions would be most costly not only to the immediate bottom line, but also in terms of intermediate or long-term displacement of the company’s competitive advantage or its reputation. Think outside of the box and do not constrain your assessment to the types of disasters that come easily to mind. It is those that we did not see coming, or the severity of which we underestimated, that we are least prepared for.
About this Blog
Lathrop GPM is one of the largest law firms in the United States representing policyholders, providing policyholders with the necessary guidance and legal counsel to handle everything from negotiating coverage and managing risk to litigating insurance disputes and recovery. The Road to Insurance Recovery blog is dedicated to helping readers better understand and manage the complexities of the modern business insurance policy.