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.