On Wednesday, a federal judge in New York denied FM’s Rule 12(c) motion for judgment on the pleadings after finding the Contamination Exclusion in the Factory Mutual policy to be ambiguous as to whether it bars coverage for business interruption losses resulting from communicable disease. The case is Thor Equities, LLC v. Factory Mutual Ins. Co., No. 20 Civ. 3380 (AT) (SDNY). This is a critical decision under the Factory Mutual policy form, which is substantively the same as policies issued by Factory Mutual’s sister company, Affiliated FM Insurance Company. Factory Mutual and Affiliated FM have maintained that the contamination coverages are “exceptions” to this exclusion, with the exclusion precluding coverage for communicable disease loss under other policy coverages. But the ruling validates what policyholders have been arguing – that communicable disease “loss” is covered throughout the Factory Mutual policy, in addition to under the sublimited communicable disease emergency response coverages.
Effective April 1, 2021, Hunton Andrews Kurth LLP has promoted insurance recovery lawyer, Andi DeField, and six other attorneys, to partner. “Andi has been a superstar in our practice since the day she arrived,” said insurance recovery practice head, Walter Andrews, adding that “Andi’s promotion reflects the incredible hard work she has contributed to the practice and outstanding results she has achieved for our clients over the years.” A native of Miami, Andi ascended through the ranks at Hunton in its Miami office, joining the firm as a contract lawyer before earning promotions to associate, counsel and, now, partner. But Andi’s rapid ascension did not come without much hard work. Since joining the firm, “Andi has, year after year, consistently knocked the cover off the ball in terms of her tireless work ethic, the superior results she has achieved and her extraordinary aptitude for marketing herself, our practice and the firms many other practices,” said insurance recovery partner, Mike Levine. Levine added, “Andi is an amazing lawyer and a true champion for her clients. I’m proud to now call her my partner.”
In another pro-policyholder ruling in Delaware, a Delaware Superior Court judge has denied a group of insurers’ application for certification of interlocutory appeal in the long-running D&O dispute, Verizon Communications Inc. et al. v. National Union Fire Insurance Co. of Pittsburgh, PA, et al., C.A. No. N18C-08-086 EMD CCLD (Del. Super. March 16, 2021). The court’s most recent decision arises out of a February 23 ruling that Verizon could recover $24 million in legal fees incurred in defense of a fraudulent transfer lawsuit brought by a bankruptcy trustee. When the insurers’ sought to appeal this interlocutory decision, the court refused, concluding that the benefits of an immediate appeal, if any, do not outweigh the probable costs. The decision will permit the orderly resolution of what the court deemed to be “standard contract law principles,” which the insurers had failed to demonstrate negated coverage.
Hunton insurance attorneys Syed Ahmad, Geoffrey Fehling, and Kevin Small commented on a retailer’s insurance dispute related to COVID-19 in the latest edition of the Recall Roundup, posted on the Hunton Retail Law Resource Blog.
In a setback for retail-policyholders hoping to enforce coverage for losses due to COVID-19 in federal court, a Tennessee district court recently knocked out a complaint filed by a sprawling Nashville establishment seeking coverage under a food contamination provision in its property policy. The court’s opinion dismissing Nashville Underground LLC v. AMCO Insurance Co. is noteworthy due to the great lengths taken to define a policy provision—intended to provide broad coverage for disruption of business due to the suspicion of food contamination—in a way that limits coverage contrary to the reasonable expectations of businesses purchasing policies specifically tailored to protect against actual or suspected contamination.
On March 3, 2021, the Delaware Supreme Court issued a landmark decision holding that Delaware law should be applied in disputes over directors and officers liability (“D&O”) insurance policies sold to companies incorporated in Delaware. RSUI Indem. Co. v. Murdock, et al. No. 154, 2020, C.A. No. N16C-01-104 CCLD (Del. Mar. 3, 2021). The court addressed this and other key issues in the long-running dispute over D&O insurance purchased by Dole Food Company, specifically addressing issues raised by Dole’s eighth-layer excess insurer, RSUI, which provided $10 million coverage excess of $75 million.
The court decided multiple important issues, finding that liability for alleged fraud is insurable under Delaware public policy, RSUI’s Profit/Fraud Exclusion did not bar coverage because there had been no “final adjudication” of fraud, and the “larger sums rule” governed allocation issues. However, among these important rulings, the most significant may be the Supreme Court’s ruling that Delaware governs the interpretation of D&O insurance issued to a company incorporated in Delaware. The court specifically rejected the insurer’s arguments that California law (which might preclude coverage) should apply under a policy that was purchased and issued in California to a Delaware corporation headquartered in California.
One year into the COVID-19 pandemic, courts have issued hundreds of rulings in COVID-19 business interruption lawsuits, many favoring insurers. Yet those pro-insurer rulings are not based on evidence, much less expert opinion evidence. For insurers, ignorance is bliss.
The adage goes, “the best defense is a good offense.” This appears to be the approach that New York insurance regulators are advocating in response to what they deem “systemic risk[s] that occur when a widespread cyber incident damages many insureds at the same time, potentially swamping insurers with massive losses.” On February 4, 2021, the New York Department of Financial Services (“DFS”), which regulates the business of insurance in New York, has issued guidelines, in the Insurance Circular Letter No. 2 (2021) regarding “Cyber Insurance Risk Framework” (the “Guidelines”), calling on insurers to take more stringent measures in underwriting cyber risks. In the Guidelines, DFS cites the 2020 SolarWinds attack as an example of how managing growing cyber risk is “an urgent challenge for insurers.”
A California state court denied an insurer’s motion to dismiss Goodwill Industries of Orange County’s COVID-19 business-interruption claim after an apparent reassessment of how California’s federal courts have applied (or, rather, misapplied) California precedent to COVID-19 cases. The case is Goodwill Industries of Orange County, California v. Philadelphia Indemnity Insurance Co., No. 30-2020-01169032-CU-IC-CXC (Cal. Super. Ct. Jan. 28, 2021).
The Hunton Insurance Recovery Team recently issued a client alert analyzing how two Ohio federal judges ruled on COVID-19 coverage cases.
As previously reported, an Oklahoma state court recently granted summary judgment to the Cherokee Nation for its COVID-19 business interruption claim. The court has now issued a more substantive opinion, establishing the merits of the Cherokee Nation’s claim and providing yet another blueprint for policyholders seeking to recover COVID-19-related losses under “all risk” commercial property insurance policies.