Lawrence J. Bracken II, a partner in Hunton Andrews Kurth’s Insurance Coverage practice group, has been elected to the American College of Coverage Counsel (ACCC), which is the preeminent association of U.S. and Canadian lawyers who represent the interests of insurers and policyholders. The ACCC’s mission is to advance the creative, ethical and efficient resolution of insurance coverage and extracontractual disputes; to enhance the civility and quality of the practice of insurance law; to provide peer-reviewed scholarship; and to improve the relationships among the members of our profession. The ACCC engages in a rigorous vetting process prior to inviting a lawyer to become a fellow. ACCC fellows include many of the most prominent members of the insurance law bar.
The Texas Supreme Court has reversed a lower appellate court decision and found that insurers of Anadarko Petroleum Corp. cannot use their own policy wording to avoid coverage for more than $100 million of Anadarko’s defense costs stemming from the 2010 Deepwater Horizon disaster. Law360 interviewed Hunton’s Sergio F. Oehninger about the substantial impact the decision will have for policyholders in Texas and elsewhere. Oehninger explained how the decision corrects fundamental errors by the lower court in the construction of insurance policies and how it illustrates the proper way to construe words chosen by the insurer that operate to limit or preclude coverage. In the Anadarko matter, the London market policy contained a “joint venture” provision that capped joint venture liabilities at $37.5 million. The insures applied the cap after paying that amount to Anadarko. The Texas Supreme Court rejected the insurers’ argument and the decision of the court below, finding that the joint venture provision applies only to “liabilities” – that is, amounts Anadarko becomes legally obligated to pay to a third party. Defense costs, in contrast, are not amounts paid to a third party and, thus, are not “liabilities” within the context of the joint venture provision. The Court also drew on other policy provisions to support the distinction, including provisions that specifically refer separately to “liabilities” and “defense expenses.” “The Texas Supreme Court’s reversal of the appellate panel’s ruling serves as a clear pronouncement of both insurance policy construction rules and proper appellate review in Texas,” Oehninger said. “In this regard, the Supreme Court’s opinion serves to ‘right the ship’ and bring Texas case law back in line with precedent.”
Rosen Millennium Inc. (“Millennium”), the cyber security and IT support subsidiary of Rosen Hotels & Resorts, Inc., has appealed to the Eleventh Circuit contending that a Florida federal court ignored Florida insurance law when it ruled that Travelers Insurance Company has no duty to defend it against a multimillion dollar claim arising out of a cybersecurity breach.
The doctrine of functus officio typically sets an arbiter’s award in stone: It forbids an arbiter from altering its award after the award has been rendered. But the doctrine has several exceptions. One such exception, known as the clarification exception, allows an arbitration panel to clarify an ambiguous final award. In Gen Re Life Corporation v. Lincoln National Life Insurance, the Second Circuit joined several other circuits in expressly adopting this exception, allowing an arbitration panel to clarify the meaning of its prior interpretation of rescission-clause in a reinsurance agreement. Hunton Andrews Kurth attorneys Syed Ahmad, Patrick McDermott, and David Costello discuss the decision and its implications for policyholders in their recent article, Arbitration of Insurance Disputes: Functus Officio and the Clarification Exception.
2018 was a big year for insurance coverage cases, especially those involving social engineering phishing, spoofing and other schemes of trickery and deception.
The insurance recovery lawyers at Hunton Andrews Kurth have compiled their list of the top insurance cases of 2018. A copy of the Review can be found here.
As the new year gets under way, cases that will shape the insurance landscape in 2019 continue to proceed. Among them are First Acceptance Ins. Co. v. Hughes, in which the Georgia Supreme Court will address the prerequisites for a policyholder to sue its insurance carrier for bad faith based on the insurer’s failure to settle the underlying dispute for an amount within the available policy limits. Hunton Andrews Kurth’s insurance practice head, Walter Andrews, was asked by Insurance Law360 to comment on the significance of that case. As Andrews explained, the insurer’s position is inconsistent with Georgia law. “Georgia law does not require some particular form of settlement offer — or even an offer at all — to create an insurer’s duty to settle claims against their insureds.” Rather, as Andrews explained, “that duty arises when the insurer knows or reasonably should know that not settling will create an ‘unreasonable risk’ of the insured suffering a judgment in excess of his or her policy limits, regardless of whether a third-party claimant has first presented a settlement offer. Most often, that should be a jury question and not something that is susceptible to summary judgment.”
Continue Reading Hunton Insurance Head Comments on Insurance Cases to Watch in 2019
In a recent Client Alert, Hunton insurance lawyers Mike Levine, Sergio Oehninger and Josh Paster discuss the impact of the Second Circuit’s recent opinion in Patriarch Partners, LLC v. Axis Insurance Co., where the Court confirmed that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation. The decision underscores the importance of understanding how a policy’s language and definitions impact the scope of information that policyholders must consider when representing facts and circumstances in insurance applications. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy. The Second Circuit and Southern District’s rulings in Patriarch confirm that government subpoenas or civil investigative demands constitute a “Claim” that ought to trigger coverage under fairly standard D&O policy language. Policyholders facing government subpoenas, civil investigative demands, or other formal or informal government demands should not hesitate to seek coverage for such costs under their D&O insurance policies.
Read the full alert here.
Hunton Insurance Coverage attorneys Syed Ahmad and Geoff Fehling contributed to the firm’s Recall Roundup, a monthly publication canvassing consumer product and retail recalls and related litigation. In the October issue, Ahmad and Fehling discuss two recent decisions with potentially broad implications. In Lake Country Foods, Inc. v. Houston Casualty Co., No. 18-CV-734 (E.D. Wis. filed May 11, 2018), nutritional supplement manufacturer Lake Country Foods, Inc., (“LCF”) filed an insurance coverage complaint seeking to enforce its rights under a product contamination policy issued by Houston Casualty Company (“HCC”) arising from a salmonella contamination incident. In the October Recall Roundup, Ahmad and Fehling discuss the potential impact that the insurer’s counterclaims seeking reimbursement of the approximately $1.2 million advance payment it made in response to the alleged salmonella contamination incident might have on the pending insurance recovery dispute.
In a win for policyholders, a California appellate court has held that the loss of use of property resulting from alleged negligence constitutes property damage under a liability insurance policy.
The head of Hunton Andrews Kurth’s insurance practice, Walter Andrews, was interviewed earlier this week by ABC 7 (WJLA) concerning the need for cyber insurance and the benefits that it can provide to government contractors and other businesses that are impacted by a cyber event. Andrews explains the diverse spectrum of benefits that are available through cyber insurance products, but cautions that a serious lack of uniformity exists among today’s cyber insurance products, making it crucial that policyholders carefully analyze their cyber insurance to ensure it provides the scope and amount of insurance they desire.