A New York appellate court recently held that renewable bio-diesel fuel manufacturer BioEnergy Development Group LLC may pursue tens of millions of dollars in damages from its insurers under two all-risk insurance policies, including amounts in excess of the policy limits, where the insurers refused to pay claims in a timely manner.
The Illinois Supreme Court’s recent decision in Sanders v. Illinois Union Insurance Co., 2019 IL 124565 (2019), announced the standard for triggering general liability coverage for malicious prosecution claims under Illinois law. In its decision, the court construed what appears to be a policy ambiguity against the policyholder in spite of the longstanding rule of contra proferentem, limiting coverage to policies in place at the time of the wrongful prosecution, and not the policies in effect when the final element of the tort of malicious prosecution occurred (i.e. the exoneration of the plaintiff). The net result of the court’s ruling for policyholders susceptible to such claims is that coverage for jury verdicts for malicious prosecution – awarded in today’s dollars – is limited to the coverage procured at the time of the wrongful prosecution, which may (as in this case) be decades old. Such a scenario can have costly consequences for policyholders given that the limits procured decades ago are often inadequate due to the ever-increasing awards by juries as well as inflation. Moreover, it may be difficult to locate the legacy policies and the insurers that issued such policies may no longer be solvent or even exist. A copy of the decision can be found here.
A New York federal court denied AIG Specialty Insurance Company’s (“AIG”) motion to dismiss breach of contract and bad faith claims in a lawsuit filed by SS&C Technology Holdings, Inc. (“SS&C”). SS&C alleges that AIG breached its contract by failing to cover losses stemming from a cyber incident in which hackers duped the company out of millions of dollars.
On November 12, 2019, a federal court in Kentucky held that a vendor service agreement (VSA) between Live Nation Worldwide Inc. and its security vendor, ESG Security, extended coverage under an insurance policy issued by Secura Insurance to ESG, for Live Nation’s liability arising from a concert at a Live Nation facility.
Last week, in an exciting moment, the U.S. House of Representatives, voted 321 to 103 in favor of H.R.1595, the Secure and Fair Enforcement Banking Act of 2019 (“SAFE Banking Act”). If enacted into law, the SAFE Banking Act, would provide financial institutions, including insurers, a safe harbor to do business with “cannabis-related legitimate businesses” in the United States. In particular, the act would protect insurers, independent agents, and brokers from criminal and civil liability when offering insurance coverage to state-legalized cannabis businesses. The SAFE Banking Act would grant the cannabis business community access to many of the financial services most companies take for granted, like electronic payment processing, employer-sponsored 401(k) accounts and small business loans.
In a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here.
Latosha M. Ellis, an associate in Hunton Andrews Kurth’s Insurance Coverage Practice, was recently named to The National Black Lawyers Top 40 Under 40 class of 2019.
When facing a crisis, such as product recall or a cyber attack, companies routinely engage third-party consultants. When doing so, there are potential privilege issues involved. Hunton Andrews Kurth insurance attorneys Syed Ahmad and Adriana A. Perez discuss these privilege issues in an article published by Westlaw. The full article is available here. In the article, the authors discuss the recent decision in Stardock Systems Inc. v. Reiche, which explores when communications with third-party consultants, such as public relations professionals, are protected under the attorney-client privilege and work product doctrine.
The members of Hunton’s Insurance Recovery group present regularly on today’s hot topic insurance coverage issues. Upcoming insurance presentations for November 2019 include:
- Walter J. Andrews will be presenting on Experts and Their Role in Bad Faith Litigation at the 2019 Insurance Law Symposium at Nova Southeastern University in Davie, Florida on November 1, 2019.
- John C. Eichman will be presenting on Pursuing the Insured’s Claim at the ABA’s 2019 Fidelity & Surety Law Fall Conference in Boston, Massachusetts on November 7, 2019.
- Syed S. Ahmad will be presenting with Paul M. Tiao on Incident Response Management at the 14th Annual API Cybersecurity Conference for the Oil & Natural Gas Industry in The Woodlands, Texas on November 12, 2019.
The Fall 2019 Edition of The ALI Reporter recognizes Hunton partner Lorelie S. Masters for her significant contributions to the new Restatement of the Law, Liability Insurance (RLLI). The RLLI was approved by the American Law Institute (ALI) at its 2018 Annual Meeting and published in late September 2019. In 2010, Lorie was one of 40 attorneys invited to serve as an Adviser to the Restatement, and she was heavily involved throughout the life of the eight-year project.