Top 10 Tips for Insurance Policyholders (Fall 2020)

John A. Gibbons

1. Assess the policies you have and reassess the policies you should buy in the future.

2020 has brought a host of unwelcome events: pandemics, fires, floods, cyberattacks, financial failures, etc. An insurance program tailored to the risks and business opportunities of your specific company can provide for recovery during dark times, and specialized insurance products can help you safely expand your business. It is time to consider how tailored your current program is, and how you can better align insurance assets to your business in the future.

2. Use indemnities and additional insured status to expand your insurance assets.

Everyday business for many companies involves the use of terms and conditions; sales or services orders; and leases that address indemnification, minimum insurance requirements, and additional insured status. A well-thought-out use of additional insured status can allow you to leverage the insurance assets and insurance premiums of counterparties.

3. Ensure that you get the full benefits of your liability and property insurances.

Insurance policies provide many coverages, policy limits, and extensions that may not be readily apparent, and all of which may provide substantial financial assistance in the event of a loss. In addition, specialized forms of insurance, additional riders, or policy wording upgrades can better tailor policies to your specific business attributes. Use the renewal season to explore your options.

4. Avoid “conventional wisdom” about what is or is not covered.

With insurance, words matter! In fact, the wording determines the outcome. Do not accept statements about what others think a policy does or should cover. For example, claims for intentional wrongdoing and punitive damages often are covered by liability policies. Likewise, losses from your supply chain may be covered under your property policies. Non-payments of debts and breaches of contractual promises are covered under various forms of policies. Let the words lead you to coverage.

5. Give notice once you know of a loss or claim.

Typically, notice should be given soon after a loss, claim, or lawsuit, but remember that a delay in giving notice will not necessarily result in the loss of coverage. Consider the potentially applicable insurance assets that may apply and give notice.

6. Insist your insurers fully investigate claims.

Insurers have a duty to investigate claims thoroughly and must look for facts that support coverage.

7. Watch what you say.

Communications with an insurer or an insurance broker regarding a lawsuit against you or a loss are not necessarily privileged.

8. Don’t take “no” for an answer.

A reservation of rights is almost always the start of the insurance claim process, and a denial should not dissuade you from pursuing your rights. Even if coverage is not obvious at first, it may be there, if you look in the right places.

9. Document, document, document your claim.

Whether it is a first-party loss or a liability suit against you, write to your insurer and document your submission of information and materials. Require your insurer to respond in writing and to explain its position. A well-documented chain of correspondence narrows disputes, helps to limit shifting of insurer positions, or helps to make such shifting very apparent if your claim proceeds to formal enforcement measures.

10. Insist that your insurers honor their duties.

In the liability context insurers frequently owe broad duties to defend with independent, conflict-free counsel, even if uncovered claims dominate the lawsuit against you. In property insurance contexts, insurers have duties to help you on an expedited emergency basis to protect your interests immediately after a loss. It is important to hold insurers to their duties to protect you immediately upon assertion of liability or after a loss—delay only benefits insurers.

 

An Overview of Intellectual Property Insurance Issues

Omid Safa and Daniel R. Belzil

The strategic importance and economic value of intellectual property (“IP”) can hardly be overstated in today’s global marketplace. Recognizing this, companies devote considerable time and resources to protect their vital IP assets and minimize the financial harm if/when problems arise. Evaluating the risks, understanding the insurance options available, and purchasing meaningful coverage that aligns with the needs of the business are critical pieces of the risk-management puzzle. Navigating the various options can be difficult. This article outlines some of the major issues.

Initially, policyholders have traditionally looked to their Commercial General Liability (“CGL”) policies to respond to IP disputes. Standard-form CGL policies typically cover “advertising injury” (sometimes called “personal and advertising injury”) which, depending on how these terms are defined in the policy, can cover some types of IP claims.

However, not all IP-related claims will fall within the “advertising injury” coverage in a CGL policy. Continue reading “An Overview of Intellectual Property Insurance Issues”

Advertising Insurance Policies: Advertiser Beware

James S. Carter

Carter, James S.Is your company about to embark on an advertising campaign? Insurers offer a wide variety of specialized insurance coverage for advertising risks. The marketing materials associated with such coverage often suggest that the coverage is broad. Advertising policies, however, often contain non-standard and untested language that might contain subtle nuances that could give rise to coverage disputes.

In one recent case, a coverage dispute turned on the placement of a mere comma in a seemingly broadly written provision granting coverage for advertising-related claims. See ACE European Group, Ltd. published by shutterstock licensev. Abercrombie & Fitch, 2013 U.S. Dist. LEXIS 131269, Case No. 2:12-CV-1214, Case No. 2:11-CV-1114 (S.D. Ohio Sept. 13, 2013). Abercrombie & Fitch sought coverage under a “Safeonline Advertisers and Internet Liability Policy” for several consumer class actions alleging that Abercrombie had misled consumers about a nationwide gift card promotion. Continue reading “Advertising Insurance Policies: Advertiser Beware”

Seeking Insurance Coverage for a Product Disparagement Claim

James S. Carter

Carter, James S.The “advertising injury” coverage in commercial liability insurance policies typically extends to lawsuits alleging product disparagement. But is there coverage if your company’s advertisement does not specifically mention a competitor’s product by name? A recent judicial decision suggests that the answer is yes.

JAR Laboratories LLC v. Great American E&S Insurance Co., 2013 U.S. Dist. LEXIS 67516 (N.D. Ill. May 10, 2013), addressed whether an insurance company had a duty to defend its policyholder, the manufacpublished by Shutterstock licenseturer of an over-the-counter pain relief patch, against a lawsuit brought by a distributor of a prescription pain relief patch. The issue turned on whether the allegations in the distributor’s complaint fell within the scope of the policy’s coverage for “personal and advertising injuries” resulting from the publication of material that “disparages a person’s or organization’s goods, products, or services.” Id. at *12 (quotation marks omitted). Continue reading “Seeking Insurance Coverage for a Product Disparagement Claim”