James S. Carter, Omid Safa, and Jared Zola
More insurers are offering stand-alone cyberinsurance policies than ever before. At the same time, there are very few decisions by courts regarding this relatively new breed of insurance policy. Most of the decisions construing insurance coverage for cyber risks to date involve other types of insurance policies, such as commercial general liability (“CGL”) and commercial crime policies. Although such cases may not involve cyber policies per se, buyers trying to navigate the cyberinsurance market ignore them at their peril. They illustrate the types of cyber incidents that have generated insurance coverage disputes significant enough to be litigated to decision. Familiarity with such cases can help buyers select and negotiate cyber risk policies with wording aimed at minimizing such disputes and increasing the scope and certainty of the coverage available to the policyholder.
Continue reading “Cyberinsurance Buyers Beware! Is the Past Prologue?”
Omid Safa, James S. Carter, and Jared Zola
With information technology impacting nearly every aspect of commerce in our “wired” economy, few issues present more concern to businesses today than cybersecurity. Cyberattacks continue to proliferate at an alarming rate and the threats facing companies continue to evolve and become more sophisticated with each passing day. The legal and financial costs associated with such events also grow more serious, as legislators, regulators, and customers insist on greater protection and impose more stringent requirements. Meanwhile, insurance companies have sought to limit the coverage available under traditional insurance policies with new exclusions aimed at cyber-related risks. As a result, it has become imperative for organizations to reevaluate their cybersecurity protocols and breach response plans—and their insurance coverage assets to help offset losses and liabilities associated with such events when all other safeguards fail. Increasingly, this means that companies must consider purchasing cyber-specific coverage to insure against these emerging risks and address the potential gaps in their traditional insurance programs. Continue reading “Managing Cyber Risks: Tips for Purchasing Insurance That Works for Your Business (Part 1)”
James R. Murray and Omid Safa
It can be easy for insurance trial lawyers to become complacent when fighting the ancient coverage wars over asbestos and pollution related-liabilities. But good trial lawyers know how to revisit their time-tested themes with renewed energy and vigor each time. They face each trial fresh, as if it is the first time the words have been spoken, because the trial lawyer knows that for the jury, that might as well be true. The evidence and the themes will be all new. Continue reading “Trying the Environmental Coverage Case in 2017”
Robyn L. Michaelson and Omid Safa
A governmental entity may initiate an investigation with something as seemingly innocuous as an “informal” request for information, or as ground shaking as armed government officials executing a full-blown search and seize warrant at your company’s headquarters. In either scenario, the ensuing investigation is likely to be expensive, time consuming, and a distraction from your business operations. Any governmental investigation can quickly escalate into an extensive and protracted inquiry that forces your company to spend significant time, resources, and legal fees responding to (and defending against) the government’s investigatory demands. These investigations may also result in subsequent legal or administrative enforcement actions, which expose the company and its directors and officers to potential liability for damages, fines, penalties, and other financial obligations. These actions pose a serious threat to the organization and its top brass, and must be met with a vigorous defense. The crucial question is: How will you pay for your response and defense? The answer may lie with your insurance portfolio. Continue reading “Government Investigators at Your Door? Check Your Insurance Policies.”
James R. Murray, Jared Zola and Omid Safa
Upon receiving an insurance claim from its policyholder, an insurer is obligated to promptly and reasonably investigate, adjust, and determine whether to pay a claim. Those are fundamental aspects of an insurer’s business that arise with respect to every claim. Reports by insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurer’s business.
Insurers frequently allege that attorneys working for the insurers perform or assist with the claim investigation or adjustment and then assert privilege in an effort to avoid producing such reports during litigation. Policyholders should be wary of any such assertion and consider case law from across the country compelling insurers to produce claims handling documents (and related testimony) generated by or in connection with insurer coverage counsel. Many courts hold that the decision to have lawyers undertake or be involved in basic claims handling functions does not imbue this business task with privilege, and protection from discovery. Thus, communications among these attorney claims handlers, independent claims personnel, and insurers about the results of their claim handling activities should not be cloaked in privilege. Continue reading “Don’t Let Insurers Use Attorney-Client Privilege to Shield Claims Handling Documents”