Hurricane Ida & Tropical Storm Nicholas: Insurance Implications09/13/2021
On August 29, Hurricane Ida struck Louisiana as one of the most powerful storms in U.S. history, making landfall in the key petroleum production area of Lafourche Parish with top sustained wind speeds of 150 miles an hour. A nearly $15 billion complex of enhanced levees and floodwalls constructed after Hurricane Katrina ravaged New Orleans in 2005 prevented widespread loss of life, but major power outages contributed to a death toll of 26 in Louisiana as of September 8. Entergy, the state’s main utility, reported damage and outages far exceeding those caused by any prior hurricane. As the storm moved through the Northeastern United States on September 1–2, it generated unprecedented rainfall in New York, New Jersey and elsewhere across the region, leading to at least 50 deaths. AccuWeather has estimated the storm’s nationwide damage to reach $95 billion. Now, only two weeks later, Tropical Storm Nicholas is approaching the Gulf Coast and is expected to bring significant flooding and storm surge to the area.
Couch’s “Physical Alteration” Fallacy: Its Origins and Consequences09/03/2021 | Tort, Trial & Insurance Practice Law Journal
Look at virtually any COVID-19 case favoring an insurer, and you will find a citation to Section 148:46 of Couch on Insurance. It is virtually ubiquitous: courts siding with insurers cite Couch as restating a “widely held rule” on the meaning of “physical loss or damage”—words typically in the trigger for property-insurance coverage, including business interruption coverage. It has been cited, ad nauseam, as evidence of a general consensus that all property-insurance claims require some “distinct, demonstrable, physical alteration of the property.” Indeed, some pro-insurer decisions substitute a citation to this section for an actual analysis of the specific language before the court.
Hard Market For Cyber Insurance Drives Scrutiny of Security Practices09/02/2021 | Inside Cybersecurity
Increased ransomware attacks have led to dramatic hikes in the cost of cyber insurance. As prices rise, insurers are imposing tougher conditions and companies that haven’t been carrying cyber insurance may find the cost to be a barrier to entry.
Tamara Bruno, Mona Dajani and Matthew Morrison Named 2021 Law360 MVPs08/30/2021
Three Pillsbury lawyers— Tamara Bruno, Mona Dajani and Matthew Morrison—have been recognized by Law360 as 2021 MVPs. This is the second consecutive selection as a Project Finance MVP for Dajani. She is joined this year by Pillsbury partners Bruno and Morrison, who were named to the Insurance and Environmental categories, respectively.
Native American Tribes See Mixed Bag In Virus Coverage Suits08/25/2021 | Law360
Native American tribes and nations have seen mixed results in federal and state suits against insurance companies as they continue to bring litigation aiming to tap into billions of dollars of coverage for losses to casinos and resorts during the COVID-19 pandemic.
Pillsbury Lawyers Tally 225 Total Recognitions in Latest Best Lawyers Guides08/19/2021
Pillsbury received 203 individual lawyer rankings in the 2022 edition of Best Lawyers in America. The results acknowledge 136 Pillsbury lawyers with 69 individuals ranking in two or more practice areas.
Your CGL Policy May Provide Coverage for a Data Breach08/12/2021
As cybercrimes and data breaches continue to cause significant damage to companies of all types, policyholders are looking to their various insurance policies for coverage to help weather the storm and recoup losses. A recent decision by the U.S. Court of Appeals for the Fifth Circuit highlights the need for companies to review all of their policies for potential cyber-related coverage, including their CGL policies.
PFAS Enforcement and Liability Is on the Rise—Insurance Can Help08/05/2021
A key component of a company’s risk management function is to keep a close eye on new and developing sources of liability and to put in place appropriate insurance to respond in the event those liabilities ripen. In recent years, there has been a significant increase in legal and regulatory attention on per- and polyfluoroalkyl substances, more commonly known as “PFAS” or “forever chemicals.” PFAS are used in countless applications, and many companies across the country bear potential liability, from chemical companies to manufacturers to retailers to corporate end users. PFAS-related enforcement is focused on remedying impacts to both the environment and human health. Importantly, a company’s liability for PFAS-related contamination or bodily injury may be covered under historic general liability policies and/or modern-day pollution liability policies. As regulation and litigation relating to these ubiquitous substances continues to surge, corporate policyholders with potential exposure should be proactive to examine their insurance portfolios and position themselves for potential insurance coverage in the event they become a PFAS liability target.
Follow the Leader: How Ambiguities in Excess Follow-Form Policies Can Lead Policyholders Down a Crooked Path08/02/2021
A feature of most corporate liability insurance programs is the tower system of coverage: a primary policy with several overlying excess policies stacked atop one another collectively providing coverage up to a desired (or available) limit of liability. Depending on the size and liability exposures of a policyholder, a tower can consist of dozens of policies providing limits totaling hundreds of millions of dollars. Adding to this complexity, excess policies often share layers of coverage in quota share arrangements, sometimes subscribing to the same policy but more often issuing separate policies for a stated percentage of the quota share whole. To avoid as much as possible an impenetrable web of conflicting coverage terms, excess policies often “follow form” to the underlying coverage (usually to the primary policy) providing the insurer certainty and providing the policyholder a consistent tower of coverage. It is not always possible, though, to obtain clarity and certainty in tower placements. Insurance companies issuing excess coverage may not wish to agree to all the terms included in the underlying policies, and so may offer additional or differing terms, creating inconsistencies in an otherwise monolithic tower. For example, a primary insurer may refuse to cover punitive damages whereas an excess insurer may agree to do so, or vice versa.
Check Your Policies for Privacy Claim Coverage: New York City’s New Biometrics Law Is Now in Effect07/26/2021
Since July 9, 2021, New York City’s businesses have been subject to the requirements of a new biometrics law. Businesses operating in New York City should consider both their potential liability under these new requirements and whether their current insurance program protects them against associated risks.
The Need For Insurance Options To Protect NFTs07/13/2021 | Law360
Pillsbury Insurance Recovery & Advisory partner Richard Giller, Litigation associate Kirk Gandy and Intellectual Property associate Chaz Hales discuss the need for insurance options to protect nonfungible token (NFT) owners.
Insurance Considerations for Cannabis Delivery Services07/13/2021
The legal cannabis industry in the U.S. is growing at an unprecedented rate and is projected to reach $73.6 billion by 2027. While federal law still classifies marijuana as a Schedule I drug, many states have legalized both medical and recreational marijuana. As state restrictions ease, new business opportunities continue to emerge.
NCAA v. Alston Ruling Refuels Athlete Insurance Market07/09/2021 | Sportico
Richard Giller, an Insurance Recovery & Advisory partner at Pillsbury who represents athletes in injury insurance-related matters, weighs in on NCAA v. Alston as the consequences of the Supreme Court’s decision remain unsettled.
Covering the Highlight Reel: The Need for Insurance Options to Protect NFT Owners06/30/2021
Winning a championship ring is everything. Just ask the Los Angeles Dodgers, who won 11 National League West titles between their 1988 and 2020 World Series Championships and would likely have traded several of those division titles for more World Series championships. But, of course, not all rings are equal. Neither are sports collectibles.
Law360 Names Janine Stanisz a 2021 Rising Star for Insurance06/11/2021
Janine Stanisz, an Insurance Recovery & Advisory counsel in Pillsbury’s New York office, has been identified as one of just six attorneys throughout the U.S. as a Law360 Rising Star for 2021 in the insurance category.
Pillsbury Ranked in The Legal 500 United States 2021 Guide as a Leading Firm in 28 Practice Areas06/10/2021
In its 2021 guide, The Legal 500 United States ranked Pillsbury as a leader in 28 practices areas nationwide, spanning the firm’s litigation, regulatory and transactional practices and industries.
Zurich Pleads with Court to Ignore Science06/07/2021
In a recent federal court filing, Zurich American Insurance Company asked the district court to ignore the entirety of science regarding COVID-19 in order to support Zurich’s denial of all coverage for COVID-19 business interruption losses.
Insuring a King’s Ransom: The Role of Cyber Insurance in Ransomware Risk Management06/03/2021
Nearly 700 years ago, England captured King John II of France and held him for ransom for four million écus. But France could not afford to pay, and King John II ultimately traded his two sons as substitute hostages to try and secure his own release.
Today, it is not monarchs and their territorial kingdoms but computer systems and electronic kingdoms of data that are at risk. They are held hostage by foreign hackers who promise a key to unlock them in exchange for a king’s ransom in bitcoin. But unlike France in the 1300s, many companies today can and do pay.
The Duty to Defend a Privacy Claim Arises from Even Limited Publication of Biometric Identifiers06/01/2021
Do general liability policies provide coverage for limited disclosures of biometric data, such as fingerprints? The Illinois Supreme Court has concluded that they do.
New York Bad Faith Bill Targets Insurers Behaving Badly05/24/2021
When Frank Sinatra famously sang “if I can make it there, I’ll make it anywhere,” he was probably not crooning about making a claim for insurer bad faith. New York has indeed acquired a reputation as a difficult place to obtain an award of extra-contractual damages for an insurer’s unreasonable denial of coverage—one reason that insurance companies perceive New York to be a relatively favorable venue for coverage litigation. While New York law does in fact provide remedies for insurer misconduct, a bill recently introduced in the New York State Assembly could further expand policyholder protections. The legislation would create a private right of action for policyholders to sue their insurers (and for injured parties to sue tortfeasors’ insurers directly) for unreasonable refusal or delay of coverage and for categories of damages that include attorneys’ fees, consequential damages, and punitive damages. This sweeping legislation would allow New York to “be a part of it” along with many other states, like California and Washington, that have robust statutory protections against unfair claims practices.
Chambers USA Again Lauds Pillsbury, Ranking 43 Practices and 92 Individual Lawyers in 202105/20/2021
In its 2021 guide to the top lawyers and law firms in the United States, Chambers USA ranked Pillsbury as a leader in 43 practice areas across the country, with 92 Pillsbury lawyers earning 107 individual recognitions.
Reopening Workplaces: Employer Insurance Coverage for Sexual Harassment Claims Against Employees05/17/2021
For both good and ill, the COVID-19 pandemic has altered every facet of personal and professional life. For example, many employees have enjoyed unprecedented freedom to work remotely. However, with vaccines becoming more readily available, the time is soon approaching when people will return to their offices and places of work. With this return comes the potential for workplace-related disputes and, in their aftermath, claims for insurance coverage for the actions of employees, such as sexual harassment.
How Forum-Selection and Choice-of-Law Provisions in Insurance Policies Can Affect Coverage05/11/2021
Location matters. Some states are more protective of policyholder or consumer interests than others. And so, where the case is ultimately litigated, and what law applies, can have profound implications for a policyholder’s recovery.
Current Landscape of Cybersecurity Enforcement, Compliance and Insurance04/27/2021
You’re invited to join our panelists as they discuss the latest updates on cybersecurity enforcement, compliance best practices and insurance issues.
Richard Giller Discusses NIL Sports Insurance Issues in the “LEAD1 Angle” Podcast04/13/2021
Pillsbury Insurance Recovery & Advisory partner, Richard Giller, was featured on an episode of Lead1′s podcast “LEAD1 Angle with Tom McMillen” to discuss name, image and likeness (NIL) insurance issues and topics that athletic departments should be aware of.
Is Contractual Privity Required for Additional Insured Status? Courts Are Divided.04/12/2021
In a previous post, we addressed blanket additional insured endorsements and the role they play in passing insurance obligations downstream. In short, the purpose of a “blanket” endorsement is to grant additional insured status to any company as required in a written contract with the named insured. This obligation often begins in the prime contract where the owner requires additional insured status on the general contractor’s insurance. However, the general contractor typically attempts to pass this obligation downstream to its subcontractor by including a requirement in the subcontract that both the general contractor and owner are named as additional insureds. But what happens if there is no written agreement between the named insured and the company seeking additional insured status, or if there are multiple required additional insured entities and only some have contractual privity with the subcontractor?
Big Businesses Step Into Pandemic Insurance Coverage Fight04/08/2021 | Law360
Science and specificity are likely to take center stage in pandemic-related insurance litigation, as big businesses add their heft to an area of law being tested in state, federal and appellate courts across the country, Law360 reported.
Insuring Political Risk in the United States04/07/2021
On March 13, 2020, three plainclothes police officers forced entry into an apartment and fired some 32 shots. A woman sleeping in her bed was shot six times and died.
On May 25, 2020, a Black man was killed during a routine arrest when a police officer knelt on his neck for 9 minutes and 29 seconds.
On September 3, 2020, a woman drove her car into a crowd of Black Lives Matter protesters, injuring several people.
On December 12, 2020, four people were stabbed in the Nation’s capital following a day of protesting by competing groups over the results of a democratic election.
On January 6, 2021, thousands of insurrectionists pushed past a police blockade to breach the U.S. Capitol building while lawmakers were certifying the votes of a democratic election.
On March 29, 2021, an elderly Asian woman was physically and verbally attacked on her way to church.
On April 2, 2021, a man rammed his car into the security barrier near the U.S. Capitol building, killing one officer and injuring another.
Unfortunately, as we all know, these brief summaries are merely a snapshot of the political and racial unrest that has been unfolding in the United States over the last year. During these trying times, various companies, from Nike to Estée Lauder, have begun speaking out in support of Black lives, police reform and the Asian community. Many companies also wrote to Congress in support of free and fair democratic elections and urged Congress to certify the electoral vote following the United States’ 2020 presidential election. This type of corporate soul searching is commendable. And, for many companies, showing public support for racial justice and equality and/or other democratic principles is fundamental to their culture and positioning as leaders in their marketplace.
Insurance Law Issues Impacting The Cannabis Industry03/30/2021
Pillsbury Counsel Benjamin Tievsky will participate in a presentation discussing legal issues surrounding the cannabis industry presented by the NJSBA.
Law360 Reports: Versace Owner Says Routine Cleaning Can’t Stop COVID Harm03/25/2021
A Law360 article reports on an Amended Complaint filed by Pillsbury’s award-winning Insurance Recovery and Advisory Group in a significant insurance recovery action seeking coverage for COVID-19 business interruption. The article reports that the Amended Complaint:
- is a “beefed-up filing” where we “unleashed a deluge of scientific studies on COVID-19”; and
- stated that “the arguments outlined in Tuesday’s filing could be a potential avenue around Mama Jo’s v. Sparta Insurance Co., a heavily cited decision in which the Eleventh Circuit held that policyholders must show their properties required physical repairs to constitute direct physical loss. A number of insurers have pointed to that ruling in shooting down COVID-19 insurance cases.”
Pillsbury’s Construction and Insurance Practices Both Shortlisted in Chambers USA 2021 Awards03/16/2021
Both Practices Recognized in “Law Firm of the Year” Categories
Pillsbury has been shortlisted for both “Construction Law Firm of the Year” and “Insurance: Policyholder Law Firm of the Year” in the 2021 Chambers USA Awards. Inclusion in the 2021 guide is based on Chambers USA’s research and reflects notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service. The full list of 2021 nominees can be viewed here.
Claims-Writing Ghosts Come Back to Haunt Insurers03/12/2021
Insurers generally have a statutory duty to provide a legitimate factual and legal basis to deny a claim, and to discharge this duty sometimes engage in-house or outside counsel to assist in the investigation and handling of policyholders’ claims for coverage, including ghostwriting coverage correspondence and denials of coverage. The decision to outsource ordinary claims investigation and handling to legal counsel (putting aside that many claims handlers are lawyers) comes at a price. Two recent court rulings highlight that insurers’ decision to use in-house or outside counsel to ghostwrite coverage correspondence can come back to haunt them by waiving any alleged privilege.
NCAA to Pay $613 Million Revenue Distribution to Members if Tournament Completed03/03/2021 | CBS Sports
Amid the financial downturn of 2020 and the ongoing impact of the COVID-19 pandemic, the NCAA confirmed that the NCAA Tournament’s entire $613 million revenue distribution will be paid to association members as long as all 67 games are completed.
Texas Winter Storms: Evaluating Business Interruption Claims Following a Large-Scale Disaster03/01/2021
Responding to the Texas Winter Storm Crisis: Issue 2—Winter storms and wide-area events like the one that recently devastated Texas leave behind challenging questions about business interruption insurance coverage.
The recent winter storms that impacted the vast majority of Texas crippled businesses, snarled supply chains and damaged utilities. Many businesses in the region and across the United States also suffered longer-lasting economic damage as the physical damage is repaired and operations restored. Those businesses will rightly want and need to recover payouts under their property and business interruption insurance policies to help offset their losses.
Preparing Your Personal and Business Insurance Claims02/22/2021
Responding to the Texas Winter Storm Crisis: Issue 1
The world is witnessing yet another dramatic weather event, this time in the southern states, especially Texas. The severe winter conditions in Texas have caused unprecedented hardship for Texans and devasting damage for nearly every industry sector. The extended and episodic power outages, cell phone and internet service disruption, water crisis, frozen roads, disruption of transportation and supply chains, shuttered industrial facilities and damage to public and private infrastructure will have a lasting impact on the region. While the current focus rightfully is on restoring critical systems and services to ensure the safety and well-being of Texans, as the crisis subsides there will be wide ranging legal and commercial considerations that require immediate and informed decision making.
An Insurer Takes Flak Over The College Athlete Coverage Bubble02/19/2021 | Sportico
In 2013 International Specialty Insurance (ISI) hired former head of Hanleigh Insurance’s U.S. sport and entertainment division, Chris Larcheveque, marking the start of an explosion of new policies being issued, followed by turmoil.
Richard Giller Discusses Esports Risks in Business Insurance Magazine02/18/2021 | Business Insurance Magazine
In Business Insurance Magazine’s Specialty & Emerging Risks 2021 issue, Pillsbury Insurance Recovery & Advisory partner Richard Giller discusses the potential physical risks involved with esports.
COVID-19 Business Interruption Losses: Time is of the Essence to Pursue Coverage02/11/2021
“Service of Suit” limitation period to file is less than a month away.
The United States declared a national emergency in response to COVID-19 on March 13, 2020, and states quickly followed with stay-at-home orders that impacted businesses and institutions nationwide. More than 10 months have passed since the COVID-19 pandemic emerged in the United States and the prevalence of the virus has had significant impacts, not only with respect to the number of people infected and lives lost, but also to the widespread physical damages and economic losses suffered by businesses.
Tamara Bruno Named a 2020 Insurance Rising Star by International Financial Law Review02/09/2021
Tamara Bruno, a Houston-based partner for Pillsbury’s nationally-ranked Insurance Recovery & Advisory practice, was named an “Insurance Rising Star” by the International Financial Law Review (IFLR) in their 2020 Americans Rising Star Awards.
Is Your Insurance Program Ready for the Biden Administration?02/03/2021
The Biden administration has hit the ground running with executive orders, regulatory and legislative priorities, and cabinet-level and other top posts being announced on a daily basis. Our public policy colleagues have been closely tracking many of the policy priorities of the new administration and highlighting important regulatory and legislative developments that businesses can expect coming down the pipeline.
California Federal Court Offers Clear Pathway to Coverage for Coronavirus/COVID-19-Related Business Interruption and Civil Authority Losses01/28/2021
Since the beginning of the COVID-19 business interruption insurance coverage battles, insurers have labored to pour cold water on these claims—often hiring the biggest and wealthiest law firms in America to crush hair salons, motels, restaurants and bars represented by solo practitioners or lawyers with little prior insurance coverage experience. Not surprisingly, insurers have been successful in many of these early David-versus-Goliath cases (many of which involved policies with virus exclusions that the policyholders were seeking to avoid by pointing to government shutdown orders—and not the virus—as the sole cause of their loss), as we recently discussed. But the tide is turning as, increasingly, courts are applying the policies as written—rather than how insurers wished they had been written—and finding clear paths to coverage for COVID-19 claims. One such recent California federal district court case, Pez Seafood DTLA, LLC v. Travelers Indemnity Co., is a must-read for policyholders with COVID-19 losses, especially in California.
Don’t Be Fooled by the Numbers: How Insurance Companies Are Attempting to Create a False Narrative on COVID-19 Insurance Claims01/26/2021
Since the novel coronavirus landed in America, the insurance industry has worked hard to create the impression that there is no coverage for business interruption losses resulting from the pandemic. For the most part, insurers have discussed the “intent” of the policies and avoided specific policy analysis. The insurer disinformation effort recently started including citations to lists of court decisions obtained to date—as if insurance coverage should be decided not on the terms of the contracts at issue but instead on the basis of an early win/loss record. A review of court statistics, along with two recent court decisions, expose the fallacy of the insurers’ argument.
Insurance Implications of “Returning to Normal”01/14/2021
If 2020 was the year of the pandemic, 2021 appears to be shaping up to be the year of “returning to normal.” So far, most coverage disputes related to COVID-19 have been reactions to direct losses caused by the virus and related measures (i.e., relating to business interruption or event cancellation). In the upcoming months and years, however, many businesses will have to make proactive decisions on how to return to work. It is important for businesses to understand how those decisions may impact a variety of potential insurance coverages, including possible D&O coverage, as this post will discuss. Additionally, now that insurance companies have a better understanding of the types of risks involved with COVID-19, coverage terms and exclusions in policies issued after the pandemic may become drastically different.
Reminder: If You Have a COVID-19 Insurance Claim, Be Aware of Impending Policy Deadlines12/15/2020
The United States declared a national emergency in response to COVID-19 on March 13, 2020, and states quickly followed with stay-at-home orders that impacted businesses and institutions nationwide. It has now been nine full months since the pandemic emerged in the United States and businesses began to shut down in the face of contamination and civil authority orders effecting restrictions on access to and use of their premises.
Recent Court Decisions Reflect Possibility of Coverage for Losses Suffered by Colleges and Universities Due to COVID-1912/11/2020
Like many businesses, colleges and universities across the country have had to dramatically alter their operations in response to the coronavirus pandemic. Most students completed the spring 2020 semester through online instruction after campuses closed in response to rising infection rates and government shutdown orders. According to the Chronicle of Higher Education, roughly one-quarter of institutions of higher education are providing instruction this fall semester either fully or primarily in person, one-quarter are using a hybrid model, and the remainder operating fully or primarily online.
Pillsbury Elevates 11 New Partners for 202112/07/2020
Pillsbury announced that it has elevated 11 lawyers to partner, effective January 1, 2021. This year’s class reflects the firm’s broad strengths across industries and practices. The newly named partners advise clients in each of the firm’s four core industries—Technology & Media, Energy, Financial and Real Estate & Construction—and handle everything from business-critical financings and transactions to complex regulatory issues and high-stakes litigation.
Pillsbury Insurance Recovery & Advisory Practice Hailed As Practice Group of the Year by Law36011/30/2020
Following another strong year of successes for clients, Pillsbury’s Insurance Recovery & Advisory practice has been selected by Law360 as a 2020 Practice Group of the Year winner. This latest recognition marks the group’s fourth such award, having previously earned Practice Group of the Year by the publication in 2017, 2016 and 2010.
Striking the Right Balance: Rep & Warranty Due Diligence Coverage11/16/2020
Rep and Warranty Insurance (RWI) generally provides coverage for financial losses resulting from breaches of representations and warranties made by target companies or sellers in company purchase agreements. Like all insurance policies, RWI policies have exclusions. However, those exclusions, like RWI insurance, are highly specialized.
The U.S. News – Best Lawyers 2021 “Best Law Firms” List Awards Pillsbury with 90 Tier 1 Practice Rankings11/05/2020
Pillsbury has earned a total of 162 national and regional practice rankings in the latest U.S. News – Best Lawyers 2021 “Best Law Firms” survey. Of those rankings, 27 were listed as national Tier 1 and 63 were listed as Tier 1 within their respective metropolitan markets.
Navigating D&O Fiduciary Duties in the Zone of Insolvency11/05/2020
Pillsbury Counsel Benjamin Tievsky participates in a Strafford webinar providing bankruptcy counsel with a review of fiduciary duties of loyalty and due care owed by directors and officers to the corporation and shareholders as a company heads into insolvency and when those duties may be enforced by creditors.