Hunton Insurance Recovery Blog

Blockchain technology has been touted as inherently reliable for years. More recently, collectors of Non-Fungible Tokens (NFTs) have explored expanded uses for that novel technology. Some courts have bought in and, in doing so, recently authorized a use that perhaps no one had imagined when NFTs first entered the mainstream: service of process.

As we have discussed in prior parts of this series, the insurance industry has developed an array of policies specifically tailored to cover cryptocurrency claims, and some of these policies may also cover certain NFT claims. Separate and apart from these tailored policies, policyholders with NFT claims also may look to traditional forms of insurance. 

NFTs are collectible and one of a kind, yet digital. The most common NFT is a type of visual art image like a digital painting, a photograph or generative designs (created by artificial intelligence). However, this high-level definition doesn’t do justice to just how pervasive these have become. In addition to traditional artwork, there are:

Several of the largest brokers have developed a considerable bench. For example, Marsh has a Digital Asset Risk Team (DART);^[1] Lockton has its Lockton Emerging Asset Protection Team (LEAP)^[2] and Aon and others have their own teams.^[3]

There are multiple advantages to procuring cryptocurrency insurance through brokers that have deep experience in this particular area of insurance. These may include:

Last week’s discussion focused on the evolution of the insurance marketplace for digital assets. This section focuses on the marketplace as it now exists, providing examples of products being bought by companies and consumers facing cryptocurrency risks. 

In the 18^th Century, underwriting desks at what came to be known as Lloyd’s of London were developed to share or transfer risks associated with shipping.^[1] Availability of risk sharing, or insurance, provided protection for maritime investors and facilitated increased levels of investment and thus increased levels of maritime activity. Risk transfer has become an essential part of the development of a marketplace for many products. 

In the early years of cryptocurrency, there were no insurance products specifically designed to cover cryptocurrency-related losses. Much like the presence of insurance fosters development of a marketplace, the absence of insurance hinders it.

In the early years of cryptocurrency, there were no crypto-specific insurance coverages. Instead, policyholders sustaining losses were left to try to access coverage under traditional insurance policies such as:

Who can incur losses associated with cryptocurrency or digital assets? The real question is who uses them. 

Among the most obvious users would be exchanges in which cryptocurrency is traded. It has been reported that the largest insurance market in the cryptocurrency industry consists of exchanges that insure against thefts from cryptocurrency hackers. Among the more prominent exchanges are Coinbase, Crypto.com and Gemini. Similarly obvious are the third-party custodians that store cryptocurrency and other forms of digital assets on consumers behalf such as BNY Mellon Crypto Currency or Fidelity Digital Assets. They provide safekeeping of digital assets including keys and ensure accessibility. 

Crypto markets are experiencing the greatest crash in their history to date. The value of a Bitcoin (BTC) has plummeted 70% from its peak and Ethereum (ETH) has fallen 77%. Since last November, the value of cryptocurrency tokens has lost $2 billion in value.^[1] As noted financial publication Barron’s put it: “Crypto is having a ‘Lehman moment,’ a shattering of confidence triggered by plunging asset prices, liquidity freezing up, and billions of dollars wiped out in a few scary weeks.”^[2] Cryptocurrency companies are halting withdrawals and transfers, platforms are seizing up, and regulators are circling.^[3]

On October 16, 2019, Hunton Andrews Kurth insurance lawyers Michael S. Levine and Daniel Hentschel discussed insurance coverage issues concerning blockchain technology and cryptocurrencies in an article published by IRMI (Insurance Risk Management Institute, Inc.). The full article is available here. In the article, the authors discuss the potential risks associated with the use of the revolutionary technology and the potential coverage gaps that may arise in certain insurance policies.

Blockchain, or distributed ledger technology (“DLT”), is already proving to be a game-changer for businesses globally and across sectors. But is it secure? And can insurance help protect against risks and, thus, help advance the development of this technology?

On May 30, 2018, Hunton Andrews Kurth LLP launched its Blockchain Legal Resource, a blog featuring discussion and analysis of the latest trends and developments in blockchain (distributed ledger) technology.