Hunton Insurance Recovery Blog

Congratulations to Adriana Perez on her selection to the National Association of Women Lawyers’ (NAWL) 2023 Rising List. Adriana is a member of Hunton Andrews Kurth’s national Insurance Recovery practice and is based in the Firm’s Miami, Florida office.

The Eighth Circuit has affirmed that an AIG affiliate must cover the full $32 million loss stemming from an employee’s embezzlement scheme. The court found that not only was National Union Fire Insurance Company of Pittsburgh (“National Union”) liable for the $3 million the employee actually stole, but that the plain language of the commercial crime policy also required coverage for the $29 million in excess costs her scheme caused Cargill to endure.

On Monday, March 6, the US Supreme Court agreed to hear an insurance coverage dispute, Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC.  Insurance cases are few and far between in the high court, so both policyholders and their insurers will be watching the Great Lakes case with great interest.  Notably, while the case involves the specialized area of maritime law, how the Supreme Court chooses to address the choice-of-law issue it presents could have much broader implications.

A New York Federal judge recently ordered a directors and officers liability insurer to pay $4.5 million that an investment firm had spent defending an arbitration proceeding brought by a former executive. The court found that allegations of constructive termination and related retaliation triggered an exception to the D&O policy’s insured-versus-insured exclusion for employment-related wrongful acts, rejecting the insurer’s argument that, notwithstanding the former executive’s count for constructive termination, his status as an “Insured Person” triggered the exclusion where the majority of counts in the arbitration related to alleged breaches of the firm’s operating agreement.  

Update: On May 1, 2023, the New Jersey appeals court affirmed the trial court's decision that a war exclusion did not bar $1.4 billion in coverage for Merck’s losses stemming from the NotPetya attack.

On June 27, 2017, the skies over New Jersey were clear and the ground steady. But Merck & Co., a New Jersey-based pharmaceutical company, was under attack. Malware ripped through its computers, damaging 40,000 of them and causing over $1.4 billion in losses.

Merck was not the sole target.^[1] Dubbed “NotPetya,” the virus tore through the US economy,^[2] and did an estimated $10 billion in damage. The US Department of Justice charged six Russian nationals, alleged officers of Russia’s Intelligence Directorate (the GRU), for their roles in the NotPetya attack, among others. The attackers’ goal, according to the DOJ, was:

Effective February 28, 2023, Hunton Andrews Kurth LLP has promoted insurance recovery lawyer Kevin V. Small, along with three other attorneys, to Counsel.  “Kevin quickly established himself as an integral part of our practice, particularly in the area of transactional liability insurance,” said practice head Syed Ahmad.  Ahmad added, “Kevin recently led the drafting of a Lexis Practice Note on Representations and Warranties Insurance that will be published in the coming weeks and provides rare insights on common issues arising in the claims context.” “Kevin makes ...

As discussed in a recent client alert, a Delaware court issued a significant opinion in a directors and officers liability claim involving a special purpose acquisition company. In an issue of first impression in Delaware, the Superior Court in Clover Health Investments Corp. v. Berkley Insurance Co. held that directors and officers of the post-merger entity were “Insured Persons” under the SPAC’s D&O policy because they were acting in “functionally equivalent” roles to directors and officers of the SPAC when the alleged pre-merger wrongful conduct took place. The court’s pro-policyholder rulings on coverage for government investigations, based on an ambiguous definition of “Claim,” and allocation of defense costs under the Larger Settlement Rule also have potential ramifications on future D&O claims in Delaware outside of SPAC deals.

Hunton insurance recovery group partner Larry Bracken and associate Rachel Hudgins were each recognized in Georgia Super Lawyers 2023’s most recent publication. Larry Bracken was recognized as a Super Lawyer, and Rachel Hudgins was selected as a Rising Star for Insurance Coverage.

A recent settlement filed by the Federal Trade Commission (FTC) and GoodRx may merit a review of your cyber insurance coverages. Earlier this month, the FTC took enforcement action for the first time under its Health Breach Notification Rule against the telehealth and prescription drug provider, GoodRx, for failing to notify consumers of its unauthorized disclosures of personal health information.

As detailed in a February 27 Hunton client alert, the Health Breach Notification Rule generally requires that vendors not covered by the Health Insurance Portability and Accountability Act (HIPAA) of personal health records give notice in the event of a “breach of security,” which is defined to include “unauthorized acquisition” of personal health records.

Earlier this month, the US District Court for the Northern District of Illinois ruled that Call One Inc., a tele-communications company, must litigate a claim by its insurer, Berkley Insurance Company, seeking to rescind coverage based on the information provided by the policyholder in its application for insurance. The coverage dispute is illustrative of insurers’ increased scrutiny of the answers to all policy application questions—including where no response is provided—to identify new or additional grounds to avoid coverage, even if it requires rescission of the policy. Policyholders should thus carefully consider all questions and requirements during the policy application process (including during renewal) to avoid potential disclosure disputes should a claim arise.