Hunton Insurance Recovery Blog

Benchmark Litigation has named insurance coverage partners Andrea DeField and Geoffrey Fehling to the publication’s 40 & Under List. Benchmark Litigation is the definitive guide to America’s leading litigation firms and attorneys. The 40 & Under List honors the most notable up-and-coming litigation attorneys in the United States. Those named to the list have proven their eligibility as individuals at the partner level of their respective firms who are 40 years of age or younger.

From business interruption to biometric privacy, the first half of 2021 has already seen its fair share of significant insurance rulings. Law360 recently interviewed Hunton insurance counsel Geoffrey Fehling for an article analyzing the biggest insurance coverage cases and how they have impacted the legal landscape for policyholders and insurers.

A New York appellate court recently held that renewable bio-diesel fuel manufacturer BioEnergy Development Group LLC may pursue tens of millions of dollars in damages from its insurers under two all-risk insurance policies, including amounts in excess of the policy limits, where the insurers refused to pay claims in a timely manner.

Congratulations to Hunton Andrews Kurth LLP insurance recovery lawyer, Geoffrey Fehling, on his confirmation by the DC Bar Foundation’s Board of Directors to the organization’s Young Lawyers Network Leadership Council.

A Florida district court recently held that an insurer wrongfully refused to defend a Miami-based strip club in a lawsuit filed by 17 models claiming that the club used their images to promote its business without their authorization. The insurer was required to defend the club for allegations of defamation under the policy’s personal and advertising coverage even though 16 of the 17 plaintiffs’ claims alleged conduct outside the covered policy period and no plaintiffs brought a cause of action for “defamation.” The decision highlights the broad duty to defend, in Florida and elsewhere, that policyholders should emphasize when pursuing coverage.

The Seventh Circuit recently withdrew its controversial opinion that broadly interpreted an exclusion in Emmis Communications Corporation’s D&O policy, thereby barring coverage for losses in connection with claims of circumstances “as reported” under Emmis’ other insurance policy. The reversal, while very rare, was the correct result that alleviated concerns about the chilling effect the court’s broad reading of the exclusion may have on policyholders’ decisions to provide notice under all potentially applicable insurance policies.

In a recent article in the ABA Business Law Section publication Business Law Today, Hunton insurance recovery lawyers Syed Ahmad and Geoffrey Fehling discuss several important D&O insurance coverage issues to consider in M&A transactions. In the article, the authors discuss the intersection of M&A and insurance and how mergers, acquisitions, and other deals can impact the potential risks and protections afforded by D&O and other insurance policies . A copy of the article can be found here.

Following a six-day trial, a Texas jury found that Great American Insurance Company breached its policy with a hydraulic fracturing company and engaged in unfair settlement practices when it refused to pay for loss the company sustained in a well accident. The decision highlights the need to vigorously pursue coverage using all information available and the benefits of leveraging state statutory protections governing unfair claims settlement practices to ensure that insurers handle claims in a prompt, fair, and reasonable manner.

A federal appeals court reversed an auto parts manufacturer’s summary judgment win, construing a policy limitation on flood hazards to apply broadly to all types of losses, even though the limit “does not expressly say what losses it limits.” In Federal-Mogul LLC v. Insurance Company of the State of Pennsylvania, manufacturer Federal-Mogul suffered more than $60 million in property and time-element losses following a 2011 flood in one of its factories in Thailand. Federal-Mogul submitted a claim to its insurer, but the insurer refused to pay more than $30 million because the flood occurred in a high hazard flood zone, to which the insurer argued a sublimit in the policy applied.

A federal court in Pennsylvania has held that Liberty Mutual must defend its insured, Hershey Creamery Company, in an intellectual property infringement lawsuit because the suit raises claims that potentially implicate coverage under the policies’ personal and advertising injury coverages. The court further found that the alleged wrongful conduct was not subject to the policies’ IP infringement exclusion.

The Tennessee Supreme Court has refused to construe an ambiguous definition of actual cash value to allow for deduction of labor costs as part of depreciation calculations where that subset of repair costs are not clearly addressed in the policy. Despite the split of authority nationwide, the Tennessee case presents a straightforward application of policy interpretation principles to a common valuation issue in first-party property claims.

Gatwick airport has been shut down since Wednesday night UK time due to the presence of multiple drones around the perimeter of the runway. A drone was first spotted Wednesday evening in the vicinity of Gatwick’s runway. After being briefly re-opened several hours later, the runway was shut down for good when several more drones were discovered. Given the public safety risk of attempting to shoot the drones down from the ground, law enforcement is instead focusing on identifying and apprehending the drone operators to ensure that the area is safe for air travel.

Hunton Insurance Coverage attorneys Syed Ahmad and Geoff Fehling contributed to the firm’s Recall Roundup, a monthly publication canvassing consumer product and retail recalls and related litigation.  In the October issue, Ahmad and Fehling discuss two recent decisions with potentially broad implications.  In Lake Country Foods, Inc. v. Houston Casualty Co., No. 18-CV-734 (E.D. Wis. filed May 11, 2018), nutritional supplement manufacturer Lake Country Foods, Inc., (“LCF”) filed an insurance coverage complaint seeking to enforce its rights under a product contamination policy issued by Houston Casualty Company (“HCC”) arising from a salmonella contamination incident.  In the October Recall Roundup, Ahmad and Fehling discuss the potential impact that the insurer’s counterclaims seeking reimbursement of the approximately $1.2 million advance payment it made in response to the alleged salmonella contamination incident might have on the pending insurance recovery dispute.

The Sixth Circuit recently upheld dismissal of KVG Properties, Inc.’s claims under a first-party property policy arising from damage to KVG’s office spaces due to tenants’ use of cannabis growing operations. We have been tracking the KVG case closely and previously reported on KVG’s initial appeal and Westfield’s retort on why the district court correctly dismissed the claims. Although there was no coverage for KVG under the particular facts of this case, the Sixth Circuit’s decision raises several important insurance issues for policyholders to consider and previews likely battlegrounds for future cannabis coverage disputes, many of which are precipitated by the variances in federal and state cannabis law.

A New York district court has held that an insurer must provide coverage under three excess insurance policies issued in 1970 for defense and cleanup costs incurred by Olin Corporation in remediating environmental contamination at seven sites in Connecticut, Washington, Maryland, Illinois, New York, and Washington. Seven of the remaining sites at issue presented questions of fact for trial, with only one site being dismissed due to lack of coverage.

The California Department of Insurance recently approved three new insurance carriers to provide coverage for the emerging cannabis industry. Insurance Commissioner Dave Jones announced last week that The North River Insurance Company, United States Fire Insurance Company, and White Pine Insurance Company will all begin offering surety bonds for cannabis businesses by the end of the month.

A Connecticut court recently denied a motion to compel appraisal of a claim for coverage of a commercial property damage claim, holding that, where the insurance policy at issue provides for appraisal of disputes related to the value or quantum or a loss suffered—not the rights and liabilities of the parties under the policy—appraisal is premature. The decision relied on law that equates insurance appraisal to arbitration and follows a number of decisions holding that parties cannot expand the scope of appraisal clauses to resolve questions of coverage or liability where, as in this case, those issues are not supported by the applicable policy language.

Drug-maker Pfizer and one of its excess insurers, North River, are in the middle of a contentious dispute regarding the proper forum for their coverage dispute over directors and officers liability insurance following both parties’ race to the courthouse to file competing lawsuits in 2015. Pfizer argues that its own preferred forum of Delaware (where Pfizer is incorporated) is correct, while North River counters that New York (where Pfizer’s headquarters and its broker are located) is the proper forum. The dispute, which involves competing motions in Delaware and New York courts, highlights the importance of both the timing and location of forum selection in litigating insurance coverage disputes.

Last month, we reported on the ongoing insurance coverage dispute between commercial landlord KVP Properties, Inc. and its property insurer, Westfield Insurance Company. The dispute arises from an October 2015 DEA raid on KVG-owned rental units in Novi, Michigan, which uncovered damage to the units related to the tenants’ marijuana growing operations. The arguments raised by KVG on appeal highlight a number of important marijuana-related coverage issues, which Westfield has now addressed in opposition.

In an article recently featured in Westlaw Journal Insurance Coverage, my colleagues Lorie Masters, Michael Levine, and I discuss significant cases and other insurance developments from 2017. The full article can be found here.

With 2017 now in the rearview mirror, my colleagues Michael Levine, Lorie Masters, and I take the opportunity in this year’s annual review to reflect on the cases and other insurance developments that made the year memorable and will influence coverage decisions and disputes in 2018 and beyond.

Thank you and Happy New Year to all of our readers!

In today’s interconnected society, a cyber breach is inevitable. For energy companies in particular, the threat is even more acute as cyber security improvements lag behind the rapid digitalization in oil and gas operations. One recent cyber security report stated that 68% of respondents reported that their organization experienced at least one cyber compromise. And, just last week, it was disclosed that hackers used sophisticated malware, called “Triton,” to take control of a key safety device at a power plant in Saudi Arabia. Find our analysis of this latest attack on the blog here .

In what has been described as a “watershed” cyber incident, hackers recently used sophisticated malware—dubbed Triton—to take control of a key safety device installed at a power plant in Saudi Arabia. One of the few confirmed hacking tools designed to manipulate industrial control systems, this new breach is part of a growing trend in hacking attempts on utilities, production facilities, and other critical infrastructure in the oil and gas industry. The Triton malware attack targeted the Triconex industrial safety technology made by Schneider Electric SE. The attack underscores the importance of mitigating this and other similar risks through cyber and other traditional liability insurance as part of a comprehensive cybersecurity program.

Earlier this month, the California Supreme Court agreed to review Montrose Chemical Corporation’s appeal from a September appellate court ruling that rejected Montrose’s preferred “vertical exhaustion” method of exhausting excess-layer policies in favor of a policy-by-policy review to determine which policies are triggered. The California high court’s grant of Montrose’s petition for review is potentially significant in clarifying the appropriate excess policy exhaustion trigger under California law, not to mention in addressing a significant insurer defense in Montrose’s longstanding coverage dispute over environmental insurance coverage, which has been winding its way through California courts for more than 25 years.

The Fifth Circuit recently upheld the dismissal on summary judgment of a policyholder’s claim under a commercial crime insurance policy, affirming the trial court’s narrow interpretation of the terms “owned” and “loss,” concluding that the policyholder did not “own” the funds at issue or suffer a “loss” when it loaned those funds to the fraudsters. In so holding, the court ignored state court precedent concerning construction of those same terms.

In Cooper Industries, Ltd. v. National Union Fire Insurance Co. of Pittsburgh, Pa., No. 16-20539 (5th Cir. Nov. 20, 2017), Cooper invested its pension-plan assets into what proved to be a multimillion-dollar Ponzi scheme. Over the course of many years, Cooper invested more than $175 million into various equity and bond investments managed by fraudsters who used the investment funds in furtherance of the Ponzi scheme. After discovering the fraud, Cooper recouped a large portion of its investment and sought coverage from its commercial crime insurer for the unrecovered $35 million. The policy limited coverage to “loss” of property that Cooper “owned.” Neither term was defined in the policy.

Last week, Golden Bear Insurance Company became the first admitted insurer approved by the California Department of Insurance to provide insurance coverage for marijuana companies. Golden Bear will now begin offering first- and third-party insurance coverage specifically targeting marijuana companies in the state.

In a recent Client Alert, Hunton & Williams insurance attorneys Lorelie Masters, Michael Levine, and Geoffrey Fehling discuss the importance of reviewing historical liability insurance policies and the potential benefit these policies can have on minimizing exposure to environmental hazards. In Cooper Industries, LLC v. Employers Insurance of Wausau, et al., No. L-9284-11 (N.J. Super. Ct. Law Div. Oct. 16, 2017), a New Jersey trial court held that an electrical products manufacturer was entitled to coverage rights under commercial general liability policies issued to a predecessor company for environmental remediation costs stemming from a U.S. Environmental Protection Agency cleanup of a 17-mile stretch of the Passaic River in New Jersey.

Earlier this week, Canada’s transport minister announced that a drone had collided with a commercial aircraft, the first confirmed collision of its kind in North America. Thankfully, the aircraft sustained only minor damage and was able to land safely. But this recent incident, which many commentators believed was inevitable given the proliferation of consumer and commercial drones, highlights the potential risks associated with drone operations.

Corporate policyholders should carefully consider insurance coverage implications when structuring mergers, acquisitions, or other transactions that may impact available insurance assets. A New Jersey federal court recently granted summary judgment for a surviving bank asserting coverage rights under a D&O policy issued to an entity that dissolved in a statutory merger, based in part on the wording of the parties' merger agreement structuring the transaction in accordance with the New Jersey Business Corporation Act ("NJBCA").

Does the term "wrongful act" always require that the conduct at issue be "wrongful"? In at least one D&O insurance policy, the answer may not be as clear as it seems. A federal district court in Texas recently denied an insurer's motion to dismiss a company's coverage claim for nearly $5 million in costs the company incurred defending a statutory appraisal lawsuit filed by disgruntled shareholders, citing the D&O policy's "terribly" written definition of "wrongful act," which may have been written so broadly that it provides coverage for "acts" that are not actually "wrongful."

Consulting firm Ernst & Young recently announced that it is collaborating with Microsoft, data security firm Guardtime, and shipping and logistics conglomerate Maersk to create a marine insurance platform based on blockchain technology. The companies anticipate that their blockchain-based product—to be implemented globally beginning in early 2018—will connect clients, brokers, insurers, and third parties to "distributed common ledgers that capture data about identities, risk and exposures" and integrate this information with insurance contracts. The platform's capabilities include: "the ability to create and maintain asset data from multiple parties; to link data to policy contracts; to receive and act upon information that results in a pricing or a business process change; to connect client assets, transactions and payments; and to capture and validate up-to-date first notification or loss data."

On August 29, 2017, my colleagues Lawrence J. Bracken, Michael Levine, and Geoffrey Fehling published an article in Law360 discussing the Ninth Circuit's recent decision rejecting coverage for the Los Angeles Lakers' director's and officer's (D&O) insurance claim arising from a fan's class action lawsuit under the Telephone Consumer Protection Act (TCPA), based on a broadly-worded invasion of privacy exclusion in the Lakers' D&O insurance policy. A split Ninth Circuit panel held that "[b]ecause a TCPA claim is inherently an invasion of privacy claim, [the insurer] correctly concluded that [the claimant]'s TCPA claims fell under the Policy's broad exclusionary clause." The full article is available here.

From disaster preparedness and workplace safety to autonomous deliveries and performance arts, companies worldwide increasingly rely on drones as a natural extension of their business. Recent Federal Aviation Administration forecasts predict that nearly 4 million drones—over 420,000 of which will be used for commercial operations—will be operating in the U.S. by the year 2021.

Earlier this month, the Washington Supreme Court reaffirmed coverage for injuries for carbon monoxide, holding that an insurer acted in bad faith when it improperly relied on an absolute pollution exclusion to deny coverage for a lawsuit involving alleged release of carbon monoxide gas inside a home.

Highlighting the continued problems faced by policyholders in obtaining coverage for "computer fraud," a Michigan district court recently held that a manufacturer could not recover $800,000 in funds lost after an employee mistakenly wired payment for legitimate vendor invoices into a fraudster's bank account after receiving a spoofed e-mail requesting payment. In American Tooling Center, Inc. v. Travelers Casualty and Surety Company of America, No. 16-12108 (E.D. Mich. Aug. 1, 2017), the district court applied state law favoring a narrow interpretation of the crime policy's computer fraud provision to hold that the policyholder had not suffered a "direct" loss that was "directly caused" by the use of any computer.

The frequency and magnitude of Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.) investigations and claims continue to grow. Last month, the U.S. Securities and Exchange Commission announced that Halliburton Co. had agreed to pay $29.2 million in fines and penalties to settle allegations that its operations in Angola and Iraq violated the FCPA's books and records and internal accounting controls provisions. In its press release, Halliburton vowed that it had "continuously enhanced its global ethics and compliance program" since first receiving an anonymous tip in December 2010, but the recent settlement serves as a reminder that even the most robust compliance program cannot guarantee that FCPA violations will not occur.

Last month's post summarized key findings from the recent emerging risk report issued by Lloyd's of London and risk-modeling firm Cyence, highlighting several key findings about cyber risks and the cyber insurance market more generally. In this post, we provide a closer look at some of the more significant cyber coverage issues discussed in the report, a full copy of which can be found here.

Earlier this week, HBO announced that it had suffered a "cyber-incident" involving the compromise of "proprietary information" that reportedly includes forthcoming episodes and scripts from popular HBO shows such as Game of Thrones. The HBO breach is the most recent in a growing list of cybersecurity issues faced by Hollywood studios this year. In an e-mail to HBO employees, CEO Richard Plepler called the cyber attack "disruptive, unsettling and disturbing."

A Georgia district court recently denied an insurer's attempt to recoup defense costs, holding that even where the court previously determined that coverage was barred under the policy's pollution exclusion, the insurer could not "rewrite the record" or clarify its "defective" reservation of rights letters to show that it fairly informed the policyholder of its coverage position, which is a prerequisite to recoupment of defense costs.

As discussed in prior posts, recent cyber events, such as the “Wanna Cry” ransomware attack, serve as important reminders to policyholders that cyber insurance should remain a priority for any business facing potential exposure from a cyber event. A recent report further underscores the potential impact of a major global cyber event, estimating that the resulting loss could exceed $53 billion worldwide, on par with the damage caused by catastrophic natural disasters such as hurricanes.

Earlier this week, Lloyd’s of London issued an emerging risk report, co-authored with risk-modeling firm Cyence, that examines several plausible cyber-risk scenarios to help insurers and policyholders understand cyber liability and risk exposures in an area that the report concludes is relatively underdeveloped compared with other classes of insurance.

In the linked Client Alert, my colleague, Geoff Fehling, discusses the recent federal appellate decision in Camacho v. Nationwide Mutual Insurance Co., No. 16-14225, 2017 WL 2889470 (11th Cir. July 7, 2017), where the Eleventh Circuit affirmed a Georgia district court’s refusal to disturb a jury award for the policyholder arising from the insurer’s failure to accept a time-limited settlement demand, holding that the lower court’s order was “thorough and well-reasoned.”