In a decision with important implications for “long-tail” environmental contamination coverage claims in the Northwest, a federal court in Washington state has held that information from a confidential “allocation” proceeding in a Superfund site does not need to be produced to an insurer for one of the parties. The decision provides comfort to those hoping that this mediation-like process for resolving liability for historical contamination would not impair their insurance rights. If the decision had gone the other way, the allocation ADR proceeding might have ruptured, forcing parties into expensive and lengthy litigation. Continue Reading
Common Gaps in Coverage for Data Security Incidents
Businesses of all sizes are now commonly purchasing “cyber insurance” coverage to protect against financial losses from data security incidents. But these policies—which are not written on standardized forms—can vary widely in what they cover. Here are some common gaps in coverage to watch out for.
Inadequate business income or business interruption coverage.
Many businesses that have had a data-security incident find that the disruption to their business is more harmful than the data that is stolen or otherwise compromised. Coverage is available for business income lost due to an incident, but it is often subject to a sub-limit that may be inadequate, or there may be a waiting period before the coverage will kick in and it may be too late to provide real relief.
Considering Employment Practices Liability Insurance? Some Things to Consider.
The upsurge in sexual harassment complaints and gender-based pay discrimination has many employers understandably concerned about their exposure. More and more employers are looking to protect themselves against employment-related claims using Employment Practices Liability (EPL) insurance. The attorney fees alone to defend a claim by an employee can be staggering. EPL coverage can certainly provide some peace of mind – but there are things to watch out for.
In-House Counsel: Take Care in Contracting for Additional Insured Coverage from Foreign Suppliers
Most businesses, and particularly retailers, require that their suppliers name the retailer as an “additional insured” on the supplier’s general liability policy. This means that if a customer is injured because of the supplier’s product, and the customer sues the retailer, the supplier’s insurance will have to pay to defend the retailer in the lawsuit. Demanding to be added as an “additional insured” is a standard part of contractual risk-transfer in retail, as in most businesses. But two recent rulings demonstrate that “additional insured” coverage may not be worth much – if the supplier’s insurer is outside of the U.S. Companies can try to avoid this problem by revising their contract language.
The first decision, Dick’s Sporting Goods v. PICC, involved a supplier of an inflatable yoga ball to Dick’s, a large sporting-goods retailer. One of the balls burst, injuring a customer, who sued Dick’s. Dick’s demanded that the supplier’s insurer, PICC, defend it, based on Dick’s status as an additional insured. PICC refused. Dick’s sued PICC in Pennsylvania federal court, but PICC moved to dismiss on the basis that the insurance contract required that any disputes be resolved in a court where PICC was located – China. The court agreed. Continue Reading
Lessons in Contracting for Additional Insured Status from New Oregon Case
The dispute in Security National Insurance Company v. Sunset Presbyterian Church, __ Or. App.__ arose out of construction claims involving a church, its general contractor, a subcontractor, and the subcontractor’s liability insurer. In an underlying lawsuit, the church brought claims against the general contractor (Andersen), who brought third-party claims against its subcontractors, including its masonry subcontractor (B&B). In settlement of the claims, Andersen assigned its rights against subcontractors to the church (Sunset).
In subsequent litigation between Sunset and B&B’s insurer (Security National), Security National sought a judgment declaring that it had had no duty to defend Andersen, thus defeating Sunset’s assigned claims. The Oregon Court of Appeals reversed the trial court, and held that Security National did have an obligation to defend. Continue Reading
“Contractors Special Conditions” Endorsement Sets Traps for Policyholders and Defense Counsel
An endorsement that has become common in general contractors’ insurance policies can function as a trap for both the policyholder and defense counsel. The “Contractors Special Conditions” endorsement requires that the policyholder must have written contracts with each subcontractor that it uses on a project, and that those agreements must meet certain requirements. If there is a loss involving those subcontractors, and if contract conditions were not met, the insurer may deny coverage. The problem, of course, is that if the policyholder does not read the policy before the loss, and didn’t get the right contracts in place, there may be no way to “cure” the problem. And defense counsel may be put in a bind as well when they are asked to report to the insurer.
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Miller Nash Graham & Dunn Represents United Policyholders on Pollution Exclusion in Ninth Circuit
We are honored to represent United Policyholders (a non-profit advocacy organization for policyholders) on an issue of great concern to many of our commercial clients, and in particular those in the construction industry: the scope of the so-called “absolute pollution exclusion.” Our amicus brief to the Ninth Circuit for UP on the issue was filed on November 2 and is available here.
As my colleague Frank Langfitt explained here, earlier this year a federal trial judge in Oregon, in the case Colony Insurance v. Victory Construction, interpreted the exclusion very broadly, holding that almost any substance could be a “pollutant.” In that case, a spa and pool contractor was sued because a pool heater allegedly allowed carbon monoxide to build up, causing bodily injury to a home’s occupants. The court held that the insurer had no duty to defend the contractor because carbon monoxide—a naturally occurring substance that was not being handled by the contractor—was a “pollutant.”
Victory Construction chose to appeal to the Ninth Circuit and United Policyholders asked us to represent it as amicus curiae, in order to present the concerns of policyholders generally that the pollution exclusion—as interpreted by insurers—is so broad that it could apply to almost any substance, contrary to the interpretation of ordinary purchasers of insurance and undermining the purposes of general liability coverage. In addition, we addressed the recent Xia decision (which we previously wrote about here), in which the Washington Supreme Court adopted an entirely different approach to this exclusion (and exclusions in general), partially to avoid the tremendously harsh results of the insurance industry’s view of the exclusion.
UP is on the front lines (literally) of the issues of greatest concern to policyholders—including conducting education and training sessions for victims of wildfires and hurricane damage—and it is a privilege to represent such a great organization. This is the third amicus brief that we have done for UP in either the Oregon state courts or the Ninth Circuit.
Insurance Coverage Can Help Businesses Impacted by Wildfires or Hurricanes
Many Northwest businesses are being impacted by the wildfires close to home, and also by the hurricanes that have or will hit Texas, Florida and other Gulf states. Can commercial insurance help to mitigate losses from these natural disasters? In many cases, yes.
“All risk” property-insurance (fire) policies may provide coverage for property damage from wildfires, including damage to facilities, equipment, and sometimes stock and inventory. Wildfires and other natural disasters may also disrupt operations and force temporary closures. In that case, business income (also called “business interruption”) insurance, including civil authority coverage, may cover lost profits and related costs. And, if your company was not directly impacted, but was unable to procure parts or make shipments because of wildfire or hurricane, contingent business interruption coverage may apply.
The devil is often in the details with this kind of coverage. This post will outline some things that business owners and their advisers should look out for in common scenarios.
My company property was damaged by wildfire – what coverage might I have? Continue Reading
Considering Cyber-Insurance After “WannaCry”? Here Are Things to Consider
Many businesses that previously resisted the urging of their insurance broker or (ahem) legal counsel to buy cyber-insurance are now re-thinking that strategy in the wake of the “WannaCry” ransom-ware attack that has been in the news. The damage in the U.S. was apparently minimized by quick-thinking security specialists in the UK, but the attack reportedly caused considerable disruption in Europe – although the total amount of the ransom payments has (so far) been small. The publicity, however, has all businesses asking good questions about where they stand. When you talk to your broker to buy cyber coverage, or review your current insurance, keep a few things in mind. Continue Reading
Important Policyholder Win in the Oregon Court of Appeals: Contractors—This Is Good News
On May 10, 2017, the Oregon Court of Appeals made several significant holdings in the appeal of an insurance policy garnishment proceeding. The court of appeals held that a liability insurer’s exclusion for multi-unit new residential construction was ambiguous and, when construed against the insurer, did not apply to defeat coverage for construction-defect claims in a mixed-use development. The result was especially gratifying because the insurer had refused to defend its subcontractor insured, against which a default judgment had been entered. The court of appeals also held that attorney fees awarded to an indemnitee for defending a construction-defect claim were covered by a liability insurance policy, either as damages or as costs taxed against the insured. Finally, the court of appeals held that a party is entitled to a jury trial on factual issues in an insurance policy garnishment proceeding and that an Oregon statute allowing a bench trial is unconstitutional. Continue Reading
