Complimentary Webcast: Business Interruption Insurance Coverage

As we continue to provide our audience with updated information on developments in business interruption insurance coverage, we are inviting you to join this free virtual program which features Northwest Policyholder blog creator and editor, Seth Row, as a panelist.

Session II: Business Interruption Insurance Coverage
Date: Tuesday, May 12, 2020
Time: 11:00 AM Pacific/ 2:00 PM Eastern
Duration: 1 hour
More info: Click here

You are invited to join this webcast as we review existing policy clauses and best practices to submit a claim, how to document and support your claim, as well as current regulations and anticipated assistance from federal and state government. Northwest Policyholder blog creator and editor, Seth Row, is a panelist for this virtual program. 

The ELA is proud to present a complimentary webinar series on topics and challenges that have come to the forefront for employers due to the COVID-19 pandemic. The Straight Talk Series features legal specialists from key practice areas in candid, direct conversations addressing your most important questions. The format is driven by interactive discussions, audience polls, and Q&A. Participants can submit questions in advance or during the live program.

Use link below to register to join this webcast.

Registration LinkClick here

Protecting Your Business’s Data, and Cyber Insurance, Is More Important Than Ever

With a majority of businesses being run from home, using less secure networks, and disrupting normal security protocols, hackers are seeking to capitalize. The FCC and the FTC have seen an uptick in scams during the pandemic in the form of fake charities requesting donations, fake sources offering financial relief, fake information regarding COVID-19 vaccines, and phishing e‑mails. Ransomware attacks are also increasing as hackers prowl the Internet for vulnerable systems, while VPNs are in high demand.

Secure Your Information

Maintain security while working from home. Businesses should be taking reasonable measures to ensure the safety of personal information during these challenging times. Examples include:

  • Encrypting video chat platforms and securing meetings with access codes for attendees. Most communication platforms encrypt chat programs by default, but this is not the case with video programs.
  • Reminding employees to be aware of what’s in sight during video calls. Employees should be sure that confidential information is not visible to those with whom they are conferencing.
  • Reminding employees that they should continue to use the same verification processes that they would use in the office to confirm the accuracy of payment requests. Remember: failure to use normal protocols may void insurance coverage or other risk-management protections.

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Five Things To Do Now to Protect Your Business Interruption Insurance Claim

Businesses are hurting due to COVID-19 slow-downs and closures. Here is my top-five list of things to do to protect your right to collect on your business interruption (a/k/a business income) insurance:

5. Don’t Believe the Propaganda. The insurance industry is trying to stop business owners from making claims by repeating the mantra “no insurance available for COVID-19 claims.” That’s just not true. While some businesses have “virus” or “communicable disease” exclusions, we are finding that many of our clients’ policies don’t have that exclusion. (One analysis is that 80% of policies don’t.) And even with that exclusion, hope is not necessarily lost. There are many, many different kinds of business income policies out there—the specific wording of your policy (even very minor differences) will matter. When an insurer tells you that virus contamination isn’t “property damage” remember that most policies are written on an “all-risk” basis, meaning that it is up to the insurer to clearly exclude something as a “cause of loss.” Courts in Oregon, Washington, and elsewhere have found that contamination from smoke, chemical odors, and e coli counts as “physical loss or damage.” Also, most policies contain “civil authority” coverage that overrides any requirement that your property be damaged—meaning that if you lose business due to a “stay-home” or “shelter-in-place” government order, like the one just announced in Oregon, or the Washington restaurant order, you may have coverage. Continue Reading

Insurance Recovery for COVID-19 Losses

The economic fallout from COVID-19 has been swift and severe. Moratoriums, quarantines, and bans will continue to upend daily life and with this impose severe economic consequences on regional, national, and international commerce. While the federal government struggles to prop up the overall economy, many businesses are looking to what, if any, specific relief might be had. This search inevitably leads to insurance. Unfortunately, the question of whether commercial lines insurance might cover COVID-19 related losses results in a lawyerly answer: it depends. More specifically it depends on the (1) the type of insurance purchased, (2) the wording of individual policies, and (3) the particular circumstances surrounding each business’s loss. Continue Reading

Northwest Data Breach Laws Are Changing—Is Your Cyber Insurance Keeping Up?

Legal requirements for managing consumer data and handling data breaches are changing, so now is a good time to check your cyber insurance to make sure that it is keeping up.

New Oregon Law + Proposed Washington Law + California CCPA = Increasing Business Risk. Oregon’s amended data breach notification law, effective January 1, 2020, creates breach notification requirements applicable to third-party vendors—the first state law to do so. The Oregon Consumer Information Protection Act (CIPA) now requires that vendors notify the Oregon Attorney General of a substantial breach of security not later than 45 days after discovering the breach. The Bill also requires vendors to notify the “covered entity” (the owner of the data) not later than 10 days after discovering that a breach has occurred (the owner then has 45 days to report the breach to the Attorney General). Key other amendments to the law include the following: Continue Reading

Oregon Court: Common Commercial Property Insurance Suit-Limitation Clause is Ambiguous

Oregon federal Magistrate Judge Stacie Beckerman gave policyholders an early Christmas present on December 20, 2019, holding that the most commonly-used suit limitation clause in commercial property insurance is ambiguous, and that therefore the policyholder had two years from the discovery of hidden water damage to file suit against the insurer. This ruling provides additional clarity to the interpretation of a widely-used coverage form, in the context of one of the most common property-loss scenarios in the Pacific Northwest: hidden decay over many years due to water infiltration.

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Washington Supreme Court: Consumer Protection Act Applies Broadly, Federal Courts Wrong

In Peoples v. USAA, decided on November 27, 2019, the Washington Supreme Court held that insurance companies can be liable under Washington’s Consumer Protection Act (RCW Ch. 19.86) if they violate Washington claims-handling regulations and wrongfully deny benefits, even if the underlying claim is for personal injuries. In this case the plaintiffs alleged that USAA’s computer algorithms wrongfully denied coverage for medical provider costs, which are generally covered under auto policies as “personal injury protection” or “PIP,” without any individualized assessment of the costs. Washington’s CPA prohibits “unfair or deceptive practices in trade or commerce” and allows anyone who is “injured in [their] business or property” to sue for damages (including treble damages) and injunctive relief, plus attorney fees. The insurer argued that even if their denials were wrong, they did not injure these plaintiffs’ “business or property,” as the underlying claims were for personal injuries. Announcing a new rule (and disagreeing with several previous federal-court decisions), the Washington Supreme Court held that “the deprivation of contracted-for insurance benefits is an injury to ‘business or property’ regardless of the type of benefits secured by the policy.” Continue Reading

Insurance and Cannabis – Requirements, Exclusions, Positive News

Cannabis businesses don’t have many options when it comes to insurance, because major insurance players are staying out of the market until cannabis is reclassified under federal law. However, cannabis licensees are required to carry insurance by state law (discussed below), and often by landlords, lenders, customers or suppliers. Recent vaping-related bodily injuries have also highlighted both the need for products-liability coverage and the fact that most cannabis-liability policies contain significant exclusions – and below we provide a few ways to deal with these exclusions.  Finally, we discuss some hope on the horizon in the form of increasing standardization of forms and federal crop insurance.

State Laws. These state-law requirements are not trivial: a licensee that fails to carry the proper coverage could lose its license. Continue Reading

Understanding Insurance Terms in Construction Contracts

Miller Nash attorneys Seth Row and Shanelle Honda were published in the Fall 2019 issue of the NAMC-OR Newsletter. The link to the full story is available below.

Construction contracts at all tiers usually include terms requiring certain types of insurance, and often contain related provisions about indemnity. This “boilerplate” can be important if a job goes south, so here’s a short explanation of some of the key terms and how they relate to one another.

Click here to read the full article (page 5).

Policyholders Must Be “Made Whole” Before Insurers Recover Payments From Third Parties

The Washington Supreme Court recently issued a decision strongly reiterating the “made whole” doctrine under Washington law, which provides that an insurer cannot exercise its right of reimbursement from a third party who injured its insured, until the insured itself has been made whole by recovery of damages or losses it has incurred. In Daniels v. State Farm Mut. Auto Ins. Co., State Farm paid for damage to its insured’s vehicle in full, less a $500 deductible. State Farm then recovered 70% of the damage from GEICO, which had insured one of the parties whose negligence had caused the loss. (Another party was determined to be 30% at fault; all parties stipulated that Daniels—State Farm’s insured—had no fault). State Farm then reimbursed its insured 70% of the $500 deductible. Continue Reading