SDV Insights

New York law has historically allowed insurers to recoup defense costs paid on behalf of an insured if there is ultimately no coverage for the underlying action, provided that the insurer reserved its rights to seek reimbursement.

In New Jersey Transit Corp. v. Certain Underwriters at Lloyd's London, New Jersey's highest court upheld an appellate decision finding that New Jersey Transit Corporation ("NJT") was entitled to full coverage under its property insurance policy for damages caused by Superstorm Sandy.

In the case of NextSun Energy Littleton, LLC v. Acadia Ins. Co., the United States District Court of Massachusetts held that once direct physical damage from a covered peril causes a covered business interruption loss, any increase in the duration of such business interruption, due to the enforcement of an ordinance or law, extends the coverage period provided for lost income.

Subcontractors sign contracts every day which require them to provide insurance for liabilities arising out of the performance of their work, but in New York in particular there is often a failure of risk transfer due to labor law or "Action Over" exclusions.

Insurers have a duty to handle claims in good faith. Depending on the jurisdiction, an insurer's failure to settle, unreasonable denial of a claim, or improper claims handling can expose the insurer to damages above the policy limits. Automobile accidents were a driving force behind bad faith litigation last year, with four significant appellate-level decisions handed down nationwide.

COVID-19 business interruption coverage litigation may have stolen the show in 2020, but those cases should not eclipse other important insurance coverage cases decided throughout this past year.

Jeremiah Welch and Cheryl Kozdrey's recent article, "Protecting Yourself from Downstream Risks," was recently featured in the May/June 2020 edition of FMJ Magazine, the official magazine for International Facility Management Association (IFMA). This article explores effective risk management processes, including contractual risk transfer and insurance protections from downstream parties, and simple tools Facilities Managers can utilize to mitigate risk.

In Maritz Holdings, Inc. v. Certain Underwriters at Lloyd's London, the policyholder, Maritz, sought insurance coverage for cyber-security breaches that resulted in the theft of electronically stored gift card information. Lloyd's of London provided Maritz with breach-response insurance policies from 2015 through 2017, and Maritz sought coverage from Lloyd's for fees and costs incurred in responding to the security breaches.

There has been a recent surge in lawsuits filed by employees and customers of restaurants, hotels, and other major retailers, alleging violations of the Illinois Biometric Information Privacy Act ("BIPA"). BIPA generally prohibits the collection, use, and disclosure of biometric data without an individual's prior written consent.

The State of Connecticut recently joined a growing list of state governments attempting to hold ExxonMobil ("Exxon") accountable for causing climate change, bringing the total number of such states to 21. Connecticut alleges that the oil & gas giant lied to the public for decades about climate science and its own contributions of harmful toxins to the environment.