Hunton Insurance Recovery Blog

On September 26, 2023, KPMG published independent research showing that three-quarters of global businesses feel they are not ready for new ESG reporting regulations. KPMG’s findings are the latest reminder to businesses—and their directors and officers and other insureds—about the important role that Directors & Officers (D&O) insurance can play as businesses and organizations strive for ESG compliance and work to mitigate ESG-related risks.

As previewed in part 1 of our AI Policyholder’s Guide, we now discuss how businesses can assess their AI risk to ensure that they are properly positioned to secure insurance coverage should those risks come to fruition. Because no two businesses will have the same AI risk profile, businesses should consider undertaking organization-wide AI risk audits to evaluate their unique AI risk profile.

Understanding the nature of AI-focused legal risk is not only important for business planning, but essential to crafting a comprehensive AI-specific risk management plan. Indeed, because insurance is often underwritten relative to specific risks, knowing the risks to be insured is a prerequisite to procuring the right type of coverage with terms most suitable to a given risk profile.

Hunton Andrews Kurth LLP is pleased to announce the release of the inaugural edition of our AI and Emerging Technologies Newsletter. The newsletter focuses on multidisciplinary, current topics affecting businesses in the AI and emerging technology industry. Inside our first edition, we cover a bit of what you need to know about AI in the context of contract terms and conditions, US privacy laws, insurance, employer use monitoring and workforce management, and copyright law, as well as the rise in crypto class actions. Our first edition also includes an article written by insurance ...

Courts scrutinize a complaint’s factual allegations to decide whether the allegations trigger a duty to defend. ^[1] If the facts unambiguously exclude coverage, there is no duty to defend. ^[2] But what if the factual allegations fall within a policy exclusion, but the allegations are untrue or questionable? What if the true facts would mean the exclusion doesn’t apply? In that case, many courts have found that the insurer should base its decision on the policyholder’s version of the “true facts.” ^[3] An insurer can’t rely on the complaint’s allegations to deny coverage when the facts that the insurer knows or can ascertain show that the claim is covered. ^[4]

The United States Supreme Court recently accepted review of In re Kaiser Gypsum Co., Inc., 60 F.4th 73 (4th Cir. 2023), a Fourth Circuit decision concerning “whether an insurer with financial responsibility for a bankruptcy claim is a ‘party in interest’ that may object to a Chapter 11 plan of reorganization.” This issue, while one of first impression for the SCOTUS, has been litigated several times in the appellate courts, leading to a circuit split over the interplay between Article III and 11 U.S.C. Section 1109(b). 

Most modern liability insurance policies have provisions addressing whether different claims are “related” (or “interrelated”) for assessing potential coverage. Because the answer of whether two claims are “related” depends heavily on the facts giving rise to the underlying claims, the policy language, and applicable law, questions about relatedness can lead to significant insurance coverage disputes.