Hunton Insurance Recovery Blog

Companies face significant exposure from privacy related claims. An increasing number of these claims result from efforts at the state level to regulate use of personal data. One key focus is Illinois’ Biometric Information Privacy Act (“BIPA”), but as lawmakers in other states continue to introduce legislation aimed at regulating the use of biometric data, more court decisions may muddy the waters regarding what conduct may be covered under a general liability policy.

Exercising its newly expanded jurisdiction that now permits Virginia’s intermediate appellate courts to hear insurance coverage disputes, the Court of Appeals recently reversed a lower court decision that allowed a two-year “Suits Against Us” provision to serve as a basis for an insurer’s refusal to reimburse repair and replacement costs incurred more than two years after the date of loss. Bowman II v. State Farm Fire and Casualty Co., Record No. 1256-22-3 (Nov. 21, 2023). CAV (unpublished opinion).

Earlier this month, the US Tax Court agreed with an IRS determination against favorable tax treatment of premium and dividend payments using a foreign captive. In the decision, the court ruled that a financial services company could not deduct millions of business expenses for purported insurance coverage through an affiliate captive company or take advantage of preferential rates for dividends paid by the captive to the company’s shareholders. While properly organized and administered captives can take advantage of numerous features not available through the traditional insurance market, the ruling highlights challenges companies may face if a captive is not implemented correctly.

A Washington state court in The Board of Regents of the University of Washington v. Employers Insurance Company of Wausau, No. 22-2-15472-1, recently held that the University of Washington has made a plausible claim for coverage for losses sustained as the result of the outbreak of the COVID-19 pandemic under Washington’s “loss of functionality” test.