Hunton Insurance Recovery Blog

A New York federal court denied AIG Specialty Insurance Company’s (“AIG”) motion to dismiss breach of contract and bad faith claims in a lawsuit filed by SS&C Technology Holdings, Inc. (“SS&C”). SS&C alleges that AIG breached its contract by failing to cover losses stemming from a cyber incident in which hackers duped the company out of millions of dollars.

The members of Hunton’s Insurance Recovery group present regularly on today’s hot topic insurance coverage issues. Upcoming insurance presentations for November 2019 include:

• Walter J. Andrews will be presenting on Experts and Their Role in Bad Faith Litigation at the 2019 Insurance Law Symposium at Nova Southeastern University in Davie, Florida on November 1, 2019.
• John C. Eichman will be presenting on Pursuing the Insured’s Claim at the ABA’s 2019 Fidelity & Surety Law Fall Conference in Boston, Massachusetts on November 7, 2019.
• Syed S. Ahmad will be presenting with ...

In a recent Global Data Review article, Hunton Andrews Kurth insurance practice head Walter Andrews commented on the FBI’s guidelines on ransomware payments and the insurance industry’s aggressive marketing of ransomware policies, noting that policyholders now have a resource that can help cover the cost of such an attack. The full Global Data Review article can be found here.

Recap of Hunton Insurance Recovery Group presentations in August and September 2019 focusing on key risk management techniques and strategies for maximizing recoveries under corporate insurance policies and enforcing indemnity rights under technology, sales, services, outsourcing, and other commercial contracts:

• John Eichman and Sergio F. Oehninger presented a seminar on Electronic Crime – Insurance Coverage for Cyber Attacks and Computer Fraud, Independent Community Bankers of America Webinar Series, September 24, 2019.
• Sergio F. Oehninger presented seminars on ...

On August 6, 2019, Hunton Andrews Kurth insurance lawyers Walter J. Andrews and Daniel Hentschel discussed the effect of eroding insurance policies in an article appearing in Florida’s Daily Business Review. The full article is available here. In the article, the authors discuss the potential risks associated with the use of eroding insurance policies and the obligations that the use of such policies imposes upon insurance companies based on their control over the policyholder’s liability defense ...

In the August 2019 publication of Contract Management, Hunton insurance recovery lawyers Walter Andrews, Lorelie Masters, Michael Levine, and Latosha Ellis discuss how a robust insurance program can help government prime contractors mitigate potential financial risks associated with downstream data breaches or releases. In the article, the authors explain government prime contractors’ cybersecurity obligations under DFARS and other federal regulations. A copy of the article is here.

In the first part of a 3-part series, the Hunton insurance team discusses how policyholders can plan for this year’s hurricane season. Part 2 will address how to prepare a claim after a loss in order to maximize the potential recovery, including by taking photographs of any damage and tracking curfews that affect your operations.  Part 3 will discuss how to prevent denials of pending claims based on suit limitations periods.  The team’s goal is to provide a comprehensive outline that will guide policyholders before and after a loss.

The Hunton Andrews Kurth insurance recovery team secured a victory for firm client, The Children’s Place (“TCP”), obtaining a ruling from a New Jersey federal court in The Children’s Place, Inc. v. Great Am. Ins. Co., 2019 WL 1857118 (D.N.J. Apr. 25, 2019), in which the court allowed TCP to seek insurance coverage for a “social engineering scheme” that defrauded the company of $967,714.29.

In January we wrote about Rosen Millennium Inc.’s (“Millennium”) appeal to the Eleventh Circuit, whereby Millennium took the position that a Florida federal court ignored well established Florida insurance law when it ruled that St. Paul Fire & Marine Insurance Co. had no duty to defend it against a multimillion dollar claim arising out of a 2016 cybersecurity breach.

Rosen Millennium Inc. (“Millennium”), the cyber security and IT support subsidiary of Rosen Hotels & Resorts, Inc., has appealed to the Eleventh Circuit contending that a Florida federal court ignored Florida insurance law when it ruled that Travelers Insurance Company has no duty to defend it against a multimillion dollar claim arising out of a cybersecurity breach.

As the new year gets under way, cases that will shape the insurance landscape in 2019 continue to proceed.  Among them are First Acceptance Ins. Co. v. Hughes, in which the Georgia Supreme Court will address the prerequisites for a policyholder to sue its insurance carrier for bad faith based on the insurer’s failure to settle the underlying dispute for an amount within the available policy limits.  Hunton Andrews Kurth’s insurance practice head, Walter Andrews, was asked by Insurance Law360 to comment on the significance of that case.  As Andrews explained, the insurer’s position is inconsistent with Georgia law.  "Georgia law does not require some particular form of settlement offer — or even an offer at all — to create an insurer's duty to settle claims against their insureds." Rather, as Andrews explained, “that duty arises when the insurer knows or reasonably should know that not settling will create an 'unreasonable risk' of the insured suffering a judgment in excess of his or her policy limits, regardless of whether a third-party claimant has first presented a settlement offer. Most often, that should be a jury question and not something that is susceptible to summary judgment."

In a win for policyholders, a California appellate court has held that the loss of use of property resulting from alleged negligence constitutes property damage under a liability insurance policy.

The head of Hunton Andrews Kurth’s insurance practice, Walter Andrews, was interviewed earlier this week by ABC 7 (WJLA) concerning the need for cyber insurance and the benefits that it can provide to government contractors and other businesses that are impacted by a cyber event.  Andrews explains the diverse spectrum of benefits that are available through cyber insurance products, but cautions that a serious lack of uniformity exists among today’s cyber insurance products, making it crucial that policyholders carefully analyze their cyber insurance to ensure it provides the scope and amount of insurance they desire.

Hunton Andrews Kurth insurance practice head, Walter Andrews, recently commented to the Global Data Review regarding the infirmities underlying an Orlando, Florida federal district court’s ruling that an insurer does not have to defend its insured for damage caused by a third-party data breach.

In a recent article appearing in Florida’s Daily Business Review (available here), Hunton Insurance Recovery Practice team head, Walter Andrews, explains why phishing and whaling scams should be covered by insurance.  In the article, Andrews notes that recent appellate decisions support policyholders’ reasonable expectations of coverage and reject insurers’ contentions that social engineering losses do not result directly from the use of computers.  Andrews goes on to explain that should a company find itself a victim of a phishing or whaling attack, it should carefully ...

In a recent post, we discussed the Sixth Circuit’s holding in American Tooling Center, Inc. v. Travelers Casualty and Surety Co. of America, No. 17-2014, 2018 WL 3404708 (6th Cir. July 13, 2018), where the Sixth Circuit reversed the district court’s summary judgment for the insurer, finding coverage under its policy for a fraudulent scheme that resulted in a $834,000.00 loss. The insurer, Travelers, has now asked the Court to reconsider its decision.

In a July 9, 2018 article appearing in Insurance Law360, Hunton Andrews Kurth insurance recovery practice head, Walter J. Andrews, explains why the Second Circuit’s decision in Medidata Solutions Inc. v. Federal Insurance Co., No. 17-2492 (2^nd Cir. July 6, 2018), affirming coverage for a $4.8 million loss caused by a “phishing” e-mail attack, is a common sense application of the plain language of Medidata’s computer fraud coverage provision.  As Andrews explained, “[c]learly, hijacking — or spoofing — email addresses constitutes an attack on a company's computer system for which a reasonable policyholder should expect coverage. A computer is a computer is a computer. Everyone knows that — except for insurance companies.”

The construction industry is no stranger to insuring its projects against the risks of physical and natural disasters. Policies purchased to cover these risks, however, often are not broad enough to reach cyber threats, which can be just as damaging and costly as a physical disaster. During the past decade, hacks have targeted the data held by several high profile companies, including Target Corp., Sony Corp., Equifax Inc. and Yahoo Inc.  So far, the construction industry has not yet been at the center of one of these attacks.  Still, builders are no less susceptible to these risks than any other industry, especially given that these companies often possess sensitive data related to buildings and projects.

The Daily Business Review, an ALM publication covering the south Florida business community, has named Hunton’s Insurance practice head, Walter Andrews, as a recipient of its 2018 Professional Excellence Award.   The award recognizes exemplary work by attorneys in the legal profession and community.  The award is a precursor to an event hosted by the Daily Business Review on May 30 at the Rusty Pelican in Miami, where one of this year’s three Professional Excellence Award winners will be named Attorney of the Year.  Congratulations, and good luck Walter!

Hunton & Williams Insurance Recovery leader, Walter Andrews, discusses the top insurance issues facing employers in Part 2, of a two-part video series.  Part 1 of the series is available here.

With the wave of wage and hour litigation showing no signs of receding, employers often have questions about whether they should consider insurance coverage for these claims. In the first of this two-part interview, Hunton & Williams partners Emily Burkhardt Vicente and Walter Andrews discuss what employers need to understand about insurance coverage for state and federal wage and hour claims.  View the 5-minute video here.

As we have previously written, students accused of hazing can obtain coverage under a parent’s homeowners’ policy. See our prior post. A recent New York decision provides the latest example.

A Florida state court has awarded over $5.5 million to singer Gloria Estefan’s hotel company in a lawsuit against Landmark Insurance Company because the insurer wrongly refused to cover building code-related upgrade costs after two 2004 hurricanes, Hurricane Frances and Hurricane Jeanne, severely damaged the hotel property. The case is Pin-Pon Corp. v. Landmark American Ins. Co., No. 312009CA0122-44 (Fla. 19th Cir. Ct. Dec. 28, 2017).

On Wednesday, my colleagues Walter Andrews and Katie Miller published a timely article in Florida’s Daily Business Review discussing the availability of insurance coverage for continuing losses suffered by businesses directly and indirectly affected by Hurricane Irma.  The article, titled After Irma: Is Your Business Entitled to Insurance Coverage for Additional Lost Profits?, has equal application to those affected by Hurricanes Maria and Harvey.  As the article explains, continuing business income losses may be covered under common property insurance policy provisions.  Where they are not, the article provides insightful advice for policyholders as they approach policy renewal so they can fill gaps that may exist in their current coverages.  A copy of the article can be found here.

In an article published in Law360, Hunton & Williams LLP partners Walter Andrews, Malcolm Weiss, and Paul Moura discuss two recent decisions in Tree Top Inc. v. Starr Indem. & Liab. Co., No. 1:15-CV-03155-SMJ, 2017 WL 5664718 (E.D. Wash. Nov. 21, 2017).  There, the Eastern District of Washington rejected an insurer's attempt to escape insurance coverage for a Proposition 65 lawsuit filed against juice-maker Tree Top Inc.

In an article appearing in Law360, Hunton & Williams LLP’s insurance coverage practice group head, Walter Andrews, weighs in on the Florida Supreme Court’s recent opinion in Altman Contractors, Inc. v. Crum and Forster Specialty Insurance Co. As I discussed in my previous blog post on the Altman Contractors case, available here, the Florida Supreme Court held that a Chapter 558 notice of construction defect constitutes a “alternative dispute resolution proceeding” under the definition of “suit” in a commercial general liability (“CGL”) policy so as to possibly trigger the insurer’s duty to defend. There, the policy defined “suit” as including “[a]ny other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.”

A recent article published by Securityroundtable.org highlights the vulnerabilities businesses face in a world of e-commerce and interconnectivity, and how proper planning through a tailored cybersecurity program that includes - among other components - appropriate insurance coverage for cyber risks can help prevent a successful attack and mitigate the financial impact should one occur. Whether the issue is prevention or risk mitigation, cybersecurity should be at the top of the corporate agenda. As discussed in the Securityroundable.org article, Lisa Sotto, chair of the ...

Last week Bloomberg Law launched an online “cyber insurance suite” authored by Hunton attorneys, Walter J. Andrews, Sergio F. Oehninger, and Patrick M. McDermott. The online suite, available here and to Bloomberg subscribers, covers all aspects of cyber insurance, including identifying the major cyber risks and liabilities, applying for and obtaining cyber insurance coverage, and submitting claims under cyber coverages. It also contains an overview of case law evaluating coverage for cyber liabilities under traditional insurance policies and under cyber specific ...

Hunton & Williams' Insurance Recovery Team Head, Walter Andrews, was spotlighted in an article published in the Houston Chronicle last week regarding insurance for losses from Hurricanes Harvey and Irma. While the storms were devastating in their own unique ways – Harvey with extensive flooding; Irma with extreme wind and storm surge – both have substantially impacted local and national businesses.  As Andrews explains, "if you don't have any customers, or if they can't access your facilities, you don't have business.  Many businesses are facing vast amounts of lost earnings ...

In an article published September 12, 2017 in South Florida’s Daily Business Review, Hunton & Williams insurance lawyers Walter Andrews and Andrea DeField explained why it is critical that policyholders act fast to maximize insurance recovery for their hurricane-related losses.  They also provided a checklist to guide policyholders through the claim process.  As Andrews and DeField explain, in addition to providing prompt notice to all potential insurers, policyholders should collect all loss-related receipts and document the damage with photographs.  Good organization of ...

The National Hurricane Center calls Hurricane Irma a “potentially catastrophic Category 5 Hurricane.” As the state of Florida begins evacuation procedures, Miami-based Hunton Insurance lawyers Walter Andrews and Andrea DeField provide commentary and analysis to the Daily Business Review on steps that South Florida insureds should take now in preparation for the impending storm. These include ensuring coverage for both windstorm and flood damage, as well as considering these often standard coverages in light of anticipated claims post-storm:

Hunton & Williams insurance practice head Walter Andrews commented in a July 25, 2017, Law360 article concerning a New York federal court’s recent decision in Medidata Solutions, Inc. v. Federal Ins. Co., where the court found coverage for a $4.8 million “social engineering” loss that occurred after Medidata received fraudulent emails that caused accounting personnel to wire funds to a fake bank account in China. The decision, which was the subject of a July 24, 2017, Hunton blog post, focused on two main issues: (1) whether the fraudulent emails amounted to an infiltration of ...

My partner, Walter Andrews, recently commented in a Law360 article concerning the top insurance cases to watch in 2017.  The Law360 article, titled Insurance Cases to Watch in the 2^nd Half of 2017, features Andrews commenting on the impact of Global Reinsurance Corp. of America v. Century Indemnity Co., case number CTQ-2016-00005, in the Court of Appeals of the State of New York, where he points out how a win for Global Re could result in a huge windfall for the reinsurer by saving on its defense costs, since reinsurers typically must pay both indemnity and defense costs.  Andrews also ...

The RIMS 2017 Annual Conference & Exhibition is just around the corner.  Visit members of Hunton & Williams LLP’s Insurance Coverage Team at Booth #2421 to learn more about our legal services.

Policyholders are often surprised to hear that their policies cover more than the run-of-the-mill claim. For example, a general liability policy may cover a cyber-related loss. See our prior post. As a more recent example, a federal court in South Carolina found that a parent’s homeowners’ policy obligated an insurer to defend a college student against hazing allegations. Allstate Ins. Co. v. Ingraham, No. 7:15-cv-3212 (D.S.C. Mar. 14, 2017).

Earlier today, Hunton & Williams LLP insurance coverage lawyer Andrea DeFIeld was named “Rookie of the Year” by the Greater Miami Chamber of Commerce in their annual HYPE Awards ceremony.  The awards recognize Miami-Dade County’s brightest young professionals who have demonstrated outstanding achievements in their professions.  Andi certainly has done that, and much more, said Hunton’s Insurance Coverage practice leader, Walter Andrews, who attended the awards ceremony with Andi.  Andrews added, “Andi is an integral part of our practice and a leader among young ...

On February 3, 2017, members of Hunton & Williams’ insurance group, led by Insurance Practice Head Walter Andrews, and firm associate Anna Lazarus, achieved a significant victory in the Eleventh Circuit U.S. Court of Appeals, in Hillsborough County v. Star Insurance Co.  The 11^th Circuit’s published opinion, available here, addressed an issue of first impression under Florida law involving the impact of Florida’s statutory limitations on liability and an excess liability policy’s self-insured retention.  The decision provides substantial guidance under Florida law ...

Hunton & Williams Insurance practice head, Walter Andrews, provides a brief, 5-minute overview, of why members of the real estate industry should be thinking about and obtaining appropriate cyber insurance protection for their real estate operations.  Mr. Andrews explains why cyber insurance is different from other insurance products and requires a careful examination of the particular assets and exposures that are to be protected.

Law360 sought the perspective of Walter Andrews, head of Hunton & Williams LLP’s insurance coverage practice, when collecting its list of cases to watch in 2017. Andrews identified a case pending with the Texas Supreme Court – USAA Texas Lloyds Co. v. Menchaca, which we reported on in October.  As Andrews explained to Law360, “If the Texas Supreme Court comes down in the policyholder’s favor here, it would provide a substantial weapon for policyholders’ arsenals, as far as what they have to [use against] insurers that don’t reasonably investigate claims. That would ...

Many communities are breathing a sigh of relief as winter weather kills off a good portion of the Zika-carrying mosquito population – at least in some parts of the US, and at least until next spring.  But dwindling mosquito populations have not diminished business concerns about Zika-related losses.  Since the health effects of Zika may not be apparent until months after birth, businesses in mosquito-popular locales should assess their option to cover the losses caused by Zika, or the mere threat of Zika.  Read my colleagues Walter Andrews, Michael Levine, Andrea DeField’s ...

Hunton & Williams LLP’s insurance coverage counseling and litigation team has relocated its core group of lawyers to Washington from McLean, Va. Hunton’s Washington office is home to more than 150 lawyers and is the firm’s second-largest office.

“The move is good for us and great for our clients,” says practice head Walter J. Andrews. “Being in the nation’s capital better provides us with national exposure and a central location to assist our clients nationally and internationally.”

Hunton’s insurance coverage counseling and litigation lawyers have kept pace ...

On October 7, 2016, an article by Hunton & Williams’ insurance lawyers Walter J. Andrews, Michael S. Levine and Andrea DeField, discussing insurance recovery options for those affected by Hurricane Matthew, was published in the Daily Business Review.  The full article is available here.  In the article, the authors discuss the types of coverage that may be available to affected policyholders and some of the pitfalls they should look out for as they mitigate their losses and navigate the claim process.  The authors can be contacted directly for follow up at wandrews@hunton.com ...

The United Kingdom’s recent vote to sever ties with the European Union will have global economic consequences. The ramifications of an EU economic retraction resulting from financial uncertainty will undoubtedly reach Latin America.  The cross-border insurance industry will likely not be spared.  Multinationals with local operations must be proactive to get ahead of the storm – now is the time to review the unique aspects of their business and their target markets to pinpoint their ideal risk management structure, and to ensure that their insurance regimes sufficiently anticipate the shifting risks in this dynamic bloc.

Hunton & Williams' insurance practice head, Walter Andrews, was quoted in a Law360 article yesterday regarding the confusion that is likely to result from a federal bankruptcy judge's decision in Rapid-American Corp. v. Travelers Casualty and Surety Co., where the court concluded that a majority of excess insurers owe no coverage to Rapid-American Corp. for underlying asbestos claims until the company exhausts the limits of its underlying primary and excess coverage through actual payment, not just accrued liability. According the Andrews, "the public policy clearly ...

Yesterday, a federal court found that FIFA’s D&O insurer is obligated to reimburse and advance legal costs for the defense of Eduardo Li, one of the defendants in the FIFA racketeering and fraud prosecution. Li v. Certain Underwriters at Lloyd’s, London, No. 15-cv-6099 (E.D.N.Y. Apr. 27, 2016). Li was the president of the Costa Rican soccer federation, an executive member of the soccer association for North and Central America (CONCACAF), and a member of FIFA standing committees. Along with other FIFA executives, he was indicted this past summer and charged with racketeering conspiracy, wire fraud conspiracy, and money laundering conspiracy.

An article by Hunton lawyers Walter Andrews and Mike Levine, titled Insurance Planning for 2016: Top Ten Real Estate Liability Concerns, was recently published in the Spring 2016 issue of The Real Estate Finance Journal. The article addresses ten recurring liability concerns facing real estate professionals, investors, developers, lenders, owners and managers, and the associated insurance issues. The article addresses ways commercial insurance can be used to mitigate potential liability for those involved in complex real estate transactions. Andrews and Levine, along with ...

Globalization has inspired the development of cross-border business activities, as companies across several industries seek new markets for their goods and services.  The dynamic rewards have been accompanied by a corresponding increase in novel risks, and those who rely on traditional risk assessment mechanisms have often been left unnecessarily exposed.

Judges – Not Juries – Award Attorney’s Fees In Virginia Bad Faith Cases, FC&S Legal
November 10, 2015

In REVI, LLC v. Chicago Title Insurance Company, the Virginia Supreme Court held that a trial judge, rather than a jury, should determine whether an insured is entitled to attorney’s fees as a result of the insurer’s bad faith.

Tapping Corporate Predecessors’ Liability Insurance Policies Just Became Easier Following Fluor Ruling, Westlaw Journal Insurance Coverage, volume 26, issue 2
October 15, 2015

In a landmark decision, the California Supreme Court on August 20, 2015, held that enforcing an anti-assignment clause in an insurance policy as a bar to coverage – where the assignment occurred post-loss – was contrary to California Insurance Code Section 520, which provides that consent-to-assignment clauses are invalid if invoked after a loss has happened.  See Fluor Corp. v. Superior Court ...