In a recent win for policyholders, the Supreme Court of Colorado handed down a pair of decisions that extended the notice-prejudice rule to first-party property policies. Colorado law now requires an insurer to demonstrate that it was prejudiced by the insured’s late notice of a claim before it can deny coverage based on untimeliness in both property and liability policies.
Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against their alleged attackers which otherwise would have been time barred. On September 19, 2022, California Governor Gavin Newsom signed an equivalent law, the Sexual Abuse and Cover Up Accountability Act (AB-2777), which similarly suspends the statute of limitations for civil claims of sexual assault and other vicarious offenses arising out of that conduct starting January 1, 2023. These laws will likely generate a surge of litigation in California and New York, undoubtedly impacting many businesses operating there. Many, if not most, of those companies will look to insurers to furnish legal defenses and to financially support settlements or damage awards based on past policies.
As the preferred place of incorporation for most U.S. companies, Delaware has long been a leader in the development of statutory and common law on corporate governance. In keeping with this role, the Delaware legislature recently amended its corporate code to permit enhanced legal exculpation of officers of Delaware corporations. Let’s look at this amendment and its implications for D&O insurance.
The doctrine of contra proferentem—in which a contractual ambiguity is construed against the drafter—has been a bedrock of New York insurance law since at least the 1880s. In “Contra Proferentem Will Remain Alive and Well in NY,” written for Law360, colleagues Benjamin Tievsky, Scott Greenspan and Stephanie Coughlan explore the history of this doctrine and why policyholders should take heart that the necessary protections of contra proferentem are alive and well under New York law.
Amazon. Bank of America. Citigroup. Dick’s Sporting Goods. JP Morgan. Kroger. Meta. Microsoft. Procter & Gamble. Target. Walt Disney Company. These are just a few of what is a growing list of companies that have offered to cover costs for employees who may now need to travel out of state to receive abortion care in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. But companies that are stepping up to further protect their employees’ reproductive rights are choosing to do so in the face of potential public backlash and uncertain legal risks.
If you were to look for a quick answer regarding whether a commercial general liability (CGL) policy covers damage resulting from faulty workmanship under Pennsylvania law, you’d likely come out believing the answer is “no.” Many article headlines, purported state surveys, and news reports come to that conclusion based on the general finding that faulty workmanship causing damages only to the work itself is not an “occurrence” under the standard CGL insurance policy definition. But this analysis misses a critical nuance in the case law and the important distinction between damage to the negligent contractor’s work and damage to “other property.”
In January, colleagues Joseph D. Jean, Alexander D. Hardiman, Benjamin D. Tievsky, Janine Stanisz and Stephen S. Asay examined New York’s Comprehensive Insurance Disclosure Act, which amended New York Civil Practice Law & Rules (CPLR) § 3101(f) to require defendants in civil cases to disclose voluminous and potentially sensitive insurance materials. When signing the act into law, Governor Kathy Hochul requested that the legislature enact amendments that would reduce the burden on litigants. On February 25, 2022, Gov. Hochul signed into law a variety of amendments that address some—but not all—of the concerns with New York. In “New York Amends Recently Enacted Comprehensive Insurance Disclosure Act Requirements,” our colleagues take a closer look at latest changes to CPLR § 3101(f).
Defendants in New York state court are now subject to some of the most extensive liability insurance disclosure requirements in the nation. On December 31, 2021, Governor Hochul signed into law, effective immediately, the Comprehensive Insurance Disclosure Act, amending New York Civil Practice Law & Rules (CPLR) § 3101(f) to require defendants in civil cases to disclose voluminous and potentially sensitive insurance materials, including applications for insurance policies and information concerning other claims.
In New York Enacts Sweeping New Insurance Disclosure Requirements for State Court Litigants, Joseph D. Jean, Alexander D. Hardiman, Benjamin D. Tievsky, Janine Stanisz, Stephen S. Asay examine the new requirements more closely and present guiding principles for compliance.
Last month, we discussed a decision by the Northern District of Illinois finding an amount labeled “restitution” in a settlement between a pharmaceutical company and the DOJ was insurable loss under a D&O policy. Shortly after that post, the New York Court of Appeals reached a similar conclusion, continuing the trend of looking beyond the labels used for the payments in the underlying settlement agreement. In rejecting the insurers’ argument, the court evaluated the purpose of the payments and the nature of how they were derived to find the payments at issue were insurable under a Professional Liability policy, despite being called “disgorgement.”
Do employees have a privacy right in the shape of their faces, the color of their eyes, or the texture of their fingertips? In many states, the law now says yes—leading employers to ask: Are resulting biometric privacy claims covered under their existing policies, or is insurance otherwise available?
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