The digitization of business is in high gear. Although some sectors have embraced this change, others, including the insurance industry, have been slower to implement advances. While we’ve previously addressed insurance coverage for artificial intelligence (AI) risks, the risk-averse culture of the insurance industry has been particularly resistant to change in its own business.
Hub City Enterprises Inc. and Wall St. Enterprises of Orlando Inc. ran an event called “Rum Fest 2017” in Orlando, Fla. Sounds like fun, doesn’t it? But one of the partygoers, who apparently paid to attend the festival, was not amused. In the middle of the party, Robert Hunt saw an oversized beach ball barreling towards his head. When he reached out to deflect the projectile, he ended up suffering injuries to the ligaments in his arms. Mr. Hunt sued Hub City and Wall St. Enterprises, who tendered the claim to Princeton Excess and Surplus Lines Insurance Co., their liability carrier, for a defense. Princeton initially assumed defense of the claim, but it soon repaired to federal court seeking a declaration that it had no duty to defend the suit. In Princeton Excess & Surplus Lines Ins. Co. v. Hub City Enterprises, Inc., the Southern District of Florida ruled in favor of the insurer.
Northwestern National, the successor to Bellefonte Insurance Company, was placed into liquidation by a court in Wisconsin in May. Northwestern National was previously put into rehabilitation by the Wisconsin Office of the Commissioner of Insurance in 2007 and exited rehab in 2012. Its policyholder surplus has continued to decline in recent years and does not meet the statutory minimum. A claims bar date has been set for November 2, 2019. More information and Proof of Claim forms can be found at the liquidation website.
In November 2018, we noted that the California Supreme Court had agreed to resolve Pitzer College v. Indian Harbor Insurance Company, a case that hinged on the importance and application of California’s notice-prejudice rule. On August 29, 2019, the court issued its decision: a policyholder-friendly ruling that opposes technical forfeitures of insurance coverage. Although further proceedings are needed to determine whether Pitzer will ultimately benefit from this victory, the principles it articulates are of immediate interest to policyholders in California and across the country.
In a prior post, we reported an important ruling of first impression by the Delaware Superior Court that a shareholder appraisal action against Pillsbury’s client Solera Holdings Inc. was a “Securities Claim” under Solera’s directors and officers liability insurance policies. In the same decision, the court ruled on two additional issues that no Delaware court had previously decided and that highlight the importance of understanding the specific terms of your company’s D&O policies.
When a company receives a claim or lawsuit, it is critical to provide timely notice to its insurers. But when the claim is first made, sufficient facts may not yet be known to indicate which policy will respond. Many policies also contain language that purports to shift coverage to earlier insurance policies for claims that “relate back” to earlier events. As a best practice, policyholders and their brokers often provide notice of a claim under all policies that might cover a loss, to ensure that coverage is not defeated by failure to meet any obligation to give notice. This method of first providing notice for claims to multiple insurers, and then working with insurers to determine the correct policy to respond, is a well-established practice for managing insurance claims. Once the proper policy to respond to the claim is established, exclusions in the other policies kick in to avoid double coverage.
Pillsbury secured an important victory for its client, Solera Holdings Inc., when Delaware Superior Court Judge Abigail LeGrow held—in a matter of first impression anywhere in the country—that a shareholder appraisal action challenging the price Solera obtained for its shares when it sold itself to private equity firm Vista Equity Partners was a “Securities Claim” within the meaning of Solera’s directors and officers liability insurance policies. Last month’s groundbreaking decision in Solera Holdings, Inc. v. XL Specialty Ins. Co., may be found here.
Disputed insurance claims often end in confidential settlements, as do many insured liabilities. But does it matter if lawyers sign a settlement agreement approving “as to form and content”? Last month, the California Supreme Court answered that question with a resounding “Yes!” In Monster Energy Company v. Schechter, a unanimous California Supreme Court ruled that a lawyer signing such an agreement may be bound by that agreement’s confidentiality provisions.
Packed stadiums? Check.
Players and teams with huge followings? Check.
Massive social media appeal? Check.
But here, the events that spectators are so eager to attend aren’t live basketball or football games. Instead, fans are lining up to watch others competitively play video games, more commonly known as esports. In 2018, esports garnered 258 million unique viewers globally, compared to 204 million for the National Football League’s 2016 regular season. In 2019, esports are predicted to draw 299 million viewers and hit $2 billion in revenue, up from $1.5 billion in 2018. The International Olympic Committee is even considering adding esports to the 2024 Olympic Games.
Hurricane Barry provides the latest reminder of insurance precautions that should always be top of mind for business owners in coastal areas. In “Hurricane Barry: Prepare Now to Maximize Insurance Recoveries,” colleagues Tamara D. Bruno, David F. Klein, Joseph D. Jean and Vincent E. Morgan provide a list of helpful reminders and immediate and proactive steps one should take to maximize insurance recovery before, during and after a tropical storm or hurricane makes landfall.
