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Readers of this blog have come to expect from our lawyers incisive and reliable analysis of the most important insurance coverage issues of the day. At least one judge apparently feels the same way.

In a recent decision in the ongoing coverage dispute brought by TIAA-CREF against its various D&O carriers, Judge Jan Jurden cited a piece written by Peter Gillon in Law360 (“Another Blow Dealt to Restitution, Disgorgement Defense”) as legal authority for her conclusion that “the current trend in New York and additional jurisdictions ‘has been for courts to narrow the [disgorgement] defense considerably,’ and in some cases ‘reject[] insurers’ restitution/disgorgement defense outright.’”

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Barely removed from the Super Bowl, football fans have begun their long hibernation in anticipation of next season. But the Patriots’ incredible comeback reminds me that it coincided with the tenth anniversary of one of the great NFL coach rants, courtesy of the late Dennis Green of the Arizona Cardinals. Coach Green was interviewed after his team blew a 20-0 halftime lead to my beloved Chicago Bears. Using some other choice words, Green said about the comeback kids: “the Bears are who we thought they were!”

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So what does this have to do with insurance? Well, unlike Coach Green, not all policyholders can say that their insurance policies are exactly what they thought they were. A recent Fifth Circuit case, Richard v. Dolphin Drilling Ltd., is such a case. There, the policy exclusions were so broadly construed that 99 percent of the insured’s operations were excluded from coverage.

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Out of the blue one morning, a destination hotel’s operator receives an email informing it that the hotel’s computer and electronic key systems have been infiltrated, leaving the hotel locked out of its iStock-155359193-keycard-200x300own computer system and, even more distressing, preventing hotel guests from utilizing their key cards to gain entry to their rooms and other hotel amenities. The email demands payment in the amount of 2 Bitcoin (approximately $1,900) to restore computer and key card functionality, which will double if not paid by the end of the day. The email provides details to access a Bitcoin wallet to make the payment, and then ends by stating, “Have a nice day!”

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Say you want to make a reservation for a nice dinner. Do you call the restaurant and simply say you plan to come sometime in the next two weeks? Of course not. If you want your reservation to doiStock-516720550-reservations-200x300 any good, you give the restaurant a date, time, and number of people. So why should insurers be able to issue reservations of rights where they quote half the policy and say they may deny coverage at some time, based on some unspecified provision? The South Carolina Supreme Court was presented with that question and decided that insurers need to provide greater specificity or risk losing their reservations completely.

 

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It’s a jungle out there. Penalties imposed under the Foreign Corrupt Practice Act for bribery charges proliferated like vines in 2016. In the dramatic conclusion of the Brazil-based Operation Car Wash probe, Brazilian construction giant Odebrecht-Braskem agreed to pay U.S., Brazilian and Swiss authorities $3.5 billion for paying bribes to government officials around the world. Teva, the international pharmaceutical company, was revealed to have paid bribes to Russian, Ukrainian and Mexican officials, and would have to pay nearly $500 million in penalties.iStock-512289218-jungle-path-300x200

But while these penalties are eye-catching, the internal investigations that responsible corporations undertake to avoid them can be even more expensive. A thorough internal investigation includes hiring outside attorneys, accountants, experts and consultants and sending them around the globe to probe potential bad acts in a company’s foreign offices. Sometimes, the fees continue to roll in even after settlement, when companies are ordered to pay outside monitors to make sure they are still complying with their FCPA obligations. A company may easily find itself on the receiving end of a multi-million dollar bill.

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Texas is not a place known for surrendering. (Remember the Alamo!). But like their compatriots in other states, Texas policyholders sometimes see the advantage of surrendering their liability iStock-522384399-alamo-300x200insurance policy rights to their litigation adversaries in order to retreat from the dispute. Whether they may have to stand and fight first is a question that the Texas Supreme Court may finally answer in Great American Ins. Co. v. Hamel. In that case, the Texas Supreme Court has agreed to review whether an insurer may be responsible for a judgment entered against its insured that is the result of a non-adversarial trial. This will be an important decision that will have significant repercussions for insureds and insurers alike.

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The first thing your insurance company must do after receiving notice of a loss is investigate your claim and make a coverage determination. The insurer will evaluate the strength of your claim, whether to pay it and what amount to pay. Even if the insurer thinks your claim is potentially covered, it may take the position that your claim is not covered or slow down its claim adjustment process to delay a payout in an effort to leverage a settlement for less than full value. If you sue to challenge your insurer’s coverage denial, a critical step to protect your rights and get the full coverage owed is to gain discovery of the insurer’s internal claims documents.

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We’ve come a long way since the days of Timothy Leary—both in terms of marijuana legalization, and in the diversity of business insurance products that have reached the market to insure marijuana-related risks. As of this blog post, more than 20 states have legalized marijuana for medical use, including eight states that have also legalized it recreationally. At the federal level, however, marijuana continues to be a Schedule I controlled substance, making it illegal for any purpose. Whether and to what extent the federal prohibition will be enforced by the Trump administration is not yet known. As the legal marijuana industry continues to grow apace, industry participants would do well to consider the insurance products available to them and potential pitfalls for the unwary.

Hand Holding Small Marijuana Leaf with Cannabis Plants in Background

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The Florida Supreme Court recently issued a widely reported decision, Sebo v. American Home Assurance Co., which applied the concurrent cause doctrine in ruling that an all-risk homeowner’s insurance policy provides coverage when damage is the result of multiple events—so long as at least one of them is a covered peril. Plaintiff John Sebo purchased a home, which he insured under an all-risk homeowner’s policy written by American Home. As an “all-risk” policy, it provided coverage for damage to property caused by all perils, except those it explicitly excluded. Design defects and faulty construction were among the excluded perils. Within less than two months of buying the house, Mr. Sebo discovered major leaks during rainstorms, which were later found to be the result of design defects and faulty construction. Hurricane Wilma then caused even more damage. When Mr. Sebo sought coverage for damage from the water intrusion, American Home denied most of the claim on the grounds that it was caused by design defects and faulty construction—which were excluded perils. But the Florida Supreme Court found coverage.

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In 1173, builders broke ground in Pisa, Italy, on the Torre de Pisa (that is, the Tower of Pisa). At over 183 feet, it was to be a grand statement—remember, this was 1173, not 2016.

Torre Inclinada de Pisa

But the story is not all roses. The tower began immediately to tilt—by the time they started laying just the second floor of the tower, it was leaning. Thus, it earned the name we all now know (and love?), “Torre pendent di Pisa”—the Leaning Tower of Pisa. Wikipedia explains, “[t]he tower’s tilt began during construction, caused by an inadequate foundation on ground too soft on one side to properly support the structure’s weight. The tilt increased in the decades before the structure was completed, and gradually increased until the structure was stabilized (and the tilt partially corrected) by efforts in the late 20th and early 21st centuries.” The tower now leans over 12 feet from the vertical axis.

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