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The below checklist includes essential considerations and steps to take for property owners and businesses that stand to be affected by hurricanes.

  1. Make an inventory of risk pathways that could affect your business.
    • Identify essential supply chains, raw materials or parts providers and service providers to assess impact of potential disruptions.
      • Stress-test what would happen if each supply chain were interrupted.
      • Identify markets and customers whose disruption could affect your business.
    • Identify potential sources of liability if your business was impacted by the hurricanes.
      • Failure to meet contracted-for requirements
      • Failure to take adequate measures to protect customers from harm
      • Management failure to train employees to plan adequately for impacts, with concomitant claims by shareholders, regulatory authorities, customers, third parties
      • Other?
    • Identify other constituencies that might be affected by disruption to your business and risks associated with such disruption.
  2. Before any disruption occurs, identify and review insurance products that may respond.
    • First-party Property and Business Interruption insurancefor stoppage or slowdown of your own business, typically due to physical loss or damage to property
    • Contingent Business Interruption (CBI) or Supply Chain Risk insurancefor disruption of supply chains and, potentially, markets
    • Commercial General Liability (CGL) insurance—for liability to third parties arising from bodily injury or, potentially, personal injury or property damage
    • Directors & Officers (D&O), Management Liability, Errors & Omissions (E&O), and Professional Liability insurance—for claims that management personnel failed to take appropriate measures to protect the business or third parties
    • Event Cancellation insurance
    • Travel insurance
    • Workers’ Compensation insurance—adopt protocols and procedures to help employees make a record establishing work-relatedness in submitting claims
  3. Review business contracts to assess whether you are obligated to provide coverage to customers/clients, joint venture partners, contractors or others for risks outlined above.
  4. Review customer contracts to assess whether you are entitled to coverage provided by customers/clients, joint venture partners, contractors or others for risks outlined above.
    • If so, request copies of relevant insurance policies (not just certificates of insurance) and review them to assess potential coverage.
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A recent decision by a California appellate court in Practice Fusion, Inc. v. Freedom Specialty Insurance Company, denying the policyholder more than $118 million in Directors & Officers liability coverage based on an expansive professional services exclusion, is a sobering reminder that this nettlesome exclusion—when over-broadly applied, as was the case here—may render your D&O coverage worthless. The mere fact that Practice Fusion’s insurers asserted this exclusion in the circumstances of this claim should remind brokers and risk managers of the importance of eliminating, or at least narrowing, professional services exclusions where there is any potential argument that the insured is engaged in providing any form of “professional services.” Although it is of course appropriate to fill any gaps created by the exclusion with commensurate Errors & Omissions coverage, E&O policies do not provide the same scope of coverage, or even limits, that are available under D&O policies.

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GettyImages-1266969516-300x200In what was likely a shock to coal-fired electric utilities, the U.S. Court of Appeals for the District of Columbia Circuit held on June 28, 2024, that proposed decisions by the U.S. Environmental Protection Agency in January 2022—prohibiting coal-fired power plants from closing coal ash impoundments where coal ash is in contact with groundwater—were a “straightforward application” of a previously promulgated agency rule. In Electric Energy, Inc. v. Environmental Protection Agency, the appeals court validated EPA’s actions as a proper exercise of authority. This ruling ends (at least for now) a regulatory odyssey that began in 2015.

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GettyImages-1410816038-e1717616912796-293x300When is a claim “brought” against an insured?

A Delaware bankruptcy court’s answer to this seemingly innocuous question turned into a nightmare for the estate of a bankrupt insured. The insured was deprived of coverage under a claims-made D&O policy for a claim filed three years after the retroactive date of the policy, on the basis that the claim arose from the same facts as an earlier False Claims Act suit that was filed before the policy’s retroactive date but never served upon the insured.

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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.

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GettyImages-1363364623-300x169In the early morning of March 26, 2024, a cargo ship estimated to weigh more than 100,000 tons catastrophically struck the 1.6-mile-long Francis Scott Key Bridge while departing the Port of Baltimore. This led to fatalities and interruptions to the major maritime artery into and out of the port city. Not only did 31,000 vehicles cross this bridge each day, the now blocked Baltimore port handled 52.3 million tons of foreign cargo worth nearly $81 billion in 2023 and is responsible for more than 15,000 jobs.

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Red-sea-1500797449-300x169Yemeni-based Houthi forces have attacked more than two dozen vessels transiting the Red Sea since the October 7, 2023, start of the current Israel-Hamas conflict, leading to a surge in marine war insurance premiums. Houthi elements have attacked commercial shipping with the stated goal of destroying America and Israel, although non-American and non-Israeli vessels have been fired upon, too, since the U.S. and its allies have been carrying out strikes against the Houthi elements in response to their attacks. The resulting increased risks of sailing through the Red Sea have led some vessels to avoid the Red Sea and divert to the Cape of Good Hope, including those operated by Maersk.

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close-up view of camera lens on a smartphoneResolving an issue of first impression, the California First District Court of Appeal recently decided that property policyholders required to submit to an examination under oath (EUO) have a right to record the entire examination proceeding, including by capturing the insurers’ representatives and adjusters on video.

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GettyImages-182494032-205x300Judgment Preservation Insurance (JPI), also sometimes referred to as Judgment Protection Insurance, has become both more requested and available in recent years. As more plaintiffs seek ways to protect court judgments, more insurers are prepared to assume the risk of insuring such risks and so have entered the market and expanded capacity. As a result, what was formerly a niche insurance product has, of late, been more widely discussed and considered by prospective policyholders, raising the question of whether your company should consider JPI if you win a substantial sum in a trial court.

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GettyImages-1302089727-300x200In recent months, the United States-Mexico border has seen an unprecedented surge of migrants. With this wave, various state and local authorities across the nation have expressed a strain on their public resources and housing capacities. To relieve overwhelmed border towns, Texas Governor Abbott initiated a migrant relocation plan to bus migrants to certain “sanctuary cities” like New York, Washington, D.C., Chicago, Philadelphia, Denver and Los Angeles.

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