A deceased small business owner’s widow sued the business’s two other co-owners for breach of fiduciary duty for failing to apply a life insurance payout to the company to buy out her deceased husband’s shares. The two co-owners submitted the claim to their company’s management liability insurer, which denied coverage for the claim, relying in part on the policy’s contractual liability exclusion. The two co-owners sued the insurer seeking coverage. The district court granted summary judgment for the insurer. On February 19, 2020, the Eighth Circuit, applying Kansas law, affirmed the district court in an opinion that, as discussed below, raises some interesting issues. The Eighth Circuit’s opinion can be found here.
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One of the hot topics for mainstream P&C insurers these days is dealing with “silent cyber” – that is, the coverage for cyber-related losses in traditional property and casualty insurance policies. There are a number of initiatives underway in the insurance underwriting community as insurers try to address silent cyber. However, as noted in an interesting January 14, 2020 memo from the Covington law firm entitled “The Noise About ‘Silent Cyber’ Insurance Coverage” (here), these initiatives have important implications for policyholders. Among other things, these initiatives potentially could result in a gap in policyholders’ coverage for cyber-related losses, as discussed below.
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Umesh Pratapa

As many insurance industry observers know, one of the great concerns within the industry now is the possible impact of “silent cyber” – that is, the potential for cybersecurity-related coverage outside of purpose-built cyber insurance policies. In the following guest post, Umesh Pratapa takes a look at the silent cyber phenomenon.  A version of this article previously was published on Umesh’s website (here). Umesh is an independent insurance consultant based in India. I would like to thank Umesh for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Umesh’s article.
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Francis Kean

Earlier this month I published a guest post in which John McCarrick and Paul Schiavone suggested various policy terms and conditions they proposed should be revisited as D&O insurers seek profitability. My comments on their proposals appeared as an appendix to John and Paul’s article. John and Paul’s article has provoked a series of responses. Last week, I published a second guest post in which Paul Ferrillo provided his thoughts in response to John and Paul’s article. And in yet another guest post, Gil Isidro provided his comments as well. Now, as set out below, Francis Kean adds his voice to the dialog. Francis is Executive Director FINEX Willis Towers Watson. I would like to thank Francis for allowing me to publish his comments. Here is Francis’s article.
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Many of you probably saw the news this past week that Target has filed a lawsuit against one of its insurers over losses the company sustained in connection with the company’s 2014 data breach. The Target lawsuit is the latest in a series of high profile insurance battles in which companies are seeking to recoup losses resulting from cybersecurity incidents. However, as my friend, colleague, and Cyber insurance maven Mickey Estey pointed out to me, in its lawsuit Target is in fact not seeking to recover its claimed losses under a cyber insurance policy; rather, in its latest lawsuit, Target is seeking to recover for certain of its losses under its general liability policy. The Target lawsuit is only the latest in a series of high-profile insurance disputes in which companies that have sustained losses from a cybersecurity event are seeking coverage under a variety of different types of policies.
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Dan Wolf

As I discussed in a recent post, in July 2019, a Delaware Superior Court judge held that an appraisal action is a Securities Claim within the meaning of the applicable D&O insurance policy. While this part of the court’s ruling was noteworthy, there was another part of the court’s ruling that was also important. In addition to the Securities Claim issue, the court also determined that policy provided coverage for pre-judgment interest on the fair value payment in the appraisal action, even though the policy did not provide coverage for the payment itself.

In the following guest post, Dan Wolf, an associate at the Gilbert law firm, takes a look at the pre-judgment interest aspect of the recent Delaware opinion. Among other things, Dan suggests that this aspect of the court’s decision changes defendants’ analysis of whether or not to prepay appraisal claimants. A version of this article first appeared on his firm’s blog, here. I would like to thank Dan for his willingness to allow me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Dan’s article.
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One way or the other, I have been doing D&O for more than 35 years. One of the reasons I love what I do is that there is always something new and so I am always learning. This week’s new thing is a recent ruling by a federal district court ruling that a debtor’s insurer could not rely on a bankruptcy exclusion in the debtor’s D&O policy to deny coverage for an underlying claim because the exclusion violates the bankruptcy code’s probation against ipso facto provisions in executory contracts. In all my years, I don’t believe I have ever run across the bankruptcy code’s ipso facto provision prohibition, so the district court’s ruling in this case was a learning opportunity for me – and I suspect it will be for most readers as well.
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In the latest development in nearly decade-long legal battle, a New York intermediate appellate court has held in light of the U.S. Supreme Court’s 2017 decision in Kokesh v. SEC that amounts Bear Stearns paid under an SEC disgorgement order represent a “penalty” for which coverage is precluded under the bank’s insurance policy. This ruling, which overturned a trial court order holding that the disgorgement amount was covered, represents a substantial reversal of fortune for the claimants in this long-running and high-profile insurance coverage dispute. While further proceedings in the case seem likely, the ruling nevertheless represents a setback for policyholders seeking to establish insurance coverage for disgorgement amounts. The intermediate appellate court’s September 20, 2018 opinion can be found here.
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Among the most interesting and significant recent developments on the financial landscape has been the rise of cryptocurrencies and ICOs. As these digital assets have proliferated, they have created a host of regulatory and legal issues. These issues in turn have presented related insurance issues. In the following guest post, John McCarrick, Sedgwick Jeanite, and Michael Goldwasser of the White & Williams law firm take a look at the claims and insurance coverage issues that ICOs present. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would to submit a guest post. Here is the authors’ article.
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One of the key elements to establish coverage under a directors and officers insurance policy is the existence of claim is for actions undertaken by an insured individual in an insured capacity – that is, in his or her capacity as a director or officer of the company. Things in life are never simple, and lawsuits often allege that corporate director or officer defendants were acting in multiple capacities – that is, both in their capacity as a director or officer and in other capacities as well. These multiple capacity claims often present policy interpretation and coverage issues under D&O insurance policies.

In a recent case, the District Court of North Dakota (applying North Dakota law) held that coverage under a D&O insurance policy does not apply to a claim alleging that the insured defendant was acting in multiple capacities. The court also held that the Insured vs. Insured exclusion precluded coverage where the claimants included both insured persons and individuals that were not insured persons. The decision raises some interesting policy language and policy interpretation issues. A copy of May 18, 2018 decision by District of Massachusetts Judge William G. Young, sitting by designation in the District of Nevada, can be found here.
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