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Insuring Intangible Assets Like Data, Brand, and Intellectual Property

 

When people think of property insurance, they often immediately think of buildings – things like houses, retail stores, or warehouses.  If they continue the thought further, they may think of additional items of property like furniture or inventory.  These items have a very real physical presence, and that physical presence subjects them to potential damage or loss from known hazards like a fire or water damage.  Property insurance exists to protect individuals and companies from that loss.

Marriott's Cyber Breach Announcement Shows How Years Can Pass Without Even Large Businesses Noticing A Hack

It seems not a week goes by these days without news breaking of another massive data breach affecting hundreds of millions of people.  At the end of November 2018, Marriot, the global hotel chain, announced they had been hacked and the personal information of five hundred million preferred customers had been exposed to criminals. What’s worse, Marriott announced the original data breach occurred over four years ago, leaving people unknowingly at risk for identity theft during that time.

Insurance Coverage For Defective Work Differs Across State Lines

Commercial general liability policies provide insurance on a per occurrence basis.  What constitutes an occurrence, though, is an area of significant debate.  This is an issue that constantly arises in construction cases, especially construction defect.  The commercial general liability standard language defines an occurrence as an “accident . . .”.  Yet courts have divided on whether faulty workmanship in the course of construction constitutes an “accident” and therefore an “occurrence” triggering coverage under a commercial general liability policy. 

How An Indemnification Clause In A Contract Can Causes Problems For Your Business

Risk transfers are a vital aspect of any comprehensive risk management plan.  Theoretically, those in the best position to avoid a risk should always bear responsibility for the risk.  The real world does not work that way, unfortunately.  Oftentimes, larger companies and larger contractors use risk transfers to try and push liability “downhill” – onto the backs of smaller companies with less negotiating leverage.

August 2018 Joint Employer Status Update

 

Ever since August 27, 2015, employers that use staffing agencies, employ subcontractors or have franchisees have faced significant uncertainty over the extent to which they constitute employers according to the United States Department of Labor. On that day, the National Labor Relations Board issued its decision in Browning-Ferris Industries of California. The Browning-Ferris decision overturned recent precedent regarding when two or more entities would qualify as joint employers.

Contracts And Additional Insured Status [Understand Your Risk]

 

 

Contracts in some industries, especially construction, often require an additional insured endorsement as part of the contract’s insurance requirements. This normally takes the form of the general contractor requiring a subcontract to list the general contractor as an additional insured on their general liability policy, as well as others. Because of these requirements, many general liability policies offer a blanket additional insured endorsement for any entity required to be added as an additional insured by a written contract. The language used in these contracts and endorsements can have far-reaching consequences and failing to understand them can cost companies millions of dollars.

The Perilous Duty To Defend Manufacturers And Distributors Through The Opioid Crisis

  

As companies, states, workers compensation boards, and various federal government agencies grapple with the growing opioid epidemic, litigation against the pharmaceutical companies producing opioids for medical treatment has begun in earnest.  Multiple state governments have sued these companies alleging a host of legal violations, often centered around deceptive marketing claims.  These lawsuits have in turn caused a number of spin-off actions between insurance companies and pharmaceutical companies to determine the extent to which insurance companies have duties to defend or indemnify the pharmaceutical companies from the ongoing litigation.

Bad Faith Breaches And Their Penalties Look Different From State To State

Insurance companies have a duty to their policyholders to attempt to settle litigation that might exceed policy limits in good faith. This duty means that insurance companies must act honestly, intelligently, and objectively in deciding whether to accept a settlement offer that stays within the policy limits. Failure to do so may result in the insurance company being liable for the entirety of the judgment against the policyholder, even if the verdict exceeds the policy limits.

Does Your Policy Lack Coverage Due To Prior Publication Exclusions?

Standard commercial general liability policies and umbrella policies cover what is known as “advertising injury.”  This coverage applies where a company causes damages to a third party through its advertising, either by defamation, violation of copyrights or trademarks, or violations of privacy rights.  As with many types of coverage, however, companies need to understand the exclusions applied to these types of claims to best address their loss exposures.

When Misaligned Priorities Between Your Business And Insurance Company Leads To A Failure To Settle

Insurance litigation can put commercial businesses in a number of complicated binds.  Often times, the interests of the policyholder and the insurance company providing their defense do not align perfectly.  This part of the reason insurance companies will often provide their policyholders with independent counsel, commonly referred to as Cumis counsel.  These misaligned interests can also present themselves as part of efforts to settle a case.