Complex insurance coverage disputes where policyholders fight for coverage of underlying claims, e.g., catastrophic losses from hurricanes, wildfires, floods, climate change effects.

Property Insurance Coverage for Emerging Risk of Underground Climate Change 

July 8th, 2024|Categories: CLE OnDemand, Environmental Torts, Insurance|Tags: , , , , |

In this CLE webinar, Anderson Kill attorneys, Dennis J. Artese, Ethan Middlebrooks, and Thomas Dupont and professional engineer, Kenneth R. Quigley discuss permutations of policy language and state law that may affect coverage for damage caused by underground climate change, including how state law treats anti-concurrent causation clauses, whether “human-caused” exceptions to earth movement exclusions may apply to underground climate change, and whether “abrupt collapse” exceptions to exclusions for building collapse may apply when undetected structural damage triggered by underground climate change triggers collapse.

Biometric Privacy Litigation and Coverage Disputes with John Leonard and Cort Malone

June 30th, 2024|Categories: Complex Business Litigation, ELP, Insurance|Tags: , , , , |

Biometric data is big business. In many cases it even helps make our lives better.  It also presents  significant risks for a variety of parties, in addition to those of us who surrender our data. Companies collecting,  storing, utilizing, and monetizing the data face penalties and litigation bolstered by the increasing number of states enacting biometric information privacy acts, or BIPAs, the first of which was in Illinois. In this episode, we discuss the state of biometric privacy litigation, the regulatory landscape, insurance coverage considerations, and recent rulings with guests John Leonard and Cort Malone of Anderson Kill P.C.

Protecting Policyholders as AI Is Developed for Insurance Claims Handling by Marshall Gilinsky and Madison Marlow

April 23rd, 2024|Categories: Corporate Compliance, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, New Featured Post for Home Page, News|Tags: , , , , |

The authors, Marshall Gilinsky and Madison Marlow discuss the integration of artificial intelligence (AI) within the insurance industry and outline the potential consequences of diminished human oversight in AI-driven insurance claims handling, highlighting the need for watchdogs and regulators to demand that AI tools under development afford “explainability” and protect policyholder rights.

The Use and Abuse of the Pollution Exclusion by Robert D. Chesler, Dennis J. Artese, and Jamie O’Neill

April 19th, 2024|Categories: Emerging Litigation & Risk, Environmental Torts, HB Tort Notes, Insurance, Journal, New Featured Post for Home Page, News|Tags: , , , , |

The authors, Robert Chesler, Dennis Artese, and Jamie O'Neill of Anderson Kill examine recent court decisions and ongoing cases that have brought to the forefront the critical issue of the reach of pollution exclusions in insurance policies.

Property Insurance Coverage for Emerging Risk: Underground Climate Change

January 31st, 2024|Categories: Emerging Litigation & Risk, Environmental Torts, HB Tort Notes, Insurance, Journal, New Featured Post for Home Page, News|Tags: , , , |

Studies have shown that “underground climate change” is affecting ground soil conditions, causing structural strains on buildings and exacerbating cracks and defects in walls and foundations. The authors, Dennis Artese, Ethan Middlebrooks, and Thomas Dupont analyze permutations of policy language and state law that may affect coverage for damage caused by underground climate change, including how state law treats anti-concurrent causation clauses, whether “human-caused” exceptions to earth movement exclusions may apply to underground climate change, and whether “abrupt collapse” exceptions to exclusions for building collapse may apply when undetected structural damage triggered by underground climate change triggers collapse. As the authors note, "there are numerous arguments in favor of coverage under all-risk property insurance policies for losses related to underground climate change".

Litigation After Biometric Privacy Law Violations: Policyholder Victories and Their Implications

January 19th, 2024|Categories: Corporate Compliance, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

Insurance companies are implementing new measures to try to avoid paying for liabilities attached to consumer and employee biometric privacy law violations. The authors, Cort Malone and Abigail Damsky explore the issues companies and policyholders should be examining to ensure adequate protection in the present and future. As the authors note, “as more states pass biometric privacy laws, it is critical not only to follow court decisions but also to understand how insurance companies are attempting to avoid liability for such claims.”

The Promise and Peril of Quantum Computing and Its Implications for Cyber Insurance

January 17th, 2024|Categories: Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News, Technology Law|Tags: , , , , |

Quantum computing, like artificial intelligence, is one of several emerging technologies that could either save the planet or end the world, depending on which expert is holding forth on the issue. This article explores the promise and peril of quantum computing and the potential coverage implications under cyber insurance policies. As Cameron notes, "while cyber insurance may provide some coverage for hazards that result from quantum computing, those policies may not respond to many of the risks".

Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims

June 16th, 2023|Categories: Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Judy Selby (judy.selby@kennedyslaw.com) is a Partner at Kennedys (New York) where she focuses her practice primarily on insurance coverage matters with a concentration in coverage for exposures arising out of emerging technology, digital, and compliance risks. Tracey M.Kline (tracey.kline@kennedyslaw.com) is an Associate at Kennedys (Philadelphia) where she focuses her practice primarily on insurance coverage litigation and cyber matters. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims Abstract: On December 27, 2022, the Ohio Supreme Court unanimously ruled that a business owner’s property insurance policy issued by Owners Insurance Co. to EMOI Services, LLC did not afford coverage for losses sustained in a ransomware attack because computer software is “entirely intangible” and “cannot experience ‘direct physical loss or physical damage.’” EMOI Servs., LLC. v. Owners Ins. Co., 2022-Ohio-4649 (Ohio 2022). In doing so, the court reversed an attention-getting split decision by the lower appellate court. This article takes an in-depth look at the case and discusses its significant implications. The Ohio Supreme Court’s decision was based on its commonsense [...]

Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves?

February 24th, 2023|Categories: Emerging Litigation & Risk, Environmental Torts, Insurance, Journal, New Featured Post for Home Page, News|Tags: , , , , |

The Author Charlie Kingdollar spent his career as emerging issues officer for a major global insurance company, tracking hundreds of future risks like those discussed in this article. Charlie is also a valued member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves? "PFAS chemicals are commonly called “forever chemicals,” because once released into the environment they can take hundreds or even thousands of years to break down." "Estimates that the ultimate costs of [these and other] environmental claims will land between $45 billion and $55 billion is terribly low. Maybe I’m missing something (always a possibility).  If not, the insurance industry is in for a rude awakening."  Abstract: To remain profitable and viable, the insurance and reinsurance industry must rely on estimated forecasts of potential claims many years out to establish an appropriate level of reserves. They rely on data from rating agencies and, based on these estimates, ratchet their reserves up or down accordingly. In past years, major and once unforeseen developments [...]

Autonomous Vehicles: The New Technology Driving the Litigation Conversation

February 24th, 2023|Categories: Emerging Litigation & Risk, Insurance, Journal, New Featured Post for Home Page, News, Technology Law|Tags: , , , , |

The Authors Cort T. Malone (cmalone@andersonkill.com) is a shareholder in the New York and Stamford offices of Anderson Kill and practices in the Insurance Recovery and the Corporate and Commercial Litigation Departments. An experienced litigator, he focuses on insurance coverage litigation and dispute resolution, with an emphasis on commercial general liability insurance, directors and officers insurance, employment practices liability insurance, advertising injury insurance, and property insurance issues. John M. Leonard (jleonard@andersonkill.com) is a shareholder in Anderson Kill’s New York, New York, office, where he handles a full spectrum of insurance coverage matters, such as business interruption losses, D&O and E&O, commercial general liability, environmental liability. Joshua A. Zelen (jzelen@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. He focuses his practice on insurance recovery. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Autonomous Vehicles: The New Technology Driving the Litigation Conversation "The AEV Act requires a policyholder’s insurance company to cover third-party damage caused by a self-driving automated vehicle. A policy may not exclude such damages, except for damages suffered as a direct result of software alterations made without the policyholder’s knowledge, or failure to install safety-critical software [...]

Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and Non‐Fungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth

August 31st, 2022|Categories: Complex Business Litigation, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

Companies and individuals are riding the ups and downs of cryptocurrency and NFTs—with losses and swings in the billions of dollars—but digital assets are not going away. Abstract: The risk of loss in certain categories may be mitigated by insurance, whether provided by tailored policies and/or under policies designed specifically for digital asset owners. Those with exposure to the digital asset sector should be attuned to the emerging marketplace for such insurance products. While it is early days for NFT-specific coverage, the rise of cryptocurrency has created a substantial marketplace for crypto coverage. Insurers are becoming increasingly able to model and assess risk, so more products are coming to market. That said, digital asset holders need to be able to select coverage that best suits their needs. In this article, the authors discuss the history and status of coverage for digital assets to assist readers in exploring how they might use insurance to mitigate risk in this emerging and rocky sector of global finance. "Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity." Introduction Crypto [...]

The Environmental, Social, and Governance Police Have Arrived: Is Your Insurance Ready? by Robert D. Chesler and Dennis J. Artese

August 29th, 2022|Categories: Complex Business Litigation, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill’s New Jersey office and is a member of the firm’s Cyber Insurance Recovery Group. He represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Dennis J. Artese is a shareholder in Anderson Kill’s New York office and chairs the firm’s Climate Change and Disaster Recovery Group. Both are members of the Editorial Advisory Board of the Journal. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The ESG Police Have Arrived: Is Your Insurance Ready? "ESG has become a major initiative for corporate America. In particular, the environmental prong of ESG calls for companies to institute sustainability goals and to invest in environmentally friendly companies. This emphasis has both economic and popular support. Environmental sustainability will make companies better able to compete and make their businesses less risky." Abstract: The environmental, social, and governance movement is a positive one, but like many well-intentioned efforts there is room for abuse and risk. As corporations endeavor to earn accolades and good will for “doing the right thing,” they must also be [...]

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