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Last week, Merck & Co. filed documents with the Supreme Court of New Jersey indicating that it reached a settlement with its “all risk” property insurers in a long-running coverage dispute involving over $1.4 billion in losses stemming from a 2017 NotPetya cyberattack that impacted tens of thousands of Merck computers. The coverage litigation, Merck & Co. v. ACE American Insurance Co., focused on the key question of whether the policies’ “hostile/warlike” exclusion applied to the NotPetya attack, which some intelligence agencies have attributed to Russian government attempts to destabilize Ukraine. The settlement was announced just a few days before the New Jersey Supreme Court was set to hear oral arguments during an appeal of the New Jersey state appeals court’s affirmance of a 2021 trial court ruling in Merck’s favor. Merck’s insurers had argued that Merck’s losses were barred by a war exclusion, but the New Jersey trial court found that the exclusion did not apply to malware and cyberattacks and instead was intended to apply only to physical acts of warfare between the armed forces of two or more countries. The terms and the amount of the settlement have not yet been disclosed.Continue Reading Merck-Settlement of $1.4 Billion Coverage Dispute Over NotPetya Cyberattack Places Renewed Spotlight on War Exclusions in 2024

With bank stability and the related stock market rout now dominating the headlines for the first time since the 2008 financial crisis, are financial institutions’ D&O and bankers’ professional liability / E&O (“BPL”) liability policies ready to help backstop coverage, or potentially full of holes?  Coming out of a hard market where insurers carefully and quietly pulled back some policy enhancements over the course of several years, now is the time for financial institutions to review their insurance policies to identify and fill any significant gaps and holes in their executive risk coverages.  The last two weeks demonstrate that financial institutions, as well as their directors and officers, face the risks of receivership, government investigations, securities lawsuits, and personal liability following a bank failure or stock rout in the face of financial stability concerns.  Continue Reading Financial Institutions and Bank Directors and Officers in the Crosshairs – Are Their Insurance Policies Really Primed and Ready?

Cyberattacks on corporate networks are on the rise, and the ramifications from such an attack can be financially devastating. Recent benchmarking data shows that the number of material cyber breaches at large businesses increased by 20.5% from 2020 to 2021, with cybersecurity budgets across various industries aimed at preventing breaches jumping 51%.[1] Although companies

When seeking insurance coverage for “long-tail” mass tort and environmental claims that involve alleged exposures and injuries spanning multiple years, businesses often look to their occurrence-based commercial general liability (“CGL”) policies.   These policies are designed to provide broad coverage for defense costs, settlements, and potentially adverse judgements.  However, CGL policies generally cover “occurrences” during one-year policy periods and renew on an annual basis, which can complicate efforts to seek coverage for claims involving alleged injuries or property damage spanning decades.  Moreover, for severe claims, businesses may need to obtain access to one or more of their excess CGL policies.  Therefore, determining which policies to pursue, whether policies in multiple policy periods will respond, and how to access valuable excess coverage are factors that should always be considered with coverage counsel when facing long-tail exposures.  Courts across the country are divided on how these questions should be answered.  A recent decision issued by the Supreme Court of North Carolina in Radiator Specialty Co. v. Arrowood Indemnity Co., provides guidance to North Carolina policyholders attempting to maximize coverage for long-tail claims.Continue Reading North Carolina Supreme Court Provides Guidance to Policyholders Attempting to Maximize Insurance Coverage for Long-Tail Claims

Entering 2020, corporate policyholders already faced a hardening insurance market. But as the COVID-19 pandemic continues to wreak havoc on global markets and sow civil unrest throughout the globe, and the insurance industry faces unprecedented losses, the market has further deteriorated entering 2022.

In fact, Reuters reported COVID-19 losses of $44 billion so far, which represents the third-largest cost to insurers of any catastrophe to date (behind Hurricane Katrina and the 9/11 terrorist attacks). These factors have not only made some insurance companies reluctant to extend new coverage, but have also incentivized insurance companies to deny or delay claims until their balance sheets recover.Continue Reading In a Hard Global Insurance Market, Will Insurers Cover Political Risk Insurance Claims?

On Nov. 23, 2021, the New York Court of Appeals sided with the policyholder, resolving a decades-long insurance coverage dispute, J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., __ N.E.3d __, 2021 N.Y. Slip Op. 06528, 2021 WL 5492781 (Nov. 23, 2021). It held that a $140 million disgorgement payment to the Securities and Exchange Commission (SEC) was a covered “loss” rather than an uninsurable “penalt[y]” under the error and omissions/professional liability policies at issue.

The 6-1 majority opinion is a landmark decision on the insurability of disgorgement and restitution damages that will likely have ramifications for policyholders seeking to recover similar losses from their insurers in disputes in New York and throughout the country.Continue Reading New York’s Highest Court Sides With Insured: $140M Disgorgement Payment Is Covered Loss