DFS Partially Clarifies Who Qualifies for an Exemption Under Cybersecurity Regulation

By the terms of 23 NYCRR 500.19(e), Covered Entities that have determined they qualify for a limited exemption from compliance under 23 NYCRR 500.19(a)-(d) of New York’s new Cybersecurity Regulation — as of August 28, 2017 — are required to file a Notice of Exemption with the New York Department of Financial Services (NYDFS) on or prior to September 28, 2017. The first compliance date of August 28, 2017 in New York’s cybersecurity regulation, and the date for Covered Entities
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“Twisting in the Wind: Covered Agreement Dangling by Uncertainty and Politics,” AIRROC Matters

In an article for AIRROC Matters,  Frederick J. Pomerantz examines the uncertain status of the “Covered Agreement,” a novel multilateral insurance agreement between the United States and the European Union. Early advocates hoped that the agreement would result in an “equivalency recognition” between U.S. and EU insurance regulatory systems. According to state insurance regulators, the agreement falls short of this, but does include provisions that would bring these insurance markets closer by eliminating obstacles for U.S. reinsurers doing business in the EU
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Insurer Scores a Slam Dunk in TCPA Suit Before the Ninth Circuit

A recent decision by the Ninth Circuit is sure to catch the eye of insurers for its favorable reasoning rejecting coverage as well as a potential warning sign that policyholders are seeking coverage for Telephone Consumer Protection Act (TCPA) suits beyond CGL policies. In Los Angeles Lakers, Inc. v. Federal Insurance Company, No. 15-55777, 2017 WL 3613340 (9th Cir. Aug. 23, 2017), the Ninth Circuit determined there was no coverage for violations of the TCPA under a D&O policy. In
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Excess Coverage Means Excess Coverage, Unless it Doesn’t: Texas Court Holds Umbrella Policy is Excess over a Primary Policy that is “Excess by Coincidence”

Not all excess coverage is created equal. Some excess coverage is true excess coverage of last resort. But other times, excess coverage is not. For example, a Texas Federal Court recently ruled that a true excess policy applied as excess over a CGL policy that was excess due to the circumstances of the underlying action. By way of background, Pace was the real estate manager for the property owner, Dolce. Pace was an insured under Dolce’s CGL policy, with $1
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Calling all Policies! N.J. Special Master Allocating Costs under Owens-Illinois Implicates Excess Before Primary Exhausts

In The Travelers Indemnity Company v. Thomas & Betts Corporation, No. 13-6187, 2017 WL 3187217 (D.N.J. July 26, 2017), New Jersey’s federal court offers a meaningful example of how trial courts can use a special master to help resolve the tricky issue of allocating defense and indemnity costs involving multiple policies, layers, and years. In Owens-Illinois, Inc. v. United Ins. Co., the Supreme Court of New Jersey urged trial courts to use a special master with “a substantial measure of
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New York Court Denies Reinstatement of STOLI Policies for Lack of Standing, Finds Issue of Fact on Good Faith and Fair Dealing

The plaintiff was an investment trust that purchased life insurance contracts. It brought the instant action seeking damages for the insurer’s alleged breach of nine lapsed life insurance policies on three different individuals with a collective face value of over $80 million. It was undisputed that all nine policies were pieces of a “Stranger Originated Life Insurance” or “STOLI” transaction. Although purchasing life insurance with the intent of selling it to strangers became illegal in 2009, these transactions were legal at the time the policies in
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Catch-All RORs? South Carolina Again Says No

The South Carolina Supreme Court reaffirmed that when an insurer reserves rights to deny coverage, the specific grounds stated in the insurer’s reservation of rights letter are critical. In reaffirming a much-discussed decision from earlier this year, the court refused to consider policy defenses asserted by an insurer because the insurer failed to properly reserve its rights to contest coverage. According to the opinion, the insurer’s letter (1) failed to notify the policyholders of the particular grounds upon which it
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Insurance Making a Summer Splash in Hot Washington, D.C. — Senate Votes to Start Healthcare Debate and Trump Signs Covered Agreement with EU

Amidst the sizzling news of investigations and conversations about North Korea and terrorism, insurance is making its own headlines in the nation’s capital this summer. Congress is debating repealing and replacing the Affordable Care Act (ACA) and the Trump Administration has signed off on the Covered Agreement with the European Union. Most of the insurance news out of Washington, D.C. is centered on Republican efforts to repeal and replace the ACA. Several packages are currently on the table. In May
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Pennsylvania Court Rejects Manifestation Trigger for Latent Property Damage Claims

The Commonwealth Court of Pennsylvania recently determined that the multiple trigger rule, and not the manifestation rule, is the proper standard to use when determining whether an insurance policy is triggered in an environmental property damage claim involving a long latency period between exposure and manifestation. See Pennsylvania Manufacturers’ Association Insurance Company v. Johnson Matthey, Inc., et al., 2017 WL 1418401 (Pa. Commw. Ct. Apr. 21, 2017), This decision, which is at odds with statements by the Pennsylvania Supreme Court
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The Road Less Traveled: In a Case of First Impression, Indiana Court of Appeals Holds SIR Applicable to Additional Insureds

In Walsh Construction Co. v. Zurich American Insurance Co., 2017 Ind. App. LEXIS 137 (Mar. 28, 2017), the Indiana Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Zurich American Insurance Company and against Walsh Construction Company. In a case of first impression, the Court of Appeals held that a self-insured retention (SIR) applied not only to the insurer’s relationship with the named insured, but also, to any additional insureds. Thus, because the named insured
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