As the recent Target and Neiman Marcus data breaches have made clear, cyber security is one of the top threats to business today.  These threats can be devastating to companies - damaging customer confidence, the company brand, and the bottom line by increasing costs through remediation costs, lost revenues and customers, litigation, and fines.  Governments and customers are now holding businesses accountable for inadequate protection of customer data.  

It has been reported that 24% of data breaches occur in retail environments and restaurants.  And the average total cost to a US company of a data breach is approximately $5.4 million.  There are 46 different state statutory schemes and a host of federal regulations that apply to the collection and storage of data and the prevention and reporting of a breach.  These rules often contradict.  An interstate or internet retailer, however, must comply with the laws of the states in which a customer makes a purchase.
 
While consultants, IT experts, insurance and security firms can be integral parts of a Data Protection plan, they are only players on the team.  In fact, many experts are engaging in breach event information sharing to assist each other in identifying and defending against cyberthreats.  Cyber security concerns are now part of doing business, and general counsel and C-Suite executives must be ready to guide their companies through these complex issues.  

Prevention
Prevention is the first step to minimizing cyber security liability.  The following steps can help minimize the cost and likelihood of security breaches:   
• Security measures before a breach.  Studies have found that having an incident response plan, establishing a strong security infrastructure, and appointing a Chief Information Security Officer can lower the costs of a data breach by approximately 50%.  
 Cyber-security audits.  Businesses should conduct regular cyber-security audits and limit the access of sensitive data by third parties and employees.  
• Cyber-security insurance.  Businesses should review insurance policies to determine whether and to what extent they are covered for cyber-security threats.  
• Encryption.  If a data breach occurs, encryption can help minimize liability.  

Notification
If a data breach occurs, businesses must immediately determine whether they have notification obligations under federal or state law.  Congress has yet to enact comprehensive federal law governing notification in the private sector, so businesses must conduct a state- and industry-specific analysis.  The following are examples of notification obligations: 
• Health Insurance Portability and Accountability Act and Health Information Technology for Economic and Clinical Health Act.  HIPAA requires covered entities to protect against reasonably anticipated threats or hazards to security.  The HITECH Act requires covered entities and business associates to notify the individuals whose protected health information was accessed no later than 60 days after the breach was discovered.  If the breach affects more than 500 individuals, the law also requires notification within 60 days after the breach was discovered to the US Department of Health and Human Services and the media.  
• Gramm-Leach-Bliley Act.  This act requires financial institutions to publicize their privacy policies and establish internal safeguards and procedures to protect customer information.  Related guidelines require covered financial institutions to notify customers whose personal information has been subject to unauthorized access or use if misuse of the customer’s information has occurred or is reasonably possible, unless law enforcement determines that notification will interfere with a criminal investigation.  
• Securities & Exchange Commission.  The SEC has issued guidance stating that publicly traded companies should report certain instances of cyber incidents.   
• State law.  Currently, 46 states, the District of Columbia, Puerto Rico, and the Virgin Islands have enacted laws requiring notification of security breaches involving personal information.  

Potential Litigation
Businesses should be ready for litigation if a data breach occurs.  Potential claims by private parties and the government include: 
 State-law claims.  Businesses could face suits under individual states’ consumer protection laws, tort and contract law, fiduciary requirements, and other cyber security rules.   
• FTC Safeguards Rule.  The FTC has brought numerous enforcement actions to address whether businesses security systems are reasonable and appropriate to protect consumer information.  
• SEC Enforcement Actions.  The SEC’s Division of Corporation Finance has taken the position that public companies should disclose their risk of cyber incidents.  Failure to disclose cyber security breaches or risks could lead to actions on security anti-fraud provisions like Rule 10b-5 or books and records violations under Rule 13b2-2.  

Conclusion
A business’s cyber-security obligations are too complex to address in this blog.  Regardless, it is critical for businesses to be prepared.  In house counsel are invited to join Polsinelli attorney Leon Silver and Kevin Morgan of Grant Thornton at DRI’s 2014 Retail & Hospitality Litigation and Claims Management Seminar, May  15, 2014 in Chicago at the Westin Chicago River North Hotel for a presentation titled “Cybersecurity and Data Governance:  The 21st Century Legal Issue.”

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Nowadays everywhere you go, someone is watching.  Why?  Because surveillance cameras are in every store, restaurant, hotel and gas station around the country.  The primary purpose of these cameras may differ among the many industries that use them but one thing is certain, if a customer is injured, the surveillance footage will be an issue.  

Two scenarios that every industry and claims examiner must respond to on a regular basis are: (1) an attorney sends a letter demanding the preservation of footage after an incident; and (2) a customer incident occurs with no attorney involvement and a decision must be made if footage should be preserved, and if so, what footage. These issues typically arise very soon after a customer incident takes place because time is of the essence when dealing with surveillance footage. Most systems are digital and the amount of time you have to preserve the footage depends on the size of the DVR memory. Therefore, the first and one of the most important things a claims examiner must do is know the capabilities of your company’s surveillance system. Know how it works and most importantly, know the typical amount of time you have before footage is gone.  

Once you know how much time you have to ensure the preservation of footage, the next question is whether to preserve.  The short answer is, YES, PRESERVE! Surveillance footage can both hurt and help your defense but the failure to preserve, even when the incident cannot be seen, will almost always hurt. When it is not preserved, you run the risk of being hit with a spoliation claim or negative inference.

The next question is how much footage to preserve. The easiest way to answer this question is to know your jurisdiction and the judges who will rule on any motions about video preservation. It usually comes down to what is reasonable.  Is 60 days of footage reasonable?  Not in my opinion and not in the opinion of the judges of my jurisdiction. Typically what we have seen as “reasonable” is preserving a few hours before the incident and thirty minutes to an hour after the incident. If that is the amount of footage preserved, it would be unusual for a court to find that improper.  

Since the decision of how much footage to preserve is almost always made before a lawsuit is filed, it is important for counsel and claims examiners to discuss these issues ahead of time and have a standard policy of how much to preserve.  When opposing counsel asks for 60 days to be preserved, you should have standard language to respond to this demand so it can be properly and timely addressed and not create discovery problems down the road.  

Preservation issues with surveillance footage are here to stay because more cameras and more advanced systems are installed every day.  It is an issue that every retailer, claims examiner and defense attorney must handle and be well versed in or problems will arise.  You can learn a great deal more about this topic and how it impacts your practice and company at DRI’s 2014 Retail and Hospitality Litigation and Claims Management Seminar.  The seminar is taking place on May 15-16, 2014 in Chicago, Illinois at the Westin Chicago River North.  There will be many informative presentations impacting the retail and hospitality industries and you will not want to miss Thomas E. Best from The Home Depot and Suzanne M. Marasco from Hill Wallack, LLP give a revealing presentation on “Preserve Your CCTV or Else?” 



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Is There A Doctor in the House?

Posted on March 7, 2014 03:41 by Patrick J. Kearns


The Patient Protection and Affordable Care Act, often referred to as the “Affordable Care Act” (ACA), or perhaps more commonly “Obama Care,” has had no shortage of media coverage and controversy since it was signed into law nearly four years ago (Yes, it has been 4 years! President Obama signed the Act into law on March 23, 2010).  Several aspects of the ACA have been, for better or worse, more “visible” than others; such as the heavy focus on the “individual mandate,” i.e. the requirement that uninsured citizens obtain health insurance or pay a penalty; the impact on employers and small businesses; and the more recent website debacle where many people seeking to sign up for health insurance on the newly created exchanges were unable to do so due to technical issues with the ACA’s www.healthcare.gov website. 

One of the less discussed issues with the ACA however, is the potential for a massive provider shortage.  At its basic level, one of the primary purposes of the ACA is to increase the number of insured Americans. Indeed, according to various estimates, the implementation of the ACA is anticipated to provide insurance to 25-30 million additional individuals who would otherwise not be insured: “[T]he Affordable Care Act will also ensure that every American can access high-quality, affordable coverage, providing health insurance to nearly 30 million Americans who would otherwise be uninsured.” (Quoted from 2014 Funding Highlights bulletin published on www.whitehouse.gov). Coupled with provisions providing for free or reduced cost annual exams; greater Medicare coverage; increased coverage for younger adults; and increased coverage for preventative care and testing such as mammograms and colonoscopies; that means more insured people utilizing more health care services. Consequently, the question arises of whether we have enough physicians and providers to administer the increased health care demands?  

The Obama administration has acknowledged this potential and recently proposed a Fiscal Year 2015 Budget for the Department of Health and Human Services which attempts to address this contingency, at least in part. According to the HHS’s “Fiscal Year 2015 Budget in Brief” “[t]he Budget makes new and strategic investments in our nation’s health care workforce to ensure rural communities and other underserved populations have access to doctors and other providers. In total, $14.6 billion will be invested in three key initiatives: $4 billion in expanded funding for the National Health Service Corps, $5.2 billion for a new Targeted Support for Graduate Medical Education program, and $5.4 billion for enhanced Medicaid reimbursements for primary care. (U.S. Dept. of HHS “Fiscal Year 2015 Budget in Brief”; http://www.hhs.gov/budget/fy2015/fy-2015-budget-in-brief.pdf).

While the long-term idea behind the ACA may be to reduce health care costs and the need for excessive or increasing health care services (i.e. an insured population is presumably healthier and will therefore require less health care), will we have enough physicians, nurses, and other providers necessary to get us healthier in the short term? 

The full impact of the Affordable Care Act, positive or negative, remains to be seen. You can learn a great deal more about the Affordable Care Act, the difficulties with its implementation, and its impact on you and your practice, at DRI’s 2014 Medical Liability & Health Care Law Seminar, taking place in Las Vegas on March 20–21, 2014 at the Cosmopolitan Hotel.  Among many top-notch presentations at this year’s seminar you will not want to miss Kimber Lantry, Executive Vice President for AXIS Insurance’s Health Care Unit, give a fascinating presentation on “The Unintended Consequences of the Affordable Care Act.”

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“Diversity” is a concept at center stage in today’s ever changing world. And, all of us have heard or used the phrase “be politically correct.” Diversity can be visually obvious such as age, gender, and race. But, there are many facets of diversity that are not visual such as religion, politics, sexual preference, etc. And, even if diversity is totally obvious, oft times we simply don’t know what to do with diversity! Do we avoid eye contact, or address it head on?  As attorneys, how do we tap into the power of diversity to make us better people, counselors, colleagues and litigators? None of us want to be the next Paula Dean or Duck Dynasty patriarch!  As lawyers what do we need to know about diversity and trial tactics to provide our clients with the best defense? In a medical case it’s a given that throughout the case we will encounter many people with who look different than us, practice different religions, come from different cultures, and so on. From the patients, to the admissions clerk, to the nursing staff, to doctors, clients and jurors, the various human differences are mind boggling. How do we go from “tiptoeing” around our differences to weaving diversity into our cases to achieve winning strategies? 

Learn more about how you can address diversity issues in your practice and during trial at DRI’s Medical Liability and Health Care Law Seminar, taking place at the Cosmopolitan Hotel in Las Vegas March 20–21, 2014. You will not want to miss the presentation on “Diversity in the Courtroom: Putting the Odds in Your Favor.” Click here to register for this program. 

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Affordable Care Act—Pros and Cons

Posted on December 17, 2013 08:28 by Kenneth M. Battle

Aside from the political propaganda that has permeated our collective consciousness since its inception, what do we really understand about the Affordable Care Act?  The overall theme and purpose for the Act is making health care affordable for the masses, hence the name.  Does the Act accomplish its set purpose and goals?  Will the Act have side effects that forever change the landscape of health care?  How will the Act impact medical liability and health care law, if at all?

Some of the major pros, if you will, include: 1) access to affordable, quality health insurance for tens of millions of people; 2) prevention of dropping people from health coverage when they get sick or make an honest mistake on their application for coverage; 3) prevention of denying coverage to those we are already sick; and 4) young adults are allowed to stay on their parents health care plan until they reach the age of 26.  There are numerous others, but for the sake of discussion I picked a few to list here.

Some of the major cons include: 1) higher taxes for the wealthy, in order to help pay for implementation of the Act; 2) insurance companies are forced to provide coverage for sick people, which likely increases health care costs for everyone else; 3) there’s a mandate that forces individuals to obtain health care coverage or potential pay a fee for failure to do so; and 4) while the Affordable Care Act focuses heavily on providing coverage for all, the by-product is an increase in the cost of care.

What are your thoughts on ways in which the Act will affect our profession, and our practice areas?  

Learn more about the Affordable Care Act at DRI’s 2014 Medical and Health Care Liability Seminar, March 20-21, at the Cosmopolitan Hotel in Las Vegas. With two days of cutting edge instruction on medical and legal topics, the seminar will include a presentation focused on “The Unintended Consequences of the Affordable Care Act”. Register today

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Settlement negotiations can be tricky and knowing what you can and cannot ethically say can mean the difference between a valid and invalid settlement. According to a 2009 survey by Professor Andrea Schneider, director of the Dispute Resolution Program at Marquette University Law School, a sizable minority of litigation attorneys incorrectly answered that they do not need to correctly respond to a direct question about settlement authority. See Art Hinshaw, Peter Reilly & Andrea Kupfer Schneider, Attorneys and Negotiation Ethics: A Material Misunderstanding, 29 Negotiation Journal 265, 269 (2013).  According to the survey, 38.14% of the ninety-seven (97) participating litigation attorneys incorrectly responded that they did not have to admit the amount of their settlement authority if directly asked. Id. at 269-270. Pursuant to the American Bar Association’s Rules on Professional Responsibility, an attorney’s valuation of a claim and a party’s settlement intentions are enumerated exceptions to what constitutes a material statement in negotiations. Id. at 268. However, the specific limits of authority that a client has given a lawyer to settle a case is considered a material fact. Id. Therefore, an attorney must truthfully respond when directly asked about his or her settlement authority.

The survey also found that 22.9% of the participants incorrectly responded that you do not need to correct an opponent’s misimpression of a material fact based on an erroneous statement. Id. at 275.  According to the RULES OF PROFESSIONAL RESPONSIBILITY, an omission of a material fact can be unethical in certain cases. Id. at 272.  Most importantly, the law of fraud for both tort and contract law requires correction of a misimpression. Id. (Citing RESTATEMENT (SECOND) TORTS, §551(2)(e) and comment l 1977; RESTATEMENT (SECOND) CONTRACTS, §161(b) 1981). Although attorneys generally do not have a duty to correct a misunderstanding of the facts by their opposing counsel, they do if it is based on an erroneous statement.

Wondering what other ethical dilemmas you may encounter on the road to resolution? Consider attending the 2014 DRI Women in the Law Seminar, Clients and Counsel: Partnering for Success Seminar, which will be held February 5-7, 2014, at the FireSky resort in Scottsdale, Arizona.  The seminar includes an interactive mediation/negotiation workshop for in-house and outside counsel.  Chrys A. Martin of Davis Wright Tremaine LLP will explore the ethical issues that need to be foremost in the mind for both in-house and outside counsel from the time negotiations begin until the settlement agreement is fully executed. Click here to register today. 

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Two Nations Separated By a Common Language

Posted on November 18, 2013 03:21 by Ashley Parrish

A famous Englishman once said, “America and Britain are two nations separated by a common language.” Was it George Bernard Shaw? Or was it Oscar Wilde? English literature enthusiasts have not settled the issue of the identity of the person to whom the quote is attributable. However, truer words have not been spoken, especially when it comes to dealing with insurance terminology.

Perhaps you think a “prop” is something you would find on the set of the movie studio.  Maybe a "slip" is where you have your boat parked at the Marina.  The fact of the matter is the way we use insurance terms in the United States differs greatly from the way they are used in the United Kingdom. Anyone whose job involves procuring insurance from the London market (especially from underwriters at Lloyd’s), or defending those who do the same, must be familiar with various insurance terms as they are used in the United Kingdom.  Even skilled insurance professionals and attorneys may be confused by the wordings used in the London market. 

Much of this confusion may stem from the developmental history of London insurance policies. Lloyd’s of London is known for its marine insurance policies, and the Lloyd's market can trace its origins back to Lloyd's Coffee House in the late 17th century. Many marine insurance policies still use terms that seem appropriate for covering the voyage of a schooner sailing from Portsmouth to Rotterdam. In other cases, it may just be that we use different terms to describe the same thing. For example, a backpack in the States becomes a rucksack in the UK. Additionally, the structure of Lloyd’s of London is different from any other insurance market in the world and the way insurance is regulated is also quite different.  

Lloyd's of London is the leading market for specialist insurance in the world. Insurance professionals who need to place complex and specialized risks must be familiar with London market practice and terminology. Further, those of us involved in defending these same insurance producers must be familiar with the vernacular and intricacies of the British insurance market.   On December 12th Kevin Ottley of 5Star Professional Programs and I will be presenting “Interaction Between United States and London Brokers” at the DRI Professional Liability Seminar, December 12–13 in New York.  We will address the differences one may encounter in the UK insurance market and provide practice pointers in the event you are confronted with providing a defense for an insurance professional involved in procuring a policy placed in London.  I hope you can join us. Click here to register. 


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The Dreadful World of Sexual Torts

Posted on October 25, 2013 08:50 by Mark A. Fahleson


Whether as defense counsel or as a board member of a nonprofit, at some point many of us have dealt with allegations of sexual misconduct. These situations are often sordid, complex and emotionally difficult.  No matter your area of expertise, it’s prudent to have an understanding of the issues surrounding claims of assault, molestation and unwelcome sexual conduct, especially how to prevent such claims and respond when they arise.  

On November 13-15, DRI will be hosting its Sexual Torts seminar in San Diego.  The program is top-notch, featuring nationally-known attorney Mark Geragos and Penn State victims’ advocate Dora McQuaid.  This seminar is designed to educate defense counsel, insurance professionals, in-house litigation specialists and others involved in the evaluation and defense of sexual torts actions.  

Please plan on attending. For more information, click here

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INTRODUCTION

On June 18, 2013, the West Virginia Supreme Court of Appeals issued its opinion in Cherrington v. Erie Insurance Property and Casualty Co., 745 S.E.2d 508 (W. Va. June 18, 2013).  The opinion expressly reversed previous West Virginia jurisprudence through the Court’s holding that defective workmanship causing bodily injury or property damage is an “occurrence” under a commercial general liability (CGL) insurance policy.  

FACTUAL HISTORY

The case originated in 2004 when the underlying plaintiff entered into a “cost plus” contract with a general contractor (“contractor”) for the construction of a home, which included landscaping and interior furnishing.  Several subcontractors were also involved in construction, and their work formed the basis of plaintiff’s damages.  During the construction process, disputes arose between plaintiff and the contractor concerning whether landscaping was included within the contract between the parties.  Plaintiff also felt that she was overcharged for the interior furnishings for the house.  Most importantly, plaintiff alleged that she observed defects in the house following its completion, including an uneven concrete floor, water infiltration, a sagging support beam and cracks in drywall.  

Plaintiff brought suit against the contractor and subcontractors in 2006.  Plaintiff’s complaint and amended complaint alleged that the contractor was negligent through the construction of her home through the following: (1) altering the design; (2) negligently pouring and finishing the concrete floor; (3) finishing and painting the house; (4) placing and securing the foundation.  Plaintiff also alleged that the contractor breached a fiduciary duty through its failure to secure materials and furnishings for the project within the completed contract price.  Plaintiff alleged damages through the contractor’s misrepresentations and negligent acts, which resulted in a reduction in her home’s fair market value.  Plaintiff also alleged emotional distress as a result of the issues with her home.  

Following the filing of plaintiff’s lawsuit, the contractor requested its carrier to provide coverage and a defense through a CGL policy. The carrier denied coverage and a duty to defend.  The contractor subsequently filed a third-party complaint against the carrier seeking a declaration of its rights under the CGL policy. The carrier subsequently filed a motion for summary judgment, contending that the subject policy did not provide coverage for the claims asserted by plaintiff and that a defense was not owed to the contractor.  The trial court granted the carrier’s motion for summary judgment, finding that contractor’s CGL policy did provide coverage for “bodily injury” or “property damage” but plaintiff’s claims of emotional distress without physical manifestation did not constitute a “bodily injury” under the policy’s definition of that term.  The trial court also found that plaintiff failed to establish covered property damage due to the fact that the damages she alleged in her complaint were for economic losses for diminution in value or home or excess charges she was required to pay.  

Importantly, the trial court further found that plaintiff had not established that an “occurrence” or “accident” had caused damages she had sustained because faulty workmanship, standing alone, is not sufficient to give rise to an “occurrence.”  See, Cherrington, at 514.  This finding was premised on the previous holding of West Virginia Court of Appeals in Corder v. William W. Smith Excavating Co., 210 W. Va. 110, 556 S.E.2d 77 (2001); See also, State v. Bancorp, Inc. v. United States Fid. & Guar. Ins. Co., 199 W. Va. 99, 483 S.E.2d 228 (1997). The trial court held that even if plaintiff had sustained covered losses, there was not an “occurrence” pursuant to the contractor’s CGL policy, which would trigger coverage.  Finally, the trial court found that even if it was assumed that coverage existed under CGL policy, coverage would be barred pursuant to the policy’s exclusions.  Citing North American Precast, Inc. v. General Cas. Co. of Wisconsin, 413 Fed. Appx. 574 (4th Cir. 2011) (per curiam) and Groves v. Doe, 333 F.Supp.2d 568 (N.D. W. Va. 2004), the trial court also found that exclusion “M” (“Damage to Impaired Property or Property Not Physically Injured”) would bar coverage because it applies “irrespective of the existence of subcontractors.”  Cherringer, supra., at 515. 

On appeal, the West Virginia Supreme Court of Appeals considered the following assignments of error by the trial court: (1) there was no property damage caused by an “occurrence” under the contractor’s CGL policy; and (2) the CGL policy’s exclusions for “your work” and “impaired property or property not physically injured” precluded coverage.  On appeal, petitioners also advanced the argument that the trial court had refused to interpret the policies consistent with the reasonable expectations of the insured.  

ANALYSIS

The Court’s analysis started by recognizing that it had previously addressed the issue presented on appeal: is defective workmanship a covered “occurrence” under the provisions of a CGL policy of insurance?  Citing Syl. Pt. 2, Erie Insurance Property and Casualty Co. v. Pioneer Home Improvement, Inc., 206 W. Va. 506, 526 S.E.2d 28 (1999), the Court recited its previous holding: 

A lawsuit commenced by a building owner against a building contractor alleging damages caused by faulty workmanship is not within the coverage provided by the contractor's general liability policy of insurance unless such coverage is specifically included in the insurance policy. A commercial general liability policy insurer has no duty to defend a contractor in a lawsuit nor to indemnify a contractor for sums paid to settle the lawsuit or to satisfy a judgment unless the insurance policy specifically requires the insurer to do so.

In its decision of Corder, supra., the Court further found: 

Commercial general liability policies are not designed to cover poor workmanship. Poor workmanship, standing alone, does not constitute an "occurrence" under the standard policy definition of this term as an "accident including continuous or repeated exposure to substantially the same general harmful conditions."

Id., at Syl. Pt. 2.   The final decision by the West Virginia Supreme Court of Appeals within its trilogy of cases addressing coverage for defective workmanship claims was Webster County Solid Waste Authority v. Brackenrich and Associates, Inc. 217 W. Va. 304, 617 S.E.2d 851 (2005). 

The Court then noted that it was “acutely” aware that after rendering the above referenced decisions, many courts considered the same issues.  The Court noted that a majority of other states reached the contrary conclusion through legislative action or judicial decision.  Cherringer, at 517.  Recognizing a “definite trend” in the law that had arisen since its decisions in the late 1990’s and early-to-mid-2000’s, the Court cited to a multitude of decisions from other jurisdictions.  Ultimately, after citing to the holdings throughout the United States that have addressed this issue, the Court held that a defective workmanship claim constitutes an “occurrence” under a CGL policy of insurance.  Id., at 520.  

The Court formally held that “[i]n order for a claim to be covered by the subject CGL policy, it must evidence bodily injury or property damage that has been caused by an ‘occurrence.’”  Id. Citing the definition of “occurrence” to mean “an accident” the Court noted that the policy did not provide a definition for “accident.”  Through a previous holding, the Court defined accident to exclude damages or injuries that were “deliberate, intentional, expected, desired or foreseen” by the insured.  Id., citing Syl. Pt. 1, Casualty Co. v. Westfield Insurance Co., 217 W. Va. 250, 617 S.E.2d 797 (2005). 

Evidence produced in discovery indicated that the damage to plaintiff’s residence was caused by subcontractors of the primary contractor.  The Court found that the policy’s express language provided coverage for the acts of subcontractors, contained within policy’s Exclusion “L”, by excepting it from the “your work” exclusion: 

This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. 

The Court’s treatment of the exclusions in the policy deserves special attention because it could significantly mitigate the impact of the Court’s finding concerning what constitutes an “occurrence.”  Examining Exclusion “L” (“Property damage” to “your work”), the Court noted that Exclusion “L” excludes coverage for the work of the contractor but does not operate to preclude coverage under the facts of the case for work performed by the subcontractors.  Id., at 524. Consequently, if the contractor was alleged to have completed the defective work, coverage would have likely been excluded irrespective of whether the defective work constituted an occurrence under the policy. 

Under Exclusion “M” (excluding coverage for (1) a shortcoming in “your product” or “your work” and (2) an issue arising from the insured’s or insured’s agent’s failure to perform contractual obligations), the Court again relied on the fact that the subcontractor performed a significant amount of the work which was defective.  The Court found that Exclusion “M” would act to preclude coverage for the contractor based on the damages caused by the subcontractors.  However, the Court further found that Exclusions “L” and “M” were in conflict and applying Exclusion “M” to preclude coverage for the subcontractor’s work would negate the coverage afforded for subcontractor work in Exclusion “L.”  Id., at 525-526.  The Court found that it was not reasonable to construe two policy exclusions according to their plain language when the operative effect of this exercise results in such an incongruous result.  Id., citing Syl. Pt. 2, D’Annunzio v. Security –Connecticut Life Ins. Co., 186 W. Va. 39, 410 S.E.2d 275 (1991).   The Court disregarded the exclusion contained in Exclusion “M”.  The Court briefly noted that the exclusion for “breach of contract” related actions in Exclusion “M” was also not applicable.   Finally, the Court briefly analyzed the trial court’s conclusory finding that Exclusion N (recall of products) also operated to exclude coverage.  The Court found no support for this finding by the trial court.  

The Court’s opinion also addressed the trial court’s grant of summary judgment in favor of the same carrier in a claim for coverage and defense by a subcontractor/agent (subcontractor) of the contractor pursuant to the subcontractor’s homeowners and umbrella policies of insurance.  Cherrington, supra, at 528. The Supreme Court of Appeals upheld the award of summary judgment in favor the carrier in this instance.  However, the Court did find, consistent with its handling of the CGL policy that the claims against the subcontractor were “occurrences” under the homeowner’s and umbrella policies.  The Court based its affirmation of the denial of coverage based on the business pursuit’s exclusion to the policies.

The effects of the Cherrington decision will likely continue to be felt for the foreseeable future in relation to the interpretation of CGL policies in West Virginia and in other jurisdictions.  Several critical issues will likely need to be addressed in future cases, including the issue of how the West Virginia Supreme Court of Appeals handles the situation when the allegations of defective workmanship are only directed towards work completed by the general contractor.  

Members of DRI’s Insurance Law Committee recognize that they must always be aware of new changes involving insurance coverage.  The recent West Virginia Supreme Court of Appeals decision discussed above demonstrates the importance of membership with DRI and the value that DRI’s seminars provide.  For more information about how the Cherrington decision could affect future coverage decisions in other jurisdictions, please consider attending the DRI’s Insurance Coverage and Practice Symposium on December 12th and 13th, 2013 in New York City.  The program will offer an outstanding opportunity for practitioners to learn about the latest decisions in coverage litigation and how they will shape insurance practice for the foreseeable future.  The Insurance Coverage and Practice Symposium will also present an outstanding opportunity to network with colleagues.  

For more information, please click here. See you in New York!

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The Art of Negotiation

Posted on October 8, 2013 03:33 by Sarah E. Lovequist

There have been a number of attempts in the past 15 to 20 years to significantly increase the use of alternative dispute resolution (ADR), particularly mediation, by parties to civil and commercial disputes. Several law schools now offer comprehensive ADR courses, and courts regularly certify mediators to help facilitate expedited case resolution. Likewise, judges presiding over class action or mass tort/MDL litigations regularly schedule mediation proceedings at or before the initial case management conference.

According to BTI's "Litigation Outlook 2014" survey, 60.7 percent of clients expect to see a jump in litigation matters, yet resolution rates are expected to reach nearly 40 percent. These statistics, coupled with findings from AlixPartners' "Litigation and Corporate Compliance Survey," that 84 percent of corporate legal departments are trying several ways to lower legal costs, including resorting to alternative dispute resolution (ADR), indicate that counsel should quickly hone mediation and negotiation skills.
Short of enrolling in a class at one's local law school or signing up for a one hour CLE on the topic, a practicing attorney has several avenues to take to improve her ADR skills. One such avenue is attending the 2014 DRI Women in the Law Seminar to take advantage of the Seminar's Mediation/Negotiation Workshop. This interactive Workshop includes sessions on both ADR and the art of negotiating, and is designed for both in-house and outside counsel. In addition to this groundbreaking Workshop, the Seminar as a whole promises to offer both practical and networking sessions aimed at enhancing the practicing attorney's total being. 

The 2014 Women in the Law Seminar will be held February 5-7, 2014, at the FireSky resort in Scottsdale, Arizona. Register today by visiting here



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