I attended a large legal conference (DRI’s Insurance Coverage and Practice Symposium) in person last week for the first time since the pandemic, and not only learned a lot, but had a great time (shout out in particular to the kitchen staff at Capital Grill and props to the bartender at the Whitby Bar, among others). In olden days, I would sometimes live tweet from conferences, both to share what I learned in real time and also to lock into my memory what I was learning but I wasn’t inclined to do that at this conference, since if twitter isn’t good enough for Elton John, it’s probably not good enough for my random thoughts on legal issues either. So instead, I captured in real time the same thoughts I would otherwise have tweeted out during the conference, and turned them into this blog post. I haven’t tried this approach to sharing information from a multi-day conference before but let’s see if it works.
Top ten lists are a mainstay at these types of conferences, and Matt Foy of Gordon Rees gave a presentation on the top ten insurance law decisions of the past year. Several were of particular interest, and at the risk of giving short shrift to the depth of Matt’s discussion of the cases (remembering, of course, that in years past my comments on these cases would have each been no more than 140 characters, so the following comments have the depth of “All Quiet on the Western Front” in comparison to what I would have written in the past), I comment on them briefly here.
First, most who practice in this area likely already know that courts have generally rejected claims seeking coverage for Covid related losses by businesses. Matt reviewed some of the most important decisions to this effect to date, and pointed out five recent state Supreme Court rulings to that effect, including in my home state of Massachusetts. He also quantified the extent to which these disputes are running in favor of insurers, with over 80% of such claims against insurers being dismissed. Second, I took particular note of his discussion of new case law concerning whether privacy class actions are covered by policy language covering publication of material that violates a person’s right of privacy. Although it seems like just yesterday, the first article I published was approximately thirty years ago concerning “The Expanding Scope of Advertising Injury Coverage” and addressed similar attempts to expand coverage under these types of coverage grants. The more things change, I guess. . .
Third, Matt highlighted a decision concerning whether claims involving cyber viruses are precluded from coverage by war or hostile act exclusions, which was particularly interesting because these types of exclusions always and only seem to arise under particularly interesting fact patterns. And finally with regard to his list of cases, Matt noted that on limited case law to date, the statutory violation exclusion in policies has not been found to bar coverage of biometric litigation in which the insured is claimed to have violated statutes precluding distribution of biometric data. This one caught my eye because one of the many things I have learned in the past three decades is that the statutory violation exclusion seldom gets applied as broadly as its language would seem to suggest.
I also greatly enjoyed the presentation by Ford Stephens and Alex Henlin about jurisdictional and similar issues in prosecuting declaratory judgment actions in insurance coverage disputes. The biggest takeaway for me, as I shared with Morrison Mahoney’s Larry Slotnick, who had the luck (good or bad, you make the call) of sitting next to me and thus being subjected to my commentary, was the reminder that insurance coverage litigation is a practice area for civil procedure buffs, and that young lawyers should probably be told at the start of their careers that if they didn’t geek out about first year civ pro in law school, this probably isn’t the practice area for them.
I likewise took a lot away from the bad faith presentation on the last morning of the conference by Matt Lavisky of Tampa’s Butler Weihmuller Katz and Aaron Singer of The Hartford. Having spoken at a number of conferences over the years, I can say with confidence that it’s not the easiest thing in the world to entertain a large crowd of lawyers at 9 in the morning on the last day of a conference, but they pulled it off with ease (with a little help from an entertaining mock – at least I hope it was mock – version of a televised lawyer advertisement). I found their presentation a valuable reminder of the extent to which, regardless of jurisdiction, gamesmanship, intended to set up an insurer, is so often central to bad faith litigation, rather than the merits and value of the insured’s claim itself.
Finally, on a more serious note, Kathy Maus and Ilana Olman gave a very informative, if very sobering, presentation on the insurance and settlement issues arising out of the catastrophic Surfside Condominium collapse. I note that they emphasized the point that, because of various aspects of the case, the true cause of the collapse may never be determined. That said, though, their presentation took me back to the several years I spent as an A&E (architects and engineer, not arts and entertainment, which likely would have been a lot more fun) coverage lawyer, and the extent to which so many significant construction loss claims seemed to arise, at root, from a race to the bottom with regard to maximizing profit or reducing regulatory oversight; I certainly have no basis to know whether this was the case with regard to the Surfside collapse, but Kathy and Ilana’s presentation certainly reinforced why vigilance against that dynamic is always important in the construction context.