Artificial Intelligence: The New Frontier for Assessing Insurance Coverage

U.S. and international businesses are accelerating their use of artificial intelligence (AI)[1] at an unprecedented rate. The second AI Index Report published in December 2018 by a Stanford University-led group concluded that “AI activity is increasing nearly everywhere and technological performance is improving across the board.” The AI Index Report further found that “the number of AI startups has seen exponential growth” and that “[f]rom 2013 to 2017, AI VC [venture capital] funding increased 350%.” Growth in this area will continue and will infiltrate every imaginable industry: from assisting doctors in detecting lung cancer to the use of self-driving trucks to deliver mail, AI is the New Frontier.

As businesses race to implement AI solutions and processes that may improve efficiency and lower costs, AI will also create new and ever-evolving risks. And when a company’s AI fails to perform as expected, or AI is breached or manipulated in a cyberattack, new and thorny questions about how to apportion liability for resulting losses emerge. The question only becomes thornier when it is a company’s supplier, contractor, or service provider that experiences a breach or failure.

It will be difficult to apply traditional tort liability schemes to AI-related loss scenarios, but there is no doubt that AI will change the way we look at the insurability of losses. Nonetheless, for businesses that use, or are considering using, AI, either directly or indirectly, there are concrete steps those companies can take to enhance their insurance and risk management programs to mitigate against the threat of AI-related loss. Although coverage needs vary from company to company and should be assessed on an individual basis, a non-exhaustive list of threshold issues to consider are as follows:

Self-insured retentions are not a windfall for excess insurers looking to avoid coverage

By David E. Weiss, Cristina Shea and Connor O'Carroll on 12 March 2019 Posted in Insurance Coverage, Insurance General

In Deere & Co. v. Allstate Ins. Co., 2019 WL 912151 (Cal. Ct. App. Feb. 25, 2019), a California Court of Appeal recently held that an insured’s self-insured retention (SIR)[1] was considered part of the underlying limit of liability such that it need not be satisfied again and again just to access excess insurance policies. This case represents another example of the California appellate courts shooting down an insurance company’s attempt to overreach. Nonetheless, insurance companies will continue to look for ways to avoid providing the coverage they contracted to provide, and policyholders must always be vigilant.

This particular dispute arose over insurance coverage for several asbestos personal injury claims made against manufacturer Deere & Company arising from products it manufactured from 1958 to 1986. During that period, Deere had coverage in place via a series of first-layer umbrella policies[2] for personal injury claims; several layers of excess insurance provided additional coverage above the limits of the first-layer umbrella policies. In all, there were 49 policies at issue representing $200 million in policy limits. In all of its first-layer umbrella polices, Deere contracted to pay an SIR before the coverage limits would be reached. Deere’s excess policies “followed form” to the first-layer policies, except the excess policies had different limits of liability. Continue Reading

Lightening the load: New York Appellate Division rejects heightened pleading standard for policyholders seeking Bi-Economy Market consequential damages

By Ann Kramer, Paul Breene, John Berringer, Rich Lewis and Anthony B. Crawford on 1 February 2019 Posted in Insurance Coverage, Insurance General, Insurance News of Note

In a recent unanimous decision, the Appellate Division First Department provided clarity on the pleading requirements for policyholders seeking special or consequential damages allowed under the landmark decision of Bi-Economy Market v. Harleysville Insurance Company of New York, 856 N.Y.S.2d 505 (N.Y., Feb. 19, 2008). Under Bi-Economy, policyholders may seek special or consequential damages resulting from an insurance company’s failure to provide coverage if such damages were foreseen or should have been foreseen when the insurance contract was made. Id. at 508. In its prior ruling in Panasia Estates v. Hudson Insurance Company, the First Department noted that the “reference to such damages as ‘special’ in Bi-Economy Mkt. … was not intended to establish a requirement of specificity in pleading.” 889 N.Y.S.2d 452, 453 (N.Y.A.D. 1 Dept., Dec. 15, 2009). The ruling, however, left open the question of what pleading requirements policyholders had to meet in order to state a claim for special damages, a question that it recently answered in D.K. Property v. National Union Fire Insurance Company of Pittsburgh, PA, 2019 WL 237454 (N.Y.A.D. 1 Dept., Jan. 17, 2019).

Federal court’s E-Cig decision provides cautionary tale

By Mike Sampson on 27 December 2018 Posted in Commercial General Liability, Insurance Coverage, Insurance General, Insurance News of Note

Every policyholder in every industry should make sure that it in fact has obtained insurance covering the actual, specific risks presented by its line of business.

That point is the critical one driven home by the U.S. District Court for the Central District of California in United Specialty Insurance Company v. E-Cig Vapor Emporium, LLC, No. EDCV 18-0002 JGB (SHKx), 2018 WL 5098859 (C.D. Cal. Oct. 15, 2018). While applicable to any business in any industry, this lesson is particularly valuable to businesses in certain newer industries – such as the vaping, e-cigarette, and cannabis industries – where the market for insurance may be more limited and the coverages offered may be more restrictive.

Federal crop insurance grows: Hemp to be covered

By Mike Sampson and Adam D. Brownrout on 14 December 2018 Posted in Insurance Coverage, Insurance General, Insurance News of Note

Federal crop insurance will soon be available for hemp. The federal Agriculture Improvement Act (H.R. 2) (the Act) – which has been approved by both houses of Congress and is now just awaiting the president’s signature – will amend the Federal Crop Insurance Act, 7 U.S.C. §1501, et seq., so that hemp will be a covered “agricultural commodity.”

Federal crop insurance is available only for certain enumerated agricultural commodities, such as wheat, cotton, flax, and corn. Historically, cannabis, marijuana, and/or hemp have not been included among those commodities. That is about to change, at least in part. The Act, known popularly as the 2018 Farm Bill (the Farm Bill), will amend the definition of “agricultural commodity.” Pursuant to Section 11119 of the Farm Bill, the term “hemp” will be added into 7 U.S.C. § 1518 (“‘Agricultural commodity’ defined”), right between “native grass” and “aquacultural species.”

Tangible property doesn’t have to be physically lost to find coverage

By David E. Weiss and Connor O'Carroll on 8 November 2018 Posted in Commercial General Liability, Insurance General

A California Court of Appeal recently held that the alleged loss of use of a premises as a nightclub qualified as “property damage” under a general liability insurance policy. Thee Sombrero, Inc. v. Scottsdale Ins. Co., 2018 WL 5292072 (Cal. Ct. App. Oct. 25, 2018).

Thee Sombrero, Inc. (Sombrero) owned and operated a nightclub in Colton, CA. After a fatal shooting at the club, city officials revoked Sombrero’s use permit and made it so the premises could only be used as a banquet hall. Sombrero sued its private security company, Crime Enforcement Services (CES), claiming that its subpar security caused the shooting and cost Sombrero its ability to run a nightclub on its property.

Sombrero alleged that the property was worth $2,769,231 as a nightclub and only $1,846,153 as a banquet hall. In 2012, Sombrero secured a default judgment against CES for $923,078 – the difference in value between the nightclub and banquet hall.

California Supreme Court rules broadly in favor of insureds

By Kerry Roberson and David E. Weiss on 11 June 2018 Posted in Commercial General Liability, Employment Practices Liability, Insurance Coverage, Insurance General

On Monday, June 4, 2018, the California Supreme Court ruled that an insurance company must provide liability coverage to its corporate insured against claims of negligent hiring, retention, and supervision of its employee, who allegedly sexually assaulted a 13-year-old child. The case is Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc., Case No. S236765 (June 4, 2018). This decision is “of exceptional importance to injured parties, employers, and insurance companies doing business in California,” wrote the U.S. Court of Appeals for the Ninth Circuit, in an order certifying the issue to the California Supreme Court.

In 2002, Ledesma & Meyer Construction Co. (L&M) entered into a contract with the San Bernadino School District for a construction project at a local middle school. L&M hired Darold Hecht to work on the project. In 2010, a 13-year-old student at the school (Jane Doe), filed suit asserting numerous claims against L&M, alleging that she was sexually abused by Hecht. One of Doe’s claims against L&M alleged negligent hiring, retention, and supervision of Hecht. L&M’s insurer, Liberty Surplus Insurance Corporation, agreed to defend L&M under a reservation of rights.

CannaBeware: Make sure insurance actually covers the risks your business faces

By Mike Sampson on 23 May 2018 Posted in Commercial General Liability, Corporate and Transactional Insurance Coverage, D&O, E&O, Professional Liability, Insurance Coverage, Insurance General, Insurance News of Note, Property Damage & Business Interruption

It should go without saying that when a business purchases any insurance policy – including, but not limited to, a commercial general liability (CGL) insurance policy – the business expects the policy to provide coverage for its line of business and the specific risks it faces. Cannabis-related businesses are no different. However, they must be especially vigilant to make sure that what an insurance company gives with “one hand” (the coverage grant), it does not take away with the “other” (an exclusion). Remarkably, marijuana-related exclusions may still be found in CGL and other insurance policies marketed and sold to businesses in the cannabis industry.

To better illustrate the concern, consider the following non-cannabis-related scenario: When purchasing insurance, a swimming pool manufacturer would, of course, want to make sure that its CGL policy will provide coverage in the event that a third-party sues the manufacturer for bodily injury allegedly arising out of the use of one of its swimming pools. Conversely, that manufacturer would not want to purchase a CGL policy that excludes coverage for any bodily injury arising out of the use of its swimming pools. While, in that latter situation, the CGL policy may still provide the manufacturer some coverage for certain, limited types of claims, the policy would not provide the manufacturer coverage for the real risks that it faces — that is, those arising out of the use of its swimming pools. Such coverage, therefore, would essentially be illusory coverage. In other words, it would be basically no coverage at all.

Final Mass. “adult-use” marijuana regulations require “Marijuana Establishments” to have liability insurance

By Mike Sampson and Kristy L. Keiser on 16 March 2018 Posted in Commercial General Liability, Insurance Coverage, Insurance General, Insurance News of Note

As part of its “adult-use” marijuana regulations, which are expected to take effect next week, the Commonwealth of Massachusetts will require that “Marijuana Establishments” – which include cultivators, manufacturers, and retailers – procure commercial liability insurance in established amounts. Massachusetts’ new regulations are the most recent reminder that cannabis-related businesses must be aware of state regulations and their insurance requirements.

On March 9, 2018, Massachusetts’ Cannabis Control Commission (the “Commission”) “filed its finalized regulations” intended to govern the Commonwealth’s adult-use marijuana industry with the Commonwealth’s Secretary of State. The “regulations are not yet in effect. … The regulations will become effective when published in the Massachusetts Register.” They “are on track to be published on March 23, 2018.”

Ten important steps a cannabusiness should consider when purchasing insurance

By Mike Sampson on 13 March 2018 Posted in Insurance Coverage, Insurance General

Purchasing insurance for a cannabusiness can feel like a daunting task, but it does not have to be one.

In addition to grappling with many of the same issues and questions that any business confronts when seeking insurance, a cannabusiness encounters certain additional, unique challenges due to the industry in which it operates. That is no reason to panic, however. And, it is certainly no reason to avoid purchasing insurance.

There are a number of steps that a cannabusiness – or, really, any business – can take to maximize the likelihood that the insurance-procurement process will be smooth and successful. In particular, when purchasing insurance, a cannabusiness should consider the following 10 steps: