March 29, 2016

#5 Insurance Issue for Non-Insurance Lawyers: Cyber and Intellectual Property (IP) Claims

In this video, Mark Miller of Miller Friel addresses coverage for cyber and intellectual property claims under CGL or General Liability insurance policies.  Although these two kinds of claims differ drastically,  coverage is found for both under standard-form advertising injury coverage grants found in most General Liability insurance policies. 

How this topic got to the top ten list is, in and of itself, an interesting story.  When presenting top ten insurance topics to non-insurance lawyers over the years, recently, more and more lawyers began asking about intellectual property and cyber claims.  IP lawyers were frustrated by the lack of insurer responsiveness to trademark and copyright claims, even when their clients had purchased IP-specific kinds of coverage.  A completely different set of lawyers was concerned that insurers were not covering cyber claims.  In one seminar I mentioned in passing that many of these claims are covered under traditional general liability insurance policies.  In response, an attorney in the audience said: “You need to put that on your top ten list.”  We did, and the topic has generated considerable discussion ever since. 

First, let’s address cyber claims.  Any organization that has fallen victim to a cyber-attack knows that they are expensive to address.  Recent reports put the average cost of addressing a cyber-attack at $150 million.  This alone has caused business’ to flock to recently offered cyber policies.  Insurance carriers are doing their part to sell into this legitimate fear.  Lloyd’s of London, for example, boasted recently that the selling cyber policies will be their next big windfall.  Intent on delivering this windfall, insurers seem to have an unending appetite for fighting the payment of cyber-claims, under virtually any kind of insurance policy, including newly drafted cyber policies.  See  The Wild Wild West of Cyber InsuranceYet, Courts are finding coverage,  and have been repeatedly doing so under traditional CGL insurance policies.  See Insurance for Cyber Attacks: Despite the Hype, You May Already be Covered.  See also, The Improbable Intersection of Baseball Cybercrime and Insurance.

For IP claims, the story is perhaps less colorful, but, is still, just as important.  Standard ISO policy language covers specifically enumerated activities, such as the “misappropriation of advertising ideas or style of doing business,” or the “infringement of copyright, title or slogan.”  See 1986 ISO CGL Policy.  This language has been held to cover such things traditional patent, trademark, trade secrets, and copyright claims, as well as various other business torts commonly associated with these kinds of claims. 

In the video Mark gives a perfect example of a lawsuit brought against one of Miller Friel’s clients.  Watch the video to learn how that turned out. 

If you have any questions about how to secure coverage for cyber or IP claims, please do not hesitate to give us a call.

 To see the whole series, check out Top Ten Insurance Recovery Issues For Non-Insurance Lawyers.

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