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Adoption of Bill 82: The Insurer’s Duty to Defend can Now be Adjusted
Lavery Lawyers, June 2021

On Thursday, May 27, 2021, article 2503 of the Civil Code of Québec was amended as part of the adoption of Bill 82, titled An Act respecting mainly the implementation of certain provisions of the budget speech of 10 March 2020, which we had discussedin a publication last December...

Allegations That COVID-19 was Physically Present and Altered Property are Sufficient to Sustain COVID-19 Business Interruption Suit
Hunton Andrews Kurth LLP, June 2021

On Wednesday, a federal judge in Texas denied Factory Mutual’s Rule 12(c) motion for judgment on the pleadings, finding that the plaintiffs adequately alleged that the presence of COVID-19 on their property caused covered physical loss or damage in the case of Cinemark Holdings, Inc. v. Factory Mutual Insurance Co., No. 4:21-CV-00011 (E.D. Tex. May 5, 2021)...

IRS Guidance Clarifies "Involuntary Termination" for the COBRA Subsidy
Bradley Arant Boult Cummings LLP, June 2021

In Notice 2021-31, the Internal Revenue Service (IRS) provides broad guidance in a question-and-answer format on the application of the American Rescue Plan Act of 2021 (ARP) regarding premium assistance under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) continuation coverage provisions...

Partial Success for Reinsurers as Court Respects Conflicting Jurisdiction Clauses
Shoosmiths LLP, May 2021

The recent anti-suit injunction decision in Axis v Absa Group demonstrates the importance of considering the practical effect of jurisdiction clauses when a suite of contracts or (re)insurance policies are entered into...

Insurer Denies Coverage for Deal Litigation Despite Bank Purchasing Runoff Coverage for Pre-Acquisition Alleged Wrongful Acts
Hunton Andrews Kurth LLP, April 2021

Everest National Insurance Company has filed a lawsuit denying any obligation to cover a post-acquisition lawsuit by a credit union alleging fraud against two banks and their executives. The seller paid additional premium for an extended reporting period to report claims based on pre-acquisition wrongful conduct, but the insurer denied coverage on the ground that any claims asserted by the buyer are excluded under the D&O policy’s “insured vs...

IRS Guidance: COVID-19 PPE May be Eligible to be Reimbursed from Health FSAs, HRAs, and HSAs
Patterson Belknap Webb & Tyler LLP, April 2021

On March 26, 2021, the Internal Revenue Service (“IRS”) published Announcement 2021-7, which notifies taxpayers that certain amounts paid for personal protective equipment (such as masks, hand sanitizer, and sanitizing wipes) for the primary purpose of preventing the spread of COVID-19 (“COVID-19 PPE”) may be an eligible expense that can be reimbursed from certain health care account based plans...

New Favorable Qualified Small Business Stock Guidance for Fintechs and Insurtechs
Hanson Bridgett LLP, April 2021

On April 9, 2021, the IRS released Private Letter Ruling (PLR) 202114002 (January 13, 2021), which provides additional context to taxpayers worried about whether their Fintech or Insurtech shares represent Qualified Small Business Stock (QSBS) under Internal Revenue Code (IRC) section 1202...

CMS Announces Proposed Rate Increases and Other Changes for Skilled Nursing Providers and Hospice Providers in Fiscal Year 2022
Dinsmore & Shohl LLP, April 2021

On April 8, 2021, the Center for Medicare & Medicaid Services (“CMS”) announced a proposed rate increase of 1.3 percent for skilled nursing providers in fiscal year 2022. It is estimated this will result in approximately $444 million increase in payments to skilled nursing facilities (SNF) under Medicare Part A for the fiscal year.  This increased payment rate does not incorporate the SNF Value-Based Program (VBP) reductions that CMS estimates to be $184...

Delaware Issues Landmark Decision Supporting D&O Coverage for Fraud
Hunton Andrews Kurth LLP, April 2021

On March 3, 2021, the Delaware Supreme Court issued a landmark victory for policyholders in the insurance dispute concerning Dole Food Company, Inc. under a directors and officers liability policy, in RSUI Indem. Co. v. Murdock, et al., No. 154, 2020, 2021 WL 803867, at *1 (Del. Mar. 3, 2021). Dole’s dispute was with its eighth-layer excess insurer, RSUI Indemnity Company, which provided $10 million excess of $75 million...

DOL Guidance on Applying One-Year Limit to COVID-19 Outbreak Period Extensions
Bradley Arant Boult Cummings LLP, March 2021

In EBSA Disaster Relief Notice 2021-01, the Department of Labor (DOL) has issued a critical interpretation of prior guidance that extended certain deadlines for employee benefit plans, participants, and beneficiaries due to COVID-19. We discussed the original guidance in this prior article...

American Rescue Plan Act: COBRA Premium Subsidies and Increased Limits for Dependent Care Benefits
Patterson Belknap Webb & Tyler LLP, March 2021

On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (“ARPA”) which is another coronavirus stimulus package aimed at speeding up the United States’ recovery from the economic and health effects of the COVID-19 pandemic...

Insurance (Group Capital) Rules
Deacons, March 2021

The Insurance Authority has recently gazetted the Insurance (Group Capital) Rules. They will come into effect on 29th March, the same day as the Insurance (Amendment) (No. 2) Ordinance which makes provision for the Insurance Authority to supervise on a consolidated basis designated insurance holding companies and members of their supervised group (see our Client Alert dated 27th May, 2020 regarding designated insurance holding companies)...

Insurance (Special Purpose Business) Rules
Deacons, March 2021

The Insurance Authority has now gazetted the Insurance (Special Purpose Business) Rules. They will come into effect on 29th March, 2021, the same day as the Insurance (Amendment) Ordinance which makes provision for special purpose insurers (see our Client Alert dated 27 May 2020 regarding special purpose insurers). The Rules restrict the sale of insurance linked securities. Insurance linked securities are securities issued through insurance securitisation i.e...

Recent Attorney-Client Privilege Cases Show The Risks Of Insurance Counsel Authoring Denial Letters
Dinsmore & Shohl LLP, February 2021

Claims of bad faith present unique challenges for insurers (and their counsel) with respect to attorney-client privilege: if the insurer’s state of mind is at issue, is the legal advice on which the insurer relied also at issue, thereby waiving the privilege? And if so, under what circumstances? The following addresses this issue in the context of a common practice for insurance counsel—authoring denial letters—and two recent holdings that should serve as warnings in th

Coronavirus: Business Interruption Insurance and COVID-19
PLMJ, February 2021

The judgment of the United Kingdom Supreme Court On 1 May 2020, the Financial Conduct Authority (“FCA”), the body that oversees the insurance industry in the United Kingdom, announced that it wanted to obtain a ruling from the English courts on the meaning and effect of the sample of business interruption clauses that it selected from eight insurers in particular...

UK Supreme Court Rules on Insurance Policy Wording for Business Interruption Losses due to COVID-19
Deacons, February 2021

A recent UK Supreme Court Judgment, the Financial Conduct Authority v Arch Insurance (UK Ltd) & Ors [2021] UKSC 1, clarified whether a variety of insurance policy wordings cover business interruption losses resulting from the COVID-19 pandemic and public health measures taken by UK authorities in response to the pandemic from March 2020...

Year in Review: Top Insurance Cases of 2020
Hunton Andrews Kurth LLP, January 2021

Not surprisingly, COVID-19 business interruption insurance disputes dominated media headlines for most of 2020. Nonetheless, there were a number of other insurance rulings that will undoubtedly shape the coverage landscape. Policyholders enjoyed a number of significant wins including significant victories related to COVID-19 business interruption cases. The start of a new year gives us an opportunity to highlight some of 2020’s most notable coverage decisions...

Recent Federal Cases in the N.D. Ohio Split on COVID-19 Business Interruption Insurance Coverage
Dinsmore & Shohl LLP, January 2021

Two federal cases in the Northern District of Ohio recently reached very different conclusions on whether the state’s COVID-19 shutdowns of restaurants permit valid claims for business interruption insurance coverage. Reviewing essentially the same facts and policy provisions, one court found for the insurer, holding no coverage to exist. The other found for the policyholder, awarding coverage. The opposite results will no doubt lead to further upcoming appellate activity in Ohio...

Court Finds in Favor of Restaurants Seeking Coverage for Loss of Business Income
Hanson Bridgett LLP, January 2021

In a scenario that has played out across the country for nearly a year now, a group of restaurants based in Ohio were ordered by government authorities to close their on-site dining operations to abate the spread of the coronavirus. However, when the restaurants sought insurance coverage for their loss of business income, their insurer, Zurich American Insurance Company, denied coverage. Last week, the U.S...

Business Interruption Insurance Cover: Supreme Court FCA Test Case Decision
Shoosmiths LLP, January 2021

The Supreme Court has handed down its much anticipated decision relating to the coverage of business interruption insurance claims made following the COVID-19 pandemic. A key question was whether the Supreme Court ruling would finally provide the clarity that the expedited test case sought to achieve for both policyholders and insurers. The good news for all is that the Supreme Court has indeed provided much more clarity in relation to most issues...

Proof by Sampling in Construction Cases
Shoosmiths LLP, January 2021

How does one resolve a dispute involving thousands of individual items where it is impractical to deal separately with each one? A recent decision in the Technology and Construction Court provides some guidance - but raises further questions. The case is Standard Life Assurance Limited v Gleeds (UK)(a firm) and Others (December 2020, TCC). Standard Life had engaged Costain as its main contractor for the development of a large residential and retail development in Berkshire...

UIF Does a Payment Re-Run and Gives Clarity on COVID-19 TERS Benefits Over the Festive Season
ENSafrica, January 2021

The Unemployment Insurance Fund (“UIF”) has shed some light on what will happen to existing and outstanding COVID-19 Temporary Employer-Employee Relief Scheme (“TERS”) applications and payments, particularly over the festive season. We discuss the must-knows for employers below...

Adrian Azer and Michael Scanlon in Claims Journal: ‘Another COVID-19 Worry: What is My Deadline to File Suit?’
Haynes and Boone, LLP, January 2021

When the scope of the COVID-19 pandemic became apparent in March 2020, an avalanche of articles appeared in which many insurers took the position that there was no coverage for losses associated with the SARS-CoV-2 virus due either to a lack of physical loss or damage to property necessary to trigger coverage under most commercial property policies, or to the effect of virus exclusions found in many such policies...

Hunton Isurance Recovery Blog: Most Read in 2020
Hunton Andrews Kurth LLP, January 2021

Happy New Year! Not surprisingly, the Hunton Insurance Recovery Blog’s top ten most read posts of 2020 are dominated by COVID-19 business interruption insurance issues, as these disputes monopolized media headlines throughout the year. While 2021 shows promise for gaining control over the disease, the resulting insurance disputes are certain to remain center stage and our team will continue to report on material developments involving COVID-19 and other insurance coverage issues...

Continuous Trigger Theory, A ‘Grand Slam’ Approach to Recovery Under CGL Insurance?
Bradley Arant Boult Cummings LLP, December 2020

It behooves construction professionals, be they materials manufacturers, general contractors, or lower-tier subcontractors, to carry some form of commercial general liability insurance (“CGL Insurance”). Having such coverage alleviates some of the potential risk and financial exposure a construction professional carries on a particular project. That is, of course, unless the construction professional gets sued and the insurer refuses to pay...



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