Legal Analysis
Fundamentals of the Cybersecurity & Insurance Data Security Model Law
September 4, 2024
Very little in today’s “flat,” hyper-connected world moves without some form of insurance. From a simple concept hatched at Lloyd’s Coffee House in 1690s London to possibly the most critical business on the planet, today’s defense of insurers and their insureds is no simple matter.
For nearly 40 years Wilson Elser has been closely aligned with the insurance industry, influencing the way it does business, from the clarity of the language in its policies to the types of products it offers to its expansion into every industry. We have been in the business of helping public and private-sector clients identify and prevent exposures and, if they occur, capably managing reaction and recovery. This is our heritage and remains among our greatest strengths. The attorneys of Wilson Elser have the depth and breadth of experience to handle virtually every type of case – from a small claim to the most complex legal matter and all the transactional and jurisdictional issues in between.
As some of the world’s most discriminating buyers of legal services, our clients increasingly look to work with integrated “teams” that can advance their business objectives. We accommodate them through a dynamic operating model that draws on the collective experience and resources of the entire firm in realizing desired legal outcomes. Ever mindful of the increasing economic pressures under which our clients conduct their businesses, we are committed to resolving claims quickly and efficiently. Our practice attorneys regularly access centralized resources and firmwide talent. This type of collaboration frequently spawns innovative and cost-effective solutions to our clients’ most complex legal issues.
We scrupulously attend to every detail in preparing to defend our clients. This is the hallmark of our Insurance Defense attorneys and the principal reason for our enviable track record of success.
Very little in today’s “flat,” hyper-connected world moves without some form of insurance. From a simple concept hatched at Lloyd’s Coffee House in 1690s London to possibly the most critical business on the planet, today’s defense of insurers and their insureds is no simple matter.
For nearly 40 years Wilson Elser has been closely aligned with the insurance industry, influencing the way it does business, from the clarity of the language in its policies to the types of products it offers to its expansion into every industry. We have been in the business of helping public and private-sector clients identify and prevent exposures and, if they occur, capably managing reaction and recovery. This is our heritage and remains among our greatest strengths. The attorneys of Wilson Elser have the depth and breadth of experience to handle virtually every type of case – from a small claim to the most complex legal matter and all the transactional and jurisdictional issues in between.
As some of the world’s most discriminating buyers of legal services, our clients increasingly look to work with integrated “teams” that can advance their business objectives. We accommodate them through a dynamic operating model that draws on the collective experience and resources of the entire firm in realizing desired legal outcomes. Ever mindful of the increasing economic pressures under which our clients conduct their businesses, we are committed to resolving claims quickly and efficiently. Our practice attorneys regularly access centralized resources and firmwide talent. This type of collaboration frequently spawns innovative and cost-effective solutions to our clients’ most complex legal issues.
We scrupulously attend to every detail in preparing to defend our clients. This is the hallmark of our Insurance Defense attorneys and the principal reason for our enviable track record of success.
Kimberly Blair (Partner-Chicago), Joseph Stafford (Partner-Chicago), and Thomas Duff (Associate-Chicago) secured an affirmance of a summary judgment from the Appellate Court of Illinois, First District, in a coverage dispute brought against Wilson Elser’s client, an insurance company. The case centers on our client’s denial of coverage for two medical malpractice suits against the plaintiff, a hospital facility, due to its failure to report the lawsuits as required in its professional liability insurance policy.
In the underlying matter, Wilson Elser maintained that although an existing SIR Endorsement’s notice requirement replaced the plaintiffs’ obligation to give notice of claims to our client “as soon as practicable,” it did not supersede the plaintiff hospital’s separate obligation to report claims within the policy period. The circuit court agreed with Wilson Elser’s reading of the policy and granted summary judgment for the insurance company. The appellate court affirmed, concurring with Kim, Joe, and Thomas’s assessment that the policy was a “claims made and reported policy,” that this interpretation is not at odds with the language of the SIR Endorsement, and that their arguments presented the only reasonable interpretation of the unambiguous policy language.
Kimberly E. Blair
Colt B. Dodrill (Of Counsel-Phoenix) and Monique Young (Of Counsel-Phoenix) prevailed in Maricopa County Superior Court on behalf of Wilson Elser’s carrier client’s insured driver. Colt and Monique successfully moved to intervene and set aside a year-old default judgment of more than a quarter-million dollars levied against the insured driver. The plaintiff’s counsel maintains that our carrier client was long aware of the plaintiff’s claim against its insured, who was duly served. Colt and Monique directed the court to the opposing counsel’s failure to notify the carrier of the suit, which, although not required for service, provides the equitable basis for the blindsided carrier to intervene and set aside the default judgment. Colt and Monique successfully argued the distinction between a carrier’s notice of claim and notice of suit, defeating the plaintiff’s untimeliness argument by emphasizing that our client was not notified of the suit until nine months after the default judgment was entered. Relying on the public policy favoring settlement, Colt and Monique convinced the court that settlement discussions between notice of the suit and the motion filing did not constitute undue delay. They also maintained that the reported absence of contact between the insured’s vehicle and the plaintiff’s vehicle and the comparative fault of settling non-parties in the multi-vehicle accident not alleged in the plaintiff’s complaint provides a meritorious defense warranting setting the default aside. The court agreed and set aside the default judgment, saving the client substantial post-judgment interest and allowing it to defend the insured driver and negotiate a favorable resolution under the facts related to the accident, which were not presented in the plaintiff’s application for default judgment.
Colt B. Dodrill
Doug Kemper (Of Counsel-Louisville, KY) and Cyrus Dutton (Associate-Louisville, KY) were granted their motion to dismiss by Jefferson Circuit Court, Jefferson County, Kentucky, with added language to make its ruling immediately final and appealable. The plaintiff, an Ohio resident, was involved in a multi-party motor vehicle accident in Kentucky with another Ohio resident insured by our client, an insurer incorporated in Ohio with its principal place of business in Ohio. Liability for the accident was disputed, and the plaintiff sued the insured and joined third-party bad faith and punitive damages claims against the insurer alleging statutory and common law bad faith claims for failing to pay the claim. Doug and Cy moved to dismiss the bad faith claims on the grounds that Ohio law applies under a Conflict of Law analysis, and that Ohio does not recognize third-party bad faith claims against insurers. The motion was granted.
W. Douglas Kemper
Tommy Spitaletto (Partner-Dallas, TX) successfully argued the summary judgment motion in the District Court and the Fifth Circuit oral argument on appeal by plaintiff (an appellant-judgment creditor), who sued our carrier-client over a $1.6 million judgment against its insured, which resulted from an underlying personal injury lawsuit. The carrier had denied coverage because the insured failed to request a defense. The plaintiff argued that the policy does not expressly require an insured to “request” a defense, that our client had knowledge of the underlying lawsuit because it was defending another defendant in the same case, and that its insured had in fact forwarded a copy of the Petition. The appellant challenged the District Court’s summary judgment dismissal of his claims as a third-party beneficiary/judgment creditor. Relying on the Texas Supreme Court’s Crocker opinion and others, the Fifth Circuit affirmed summary judgment, finding that the insured must not only forward suit papers but also request a defense, which in this case did not occur. The court also rejected another argument by the appellant that prejudice was required.
Thomas M. Spitaletto