Foo Fighters Sue Lloyd’s Over Terrorism Coverage

Foo Fighters
The Foo Fighters said they are suing Lloyd’s of London for failing to reimburse them for scheduled concerts that were called off after the November terrorist attacks in Paris.
Loss adjuster Robertson Taylor is also part of the suit, which was filed on June 13 in federal court in Los Angeles.

The group canceled scheduled shows in Turin, Italy; Paris and Lyon, France; and Barcelona, after the Islamic State attacks because of threats, according to the Associated Press. Immediately following the Paris attacks, the Foo Fighters said, their website was hacked and the ISIS flag was displayed with an automatic weapon and a threat to “be prepared.”

The AP reported:

The band says in the suit that it believes it will be paid for the Paris and Lyon cancellations but alleges that Robertson Taylor advised underwriters against paying for canceled shows in Italy and Spain despite ISIS releasing a video threatening additional attacks in Europe.

The band is also suing the insurers for not paying for three canceled shows related to group leader Dave Grohl’s injured leg after a fall from a stage in Sweden last June.

Performers cancel shows for a number of reasons, but whether they are covered depends on details in their cancellation insurance policy. Terrorism is listed as a cause of loss by K&K Insurance. Other triggers include:

  • Power failure
  • Damages to leased or rented venues
  • Damage to surrounding venues or infrastructure resulting in lack of access
  • Natural catastrophe such as earthquake and flood
  • Adverse weather conditions (coverage is broader than rain insurance and there are no rain gauge requirements)
  • Non appearance of a principal speaker or entertainer
  • Inability to erect facilities at a venue
  • Disease outbreak (certain exclusions may apply)
  • Labor dispute/strike risks
  • Failure of TV broadcast
  • Any other previously unforeseen cause not excluded under the wording.

For more information about recent cases involving event cancellation, check out our recent article in Risk Management Magazine.

Risk Landscape: Coverage Trends to Watch

Being aware of your company’s new and changing risks is critical for sound risk management. As the year progresses, we have identified growing risks facing
companies, and their directors and officers, that are likely to impact policyholders. These risks include cybersecurity, Telephone Consumer Protection Act (TCPA) lawsuits, drones, wage and hour lawsuits and food recalls. The risks and issues to watch out for are expanded below:

Cybersecurity

Cyberattacks against businesses doubled in 2015 and are expected to continue to increase as attackers become even more sophisticated. Watch out for:

Phishing scams and social engineering fraud. In social engineering scams, hackers utilize phishing, purporting to be legitimate employees or third parties try to trick businesses into wiring funds or allow access to their systems. Although many businesses have crime insurance that covers “computer systems fraud,” ambiguous provisions or liability limits may restrict coverage. SomCompliancee courts have held that fraud coverage applies only when intrusions are unauthorized, but not when an unwitting employee falls prey to an online scam.

Data breaches. Companies should also be conscious about their coverage for data breaches, which increasingly present significant exposures. Insurers often contest whether data breaches constitute “publication” of private information, and, if so, whether an insurer’s duty to defend applies. This is particularly important as the storage of consumer data is a lynchpin of many businesses’ operations and marketing.
Businesses need to ensure that their commercial insurance policies adequately cover their business risks and consider purchasing dedicated cyber policies.

Coverage for TCPA claims

Certain efforts to engage with consumers may come at a steep cost. Under the Telephone Consumer Protection Act (TCPA), businesses that send unsolicited faxes, voice calls or text messages to consumers may be held liable for at least $500 per violation.

General liability coverage of TCPA claims. In recent years, commercial general liability (CGL) insurers have increasingly added broad exclusions to their policies for TCPA claims. Moreover, courts are split on whether “right to privacy” coverage in CGL policies cover these claims. Some courts uphold coverage only for losses from incidents that divulge confidential information (secrecy-related claims), whereas others uphold coverage for unsolicited communications, even if they do not republish confidential information.
While such coverage may be restricted under CGL policies, policyholders may have coverage under their directors’ and officers’ (D&O) insurance.

LA Lakers test case for D&O coverage. In 2016, the Ninth Circuit will likely address this issue in an appeal by the Los Angeles Lakers. The franchise’s marketing campaign included sending unsolicited text messages to fans. When sued under the TCPA, the franchise sought coverage for its defense costs under its D&O policy. In April 2015, a California federal court rejected coverage, finding that the policy’s “invasion of privacy” exclusion precluded coverage.
As businesses seek to engage consumers directly through various media, they should consider whether their insurance protects against TCPA claims.

UAVs and Insurance in 2016

Unmanned aerial vehicles (UAVs), or drones, promise to revolutionize not just commerce but insurance as well. The United States Federal Aviation Administration (FAA) estimates that, by 2023, annual global spending on UAVs will total $11.5 billion, and by 2020, about 30,000 commercial and civil drones will dot the skies.

Drone property loss and liability. The rise of drones raises several risks. The most obvious of these risks are loss of property and third-party liability. Use of drones for package or cargo delivery raises the risk of damage to the UAV itself—or its payload, which is usually the bigger loss. As shown by recent news reports and the first lawsuit, Boggs v. Merideth (W.D. Ky.), operators face liability for costs of defense and settlements or judgments payable to third-party claimants when UAVs go astray. With drones’ ability to film and collect data, other risks include privacy-related claims and data breach and hacking.

New coverage provisions. In June 2015, the Insurance Services Office, Inc. (ISO), approved new coverage provisions addressing commercial use of drones. The new ISO provisions modify standard CGL and umbrella/excess liability policy forms and merit close consideration by policyholders.
Because these new provisions are untested, policyholders should review them carefully against their entire insurance program and consult with insurance advisors to ensure that new provisions or policies provide the protection needed. Companies using UAVs should consider the aviation insurance market and also assess the need for cyber insurance coverage for privacy and data-breach exposures.

Wage-and-Hour Lawsuits

Cases alleging violations of the Fair Labor Standards Act (FLSA) have shot up in recent years. In 2015, almost 9,000 FLSA cases were filed in federal court, up more than 10% from 2014, and 30% from 2011. State courts have also experienced high volumes of wage-and-hour cases. California and New York recently enacted laws that allow directors, officers, and in New York, “top 10 shareholders” to be held personally liable for wage-and-hour violations.
Traditionally, companies have looked to their employment practices liability (EPL) and D&O insurance to protect against the defense and liability costs in wage-and-hour lawsuits. However, EPL insurance policies today regularly exclude coverage for such claims. Unlike EPL policies, D&O policies do not routinely exclude such coverage, but are including such exclusions with increasing frequency. As a result, policyholders must review D&O policies carefully to ensure that they protect against the threats posed by such claims.
Brokers and insurers have been developing new insurance products that specifically address these increasing wage-and-hour exposures. Policyholders, particularly those with significant operations in California and New York, should consider these newly emerging wage-and-hour specialty policies to ensure that they are adequately protected.

Food Contamination and Recall Coverage

The number of food product recalls for alleged contamination, undisclosed ingredients and other mislabeling issues also has risen dramatically. Although CGL and business property insurance policies provide some protection against liability for food contamination and recalls, savvy food companies should also consider specialized recall and contamination coverage.
These specialized policies may cover the reasonable costs that a policyholder incurs, for example, to examine its products for contamination, announce and institute a product recall, safely destroy contaminated products, and reimburse distributors and retailers for down-stream recall costs. Such policies often include crisis management coverage to help the policyholder mitigate negative media reports.

Varying types of special coverage. Because recall and contamination policies are not standardized, individual insurers offer differing policy terms and levels of coverage. Companies contemplating the addition of such coverage, or pursuing coverage under an existing policy, should closely examine the policy to understand the scope and limitations of coverage.

Items to watch. When purchasing such coverage, food companies need to identify their primary risks and negotiate the broadest possible coverage. In addition, because such policies often include very strict notice requirements, policyholders should give notice as soon as a recall arises to avoid coverage denial on late notice grounds.

Christina Buschmann, Linda Powell and Adrian Torres, Perkins Coie Insurance Recovery attorneys, also contributed to this article.

P&C Rates Drop 2% in May

The rate index for property and casualty risks was down 2% in May, the same as was seen in April, MarketScout reported. Accounts of more than $250,000 were priced more aggressively in May, at minus 3% compared to minus 2% in April.

“The market was stable in May with small movements in coverage, industry, and size classifications,” MarketScout CEO Richard Kerr said. “As we have seen in the past, larger premium accounts were priced more aggressively. Overall, the composite rate was down 2% in May, matching the rate for April.”

Acct size

According to the Insurance Information Institute:

A dominant factor in the P/C insurance cycle is intense competition within the industry. Premium rates drop as insurance companies compete vigorously to increase market share. As the market softens to the point that profits diminish or vanish completely, the capital needed to underwrite new business is depleted. In the up phase of the cycle, competition is less intense, underwriting standards become more stringent, the supply of insurance is limited due to the depletion of capital and, as a result, premiums rise. The prospect of higher profits draws more capital into the marketplace, leading to more competition and the inevitable down phase of the cycle.

By coverage classification, rates for property, business interruption, professional, auto, directors and officers, and surety all moderated 1% compared to April. Crime coverage increased from flat to plus 1%.

Coverage class

Industry classifications are examined to determine rate movement as measured when grouping accounts according to their SIC, or Standard Industrial Classification codes, MarketScout said. SIC codes are four-digit numerical codes assigned by the U.S. government to business establishments to identify their primary business, according to SICcode.com.

Industry class 3

The SIC codes are then incorporated into seven different segments. The only changes in rates in May versus April were in habitational, which moderated from minus 3% to minus 2%; and energy, which was priced slightly more aggressively at minus 3% compared to minus 2%. All other industry classifications were unchanged compared to April, MarketScout said.

Customers Accept Hacking Risks, But Hold Businesses Fully Accountable for Cyber Risk

While most consumers are coming to consider hacking normal, they are definitely far from letting businesses off the hook for their failures to guard against cyberthreats. According to a new study from enterprise security firm Centrify, about three quarters of adults say it is probably or definitely normal and expected for businesses and large organizations to be hacked, and 66% of adults in the U.S. are at least somewhat likely to stop doing business with a company that has suffered a cyberbreach – a figure that rises to 75% in the U.K.

Consumers also firmly believe that the burden of responsibility for guarding against cyberrisk falls squarely on businesses. On a 10-point scale, two thirds of respondents rated corporations as a nine or 10 in terms of how responsible they should be for preventing hacks and securing customers’ personal information. When companies are hacked, they consequently also bear the burden of being fully accountable to their customers, and many are failing, further compounding the odds of concrete consequences from clients. In the U.S., 41% said that corporations do not take enough responsibility when they are hacked, a sentiment shared by 50% of U.K. respondents.

The study found that 21% of U.S. consumers say they are “very likely” to stop doing business with a company that has been hacked. Those most likely to do so include those who have had their personal information compromised in a hack, those who are tech savvy, and those who are frequent online shoppers.

“The study clearly points to the need for organizations to dramatically bolster their security systems and do everything in their power to protect consumer information and prevent a breach,” said Tom Kemp, CEO of Centrify. “When companies put customer data at risk they are really putting their entire business at risk. Consumers simply will not tolerate doing business with hacked organizations. It’s time for organizations to take full responsibility for their security and put the proper measures in place once and for all.”

Check out some of the study’s findings in the infographic below:

Centrify Infographic