Insurer With Financial Responsibility Has Standing to Object to Kaiser Ch. 11 Reorganization Plan Kaiser Gypsum Co. and its parent, Hanson Permanente Cement, filed a Chapter 11 bankruptcy and submitted a Section 524(g) Reorganization Plan which would channel all present and future asbestos claims into a trust. The debtors proposed plan treated insured and uninsured claims differently. Under the proposed plan,... Read More
Vertical Exhaustion Applies in Continuous Injury Cases; Contribution Dispute between Insurers Remanded The California Supreme Court reversed the appellate court and unanimously held that “vertical exhaustion” applies in the continuous injury context under the standard language found in commercial general liability policies. It concluded that an insured may seek coverage from a first level excess policy upon the exhaustion of... Read More
Extraneous Facts Not Considered and Mention of Gross Negligence Not Enough in Determining Whether Insurer Has a Defense Duty The Appellate Court of Illinois for the First District, in an opinion by Justice Lyle applying Illinois law, held that State Auto Property & Casualty Insurance Company (“State Auto”) had no duty to defend its policyholder, Distinctive Foods, LLC (“Distinctive”), under... Read More
“Access or Disclosure” Exclusion Precludes Coverage for BIPA Lawsuits, But “Violation of Laws,” “Data Breach” and “ERP” Exclusions Do Not The United States Court of Appeals for the Seventh Circuit, in an opinion written by Judge Easterbook, affirmed two lower court decisions concerning the scope of an insurer’s duty to defend its insured against allegations of the insured’s violations of... Read More
BIPA Statutory Overview Courts Interpret BIPA Liability and Damages Broadly Insurance Available for BIPA Claims BIPA Statutory Overview The Illinois Biometric Information Privacy Act (“BIPA”) presents substantial potential liability to any company doing business in the state. It provides for draconian damages for the use of biometric information that is commonplace in other states. Because Illinois’ BIPA statute is unique in that it... Read More
Violation-of-Law Exclusion Bars Coverage for BIPA Claim; Estoppel Does Not Apply The Illinois Appellate Court for the First District, in an opinion written by Judge Ellis, applying Illinois law, declined to follow a recent decision from the Seventh Circuit and determined that there were no coverage obligations for an underlying claim asserting violations of the Biometric Information Privacy Act, 740... Read More
Is BIPA the Proverbial “Next Big Thing”? Plaintiffs’ lawyers are always on the lookout for “the next big thing.” It may be here. In 2008, Illinois became the first state to enact a biometric privacy law that prohibits private companies from collecting, capturing, purchasing, receiving through trade, or otherwise obtaining a person’s biometric information without informing and receiving written consent.... Read More
In May 2021, the Illinois Supreme Court ruled on the seminal Illinois insurance coverage case for underlying actions alleging violations of the Illinois Biometric Information Privacy Act 740 ILCS 14/1 et seq. (West 2018) (“BIPA”), West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978. It held West Bend had a duty to defend because the... Read More
Exclusions Not Applicable to Bar Personal and Advertising Coverage The United States District Court for the Northern District of Illinois, in an opinion by Judge Alonso, applying Illinois law, denied an insurer’s motion for judgment on the pleadings, holding that Continental Western Insurance Company (“Continental”) had a duty to defend its insured, Tony’s Finer Foods Enterprises (“Tony’s”), in an underlying... Read More
Defense Costs Owed under Media Liability Coverage The Appellate Court of Illinois for the First District, applying New York law due to a choice of law provision, held that Certain Underwriters at Lloyd’s London (“Lloyd’s”) had an obligation to pay for defense expenses for its insured, a technology company, in an underlying lawsuit that alleged the insured violated the Illinois... Read More
