Legal Spotlight: October 1, 2014
Firms Given More Control Over Independent Counsel
Signal Products Inc. manufactured handbags and luggage using a design known as the “Quattro G Pattern executive in brown/beige colorways,” in accordance with its license from Guess? Inc.
In 2009, Gucci America Inc. filed suit against Guess?, Signal and others, claiming the design “infringed on a distinctive Gucci trade dress known as the ‘Diamond Motif Trade Dress.’ ” Signal’s share of the infringement claim was $1.8 million.
Signal filed suit in U.S. District Court in California after its insurers — American Zurich Insurance Co., which had issued a primary commercial general liability policy, and American Guarantee and Liability Insurance Co., which had issued an umbrella liability policy — refused to pay $1.9 million in defense costs.
Zurich countersued, seeking a summary judgment that it was not required to reimburse Signal for a $750,000 interim legal payment to the primary legal firm retained by Guess? (of a total $1.9 million in fees for Signal) or for $1.2 million in legal fees for a second law firm that represented Signal in the action.
The insurers argued they were not required to pay fees to the second law firm because Signal had already retained another law firm to represent it, and that the fees were not incurred in connection with Signal’s defense.
U.S. Judge Christina Snyder in August rejected requests from both sides for summary judgment, ruling more information was needed to determine reasonableness of legal fees and other “genuine issues of disputed material fact.”
However, she did rule, in this case of first impression, that Signal could use more than one law firm as independent counsel when there is a potential conflict of interest in insurance cases.
“Having accepted that multiple attorneys may serve as … counsel, there does not appear to be any principled grounds for requiring as a matter of law that all of those attorneys need to be employed at the same law firm,” she wrote.
Scorecard: The insurers may have to pay up to $1.2 million to the second of two law firms, in addition to possibly having to pay up to $1.9 million in litigation costs to the primary firm.
Takeaway: California law allows an insured to retain more than one law firm as independent counsel in an insurance dispute.
Attorneys’ Fees Not Included in Damages Exclusion
Both actions were settled by PNC: One in 2010 for $12 million — which included $3 million in attorneys’ fees, $77,857 in costs and expenses, and $15,000 toward incentive fees for the representative plaintiffs — and one in 2012 for $90 million, including $27 million for attorneys’ fees, $183,302 for reimbursement of costs, and $30,000 in plaintiffs’ incentive awards.
On May 21, a U.S. judge in the Western District of Pennsylvania recommended that the insurers cover the settlement costs. Both Houston Casualty Co. and Axis Insurance Co. had issued policies with a $25 million liability limit, subject to a $25 million retention.
In June, U.S. Judge Cathy Bissoon in that district disagreed. She ruled that the insurers were not responsible for the part of the settlements that returned overdraft fees to customers — since fees were excluded from the definition of “damages” in the policy.
Attorneys’ fees and costs totaling $30.3 million, she ruled, were not excluded. She ordered more proceedings on the claims expenses and damages.
Scorecard: Two insurers are responsible to cover up to $30.3 million for attorneys’ fees and costs that were included in settlements of two class-action lawsuits.
Takeaway: The fee exception to damages does not extend to the entirety of settlement costs, particularly attorneys’ fees, costs and incentive awards.
Underwriters Must Pay Recall Costs
When Abbott Laboratories agreed in December 2000 to acquire the global operations of Knoll Pharmaceutical Co., it notified its Lloyd’s of London carriers, in accordance with its product recall insurance coverage. That coverage stated the new entity would automatically be covered, but additional premiums would have to be negotiated.
As part of the negotiation with a group of underwriters led by Beazley and American Specialty Underwriters, Abbott indicated there was no “current situation, fact or circumstance” that would lead to a claim under the Accidental Contamination policy (which would include any government drug recalls).
A premium was eventually paid and accepted in July 2001, even after the company advised the underwriters that the U.S. Food and Drug Administration may pull Knoll’s popular thyroid drug Synthroid from the market.
The company and its underwriters did execute in October 2001 a “tolling agreement … that would allow the parties to preserve their rights with respect to any Synthroid-related claims.”
On March 6, 2002, the Italian Ministry of Health suspended all sales and marketing of sibutramine (manufactured by Knoll as Meridia).
Abbott filed a claim under the policy, and on May 16, 2003, the underwriters informed Abbott the tolling agreement was cancelled because Abbott “had not fully responded to their document and information request.” When it asked what information was needed, Abbott received no response.
On June 2, 2003, the underwriters filed suit to rescind the policy, while Abbott countersued for a declaratory judgment for coverage, breach of contract and “vexatious delay damages.”
A judge rejected the underwriters’ claim for recission, noting that the insurers had accepted the additional premium and that the Synthroid situation had been disclosed in a timely manner.
For damages, the court put the company’s losses at $155.2 million. Minus a deductible and 10 percent coinsurance, the underwriters were told to pay $84.5 million, plus about $2.8 million in costs and interest.
A three-judge panel on the Appellate Court of Illinois, First Judicial District, upheld that decision on appeal on July 28.
Scorecard: The underwriters have to pay $84.5 million plus $2.8 million in costs and interest.
Takeaway: By accepting the premium and failing to pursue issues of due diligence, the underwriters undercut their argument for a “material misrepresentation” by the company.
Banks Face New Threat
Banks have been caught off guard by what experts say is the first major mobile banking security threat to hit the United States.
It is a modification of the mobile Trojan called Svpeng, which has been used to steal money from Russian mobile bank accounts, said Dmitry Bestuzhev, head of the global research and analysis team, Latin America, at Kaspersky Lab, the Woburn, Mass.-based antivirus software company that discovered the malware.
The malware, which emanates from Russia, has been termed “ransomware,” because the hackers demand payment in exchange for not destroying the victim’s reputation, claiming there is child pornography and other prohibited content on the cell phone.
“It takes a picture of the victim and then says it will send it with the child pornography findings to all of the victim’s contacts,” Bestuzhev said.
“Nobody wants to be a victim of such reputation damage.”
This new malware is deeply integrated and is almost impossible to remove from an infected device, he added.
Better software is needed to protect against malware, said Chris Keegan, a managing director at Beecher Carlson in New York.
For now, banks rely on warning their customers against social engineering attempts by fraudsters, and usually that means, “Don’t press the button or answer the email.” Banks must warn their customers not to download any applications not found on verified websites, he said.
Banks Ran Out of Time
Avivah Litan, a Gartner Inc. vice president and analyst in Potomac, Md., said the malware should serve as a wake-up call for many banks, as a fair number of them have not developed security measures for mobile banking that are as robust as those used in online banking.
Ensuring that customers use secured browsers doesn’t apply when they use mobile apps.
Giants like Chase Bank, U.S. Bank and others are developing tougher measures specific to mobile, but the industry as a whole needs to step it up, Litan said.
“They’ve just been slow to put measures in place specific to mobile because there hasn’t been any mobile malware,” she said. “Everybody knew it was coming, but they thought they had more time.”
Matt Krogstad, head of mobile banking at Bank of the West in San Francisco, said the bank’s fraud prevention department works with his department to combat mobile malware and other types of mobile banking fraud.
“It’s an ongoing process since the mobile security space is constantly evolving,” Krogstad said.
Bank of the West diligently educates customers about the latest threats, Krogstad said. In cases like Heartbleed, communications to customers were to reassure them that the bank had done its due diligence to ensure that their accounts were safe.
“With other malware like this randomware, it’s more about reinforcing certain behaviors, such as not downloading apps from unofficial app stores or not clicking on links from people you don’t know,” he said. “Don’t jailbreak your phone or put your banking passwords in your contacts.”
Keeping up with all types of cyber crime continues to challenge the industry. Indeed, computer crime and malicious codes rank as No. 5 as a top risk for banks, according to Aon’s “2014 U.S. Industry Report: Financial Institutions.”
However, there is a disconnect at most banks that hampers risk mitigation, said Michael O’Connell, managing director, financial institutions practice at Aon Risk Solutions.
The disconnect occurs because one group traditionally is responsible for purchasing insurance, while another group is responsible for assessing exposures, including technology that may pose an operational enterprise risk, said O’Connell.
“We strongly recommend linking the two groups together, to assess ‘what-if’ scenarios and develop mitigation strategies that include insurance,” he said.
Kevin Kalinich, Aon’s global practice leader for cyber/network risk, said that recent court decisions have ruled that if fraudsters are able to steal customer identities or money, it is the bank’s obligation to help their customers, even if the fraud is out of the bank’s control.
“So if a customer gets fooled on their mobile devices, then the bank has the responsibility to monitor usage of their bank accounts,” Kalinich said.
Contractors Face Complex Insurance Scenario
With today’s expanding global marketplace, U.S.-based construction companies naturally seek growth opportunities in foreign countries. For instance, China has been on a decades-long building spree. Middle Eastern nations continue to invest in massive developments. Cross-border construction activity among developed countries, particularly in Europe and Japan, remains robust.
That’s the good news for U.S. contractors considering or already involved in global projects. On the flip side, it’s critical to realize that international opportunities present different challenges than domestic projects.
Construction services represent a significant portion of global trade. World exports of construction rose 2% (to $115 billion) in 2012, the World Trade Organization estimates. The European Union and Asia represent the major share of that trade. Yet, while international trade in construction is on the rise, every country retains its own laws regarding insurance, so building a multinational insurance program represents a significant challenge.
ACE’s recently published whitepaper, “Global Construction: International Opportunities, Local Risks” focuses on educating risk managers about the complexities of going global.
Key issues for contractors to consider include:
Legally speaking, compliance for U.S. contractors operating outside the U.S. is much more complex than for their domestic operations. For example, by operating in different countries, multinational contractors must adhere to a myriad of local national laws and regulations regarding the “duty of care” they owe to the general public and other third parties. While most of the developed world has established employer duty-of-care legislation, the majority of the countries where many of these new global projects are available have not. A contractor’s insurance program should be flexible enough to handle claims in several different jurisdictions and provide adequate coverage for awards granted in emerging, as well as developed, legal jurisdictions.
Continuity of coverage across borders
For projects in foreign countries, a proactive risk management strategy should not only address the wide range of exposures typical in a given construction project, but also the impact that the differing local laws and regulations may have on the insurance coverage. For example, a contractor may have to obtain local insurance policies for various lines of business to cover the risks associated with its operations and to be compliant with local insurance requirements.
Building multinational solutions
A multinational program using “non-admitted” coverage can be a cost-effective alternative to local coverage. Such non- admitted coverage is usually arranged in the parent company’s home country to insure exposures in other countries. Some countries, however, don’t allow non-admitted coverage, while others may allow it subject to conditions such as prior approval. In the past the threshold question was whether non-admitted insurance could be used, but today companies should also consider potential changes in enforcement practices as well as evolving regulations.
Local services can be crucial
Besides compliance issues, companies should address issues such as how local claims will be handled and paid, and which other local services they may need in the event of a claim or incident. For example, companies building projects in the European Union may want to purchase environmental coverage that responds to the demands of the European Environmental Liability Directive in order to provide proper insurance protection for potential liability associated with damage to the environment or natural resources. On a broader level, catastrophe planning should be part of a global risk management strategy.
Public/private partnerships may bring new risks
Another consideration for contractors revolves around project structure. Typically in the U.S., construction projects have been driven either by the owners or the contractors and the insurance coverage reflected that through an owner- or contractor-controlled insurance program (OCIP/CCIP). Today, while more U.S. projects are being structured as public-private partnerships, because the structure is more common in Europe, U.S. contractors considering projects abroad may encounter it for the first time. Public-private partnerships raise questions about how risks and liabilities are apportioned among the parties, so contractors may find themselves sharing responsibility for risks that are not typically part of a standard project, or have increased exposures for professional liability.
M&As can impact insurance programs
With the growth of the global construction economy, and the rising need for the development or improvement of infrastructure in emerging economies, an increasingly multinational approach has led to consolidation and merger-and-acquisition activity in the construction marketplace. As this trend continues, companies also need to consolidate their insurance programs to achieve better efficiency by individual lines of business and to meet insurance requirements in different countries.
The takeaway: local risks, global solution
For contractors working in more than one country, maintaining consistent insurance coverage across borders while controlling costs clearly presents a number of challenges. By using a controlled master policy and admitted insurance from local carriers, contractors potentially gain greater insight into their claims trends and an increased ability to identify locations experiencing significant losses. With this information, contractors also will be in a better position to take corrective action and reduce losses.
Finally, while varying insurance regulations and markets must be addressed, contractors should evaluate the insurance carrier, its experience and presence in foreign markets and its relationships with local insurers around the world. When it comes to international construction projects, the right insurance coverage will play a crucial role in long-term success.
To learn more about how to manage global contracting risks, read the ACE whitepaper: “Global Construction: International Opportunities, Local Risks.”
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with ACE Group. The editorial staff of Risk & Insurance had no role in its preparation.