Insurance Law Alert

November 2021

In This Issue
New York Court Of Appeals Rules That SEC Settlement Payment Is Not An
Uninsurable Penalty
Reversing an intermediate appellate court decision, the New York Court of Appeals ruled thata $140 million settlement payment to the Securities and Exchange Commission was not an
uninsurable penalty. J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., No. 61 (N.Y. Nov. 23, 2021).
(Click here for full article)

Virginia Court Rules That Bump Up Exclusion Does Not Bar Coverage For
Underlying Settlements“Renowned in themarket as accomplishedtrial lawyers and coverageexperts who offer quality
representation to clients in theinsurance industry.”–Chambers USA
2021

A Virginia district court granted a policyholder’s summary judgment motion, finding that abump up exclusion did not unambiguously exclude coverage for underlying settlements andmust therefore be construed narrowly in favor of coverage. Towers Watson & Co. v. National
Union Fire Ins. Co. of Pittsburgh, PA, 2021 WL 4555188 (E.D. Va. Oct. 5, 2021). (Click here forfull article)

Tenth Circuit Rules That TCPA Damages And Injunctive Relief Are
Uninsurable Penalties Under Colorado Law
The Tenth Circuit affirmed a Colorado district court decision holding that an insurer had no
duty to defend or indemnify claims that DISH Network violated the Telephone Consumer
Protection Act because relief under the statute constitutes an uninsurable penalty rather thancovered damages. Nat’l Union Fire Ins. Co. of Pittsburgh v. DISH Network, LLC, 2021 WL
5066571 (10th Cir. Nov. 2, 2021). (Click here for full article)

Reversing Trial Court, Ohio Appellate Court Rules That Ransomware
Attack May Trigger Insurance Coverage
An Ohio appellate court ruled that a trial court erred in granting an insurer’s summary
judgment motion and that issues of fact existed as to whether a ransomware attack on thepolicyholder’s computer system triggered coverage under a business owner’s policy. EMOI
Services, LLC v. Owners Ins. Co., 2021 WL 5144828 (Ohio App. Ct. Nov. 5, 2021). (Click here
for full article)

Absent Prejudice, Insurer May Not Deny Coverage Under Claims-Made
Policy Where Notice Was Late, But Within Policy Period, Says New
Hampshire Court
Addressing a matter of first impression under New Hampshire law, a federal district court
ruled that an insurer may not deny coverage under a claims-made policy where notice waslate, but within the policy period, and the insurer did not suffer prejudice from the delay. TRT
Dev. Co., Inc. v. ACE Am. Ins. Co., 2021 WL 4777240 (D.N.H. Oct. 13, 2021). (Click here forfull article)

Simpson Thacher & Bartlett LLP

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Wisconsin Court Rules That Filed-Rate Doctrine Bars All Claims Against
Long-Term Care Insurer
A Wisconsin district court applied the filed-rate doctrine to bar class action claims alleging
breach of contract, breach of the covenant of good faith and fair dealing and common law
fraud. French v. Northwestern Mut. Life Ins. Co., 2021 WL 5162646 (E.D. Wisc. Nov. 5, 2021).
(Click here for full article)

Sixth Circuit Rejects Coverage Claim Under Communicable Disease
Provision
The Sixth Circuit ruled that a communicable disease and water-borne pathogen provision did
not provide coverage for a policyholder’s COVID-19-related business losses. Dakota Girls, LLC
v. Philadelphia Indem. Ins. Co., No. 21-3245 (6th Cir. Nov. 5, 2021). (Click here for full article)

California Appellate Court Affirms Dismissal Of Business Income And
Civil Authority Coverage Claims
The first California appellate court held that a hotel operator was not entitled to insurance
coverage for its COVID-19-related business losses. The Inns by the Sea v. Cal. Mut. Ins. Co.,
2021 WL 5298480 (Cal. Ct. App. 4th Dist. Nov. 15, 2021). (Click here for full article)

Missouri Jury Rules That Insurer Did Not Breach Contract By Denying
Coverage For COVID-19 Claims
A Missouri jury found in an insurer’s favor, finding that it did not breach an insurance policyby refusing to cover business losses incurred by the policyholder in the wake of government
shutdown orders. K.C. Hopps, Ltd. v. Cincinnati Ins. Co., No. 20-437 (W.D. Mo. Oct. 28,2021). (Click here for full article)2

D&O Alerts:
New York Court Of Appeals Rules
That SEC Settlement Payment Is
Not An Uninsurable Penalty
Reversing an intermediate appellate court
decision, the New York Court of Appeals ruledthat a $140 million settlement payment to the
Securities and Exchange Commission (“SEC”)
was not an uninsurable penalty. J.P. Morgan
Sec. Inc. v. Vigilant Ins. Co., No. 61 (N.Y. Nov.
23, 2021).
The insurance dispute arose out of asettlement between the SEC and Bear Stearns& Co. Under the settlement, Bear Stearns
agreed to pay $160 million as “disgorgement”
and $90 million as a civil penalty inconnection with deceptive trading claims.
When Bear Stearns sought indemnification
for $140 million of the disgorgement portionof the settlement (it did not seek coverage
for $20 million of the payment), its insurers
denied coverage on the basis that thedisgorgement payment was uninsurable as amatter of public policy.
A New York trial court ruled that thedisgorgement payment was a covered “loss”
under the policy because it represented thirdparty gains. An appellate court reversed,
ruling that the disgorgement payment was
not a covered “loss,” defined by the operative
liability policy to exclude “fines or penalties
imposed by law.” (See September 2018 Alert).
The appellate court relied on the UnitedStates Supreme Court’s ruling in Kokesh v.
S.E.C., 137 S. Ct. 1635 (2017), which classified
SEC disgorgement payments as penalties
rather than losses in the context of a statute oflimitations dispute.
This month, the New York Court of Appeals
reversed, finding that the insurers failed
to meet their burden of establishing thatthe $140 million payment was an excluded“penalty imposed by law.” The court
explained that a penalty is distinct fromcompensatory and punitive damages in that it
is “not measured by the losses caused by thewrongdoing.” Relying on the content of thecommunications between Bear Stearns andthe SEC, including the valuations of investors’
injuries, the court concluded that the record
established that the payment “was calculated
based on wrongfully obtained profits as ameasure of the harm or damages caused by

the alleged wrongdoing.” The court contrasted
the disgorgement payment from the $90
million penalty, “which was not derived fromany estimate of harm or gain flowing from theimproper trading practices.”
Finally, the court rejected the appellate
court’s reasoning that the disgorgement
payment must be considered a penalty under
Kokesh. The court explained:
Kokesh does not control here. Initially,
the Supreme Court was not interpretingthe term “penalty” in an insurance
contract (much less one governedby New York law) and, as we havecautioned, the meaning of that term
may vary based on context. Indeed,
the Supreme Court has since clarified
that SEC-ordered disgorgement is
not always properly characterized asa penalty insofar as the SEC may seek
“disgorgement” of a defendant’s net gain
for compensatory purposes as “equitablerelief” in civil actions. Moreover,
Kokesh—decided nearly two decades
after the parties’ executed the relevant
insurance contracts—could not haveinformed the parties’ understandingof the meaning of the term “penalty.”(Citations omitted).

Virginia Court Rules That Bump Up
Exclusion Does Not Bar Coverage
For Underlying Settlements
A Virginia district court granted apolicyholder’s summary judgment motion,
finding that a bump up exclusion did
not unambiguously exclude coverage forunderlying settlements and must therefore
be construed narrowly in favor of coverage.
Towers Watson & Co. v. National Union Fire
Ins. Co. of Pittsburgh, PA, 2021 WL 4555188(E.D. Va. Oct. 5, 2021).
Two suits were brought against thepolicyholder after it completed a corporatetransaction. One suit alleged violations of theproxy solicitation rules of the Securities andExchange Act and claimed that shareholders
had received consideration lower than
the true value of their shares based onomissions and misrepresentations in theproxy materials. The other, a consolidated
shareholder derivative action, alleged breachof fiduciary duty based on the same factual
allegations as the first suit. The insurers
acknowledged that the actions were “Claims”
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under the relevant policies and agreed toadvance defense costs. However, they denied
coverage for the underlying $90 million
settlements, arguing that a bump up exclusion
applied. The court disagreed and ruled in thepolicyholder’s favor.
The exclusion barred coverage for judgments
or settlements stemming from a claim that“the price or consideration paid or proposed
to be paid for the acquisition or completionof the acquisition of all or substantially all
the ownership interest in or assets of anentity is inadequate.” The court concluded
that ambiguity existed as to whether thetransaction at issue, consummated througha merger, constituted an “acquisition” underthe exclusion.
The court reasoned that an acquisition iscommonly associated with “the takeoverof one company by another, with bothcompanies surviving the transaction, as
opposed to a merger, which contemplates
the combination of two companies into asingle entity, with shared ownership by theshareholders of both participating entities.”
Moreover, the court explained that thestructure of the transaction at issue—a“triangular merger involving a qualified stock
purchase”—was “hardly comparable to thestraightforward takeover of one company
by another suggested by the Bump Up
Exclusion.” Finally, even though Virginia law
governed the dispute, the court noted that
Delaware corporate law recognizes a merger
as a “distinct type of business combination,with procedural requirements and substantive
law consequences dissimilar and distinct
from other types of ‘acquisition techniques’
involving the transfer of stock or assets.”

Coverage Alert:
Tenth Circuit Rules That TCPA
Damages And Injunctive Relief
Are Uninsurable Penalties Under
Colorado Law
The Tenth Circuit affirmed a Colorado district
court decision holding that an insurer had no
duty to defend or indemnify claims that DISH
Network violated the Telephone Consumer
Protection Act (“TCPA”) because relief under
the statute constitutes an uninsurable penalty
rather than covered damages. Nat’l Union
Fire Ins. Co. of Pittsburgh v. DISH Network,
LLC, 2021 WL 5066571 (10th Cir. Nov.
2, 2021).
The United States and several states sued
DISH, alleging violations of the TCPA basedon the company’s solicitation calls to potential
customers. The suits sought statutory
damages and injunctive relief to prevent
future violations. National Union soughta declaration that it had no duty to defend
or indemnify the claims under its umbrella
policies. A Colorado district court granted
summary judgment to National Union andthe Tenth Circuit affirmed.
The Tenth Circuit ruled that TCPA statutory
damages are a “penalty” under Colorado law
and thus uninsurable as a matter of Colorado
public policy. In so ruling, the court reliedon ACE Am. Ins. Co. v. DISH Network, LLC
883 F.3d 881 (10th Cir. 2018) (discussed in
our March 2018 Alert), in which coverage
for TCPA damages was similarly denied. The
Tenth Circuit rejected DISH’s assertion thatACE was abrogated by a Colorado Supreme
Court decision which held that statutory relief
for an unreasonable delay or denial of benefits
is not a “penalty” for statute of limitations
purposes and that the test for determining
whether statutory relief is a “penalty” must
be based on legislative intent rather than thecommon law test used in ACE.
In addition, the Tenth Circuit ruled that
National Union had no duty to defend
claims for prospective relief because its
policies did not cover the costs of preventing
future harms. The court expressly rejected
DISH’s contention that policy language
covering expenses it was legally obligatedto pay “by reason of liability imposed bylaw” encompassed the cost of preventing
future harms.
4Cyber Alert:
Reversing Trial Court, Ohio
Appellate Court Rules That
Ransomware Attack May Trigger
Insurance Coverage
An Ohio appellate court ruled that a trial
court erred in granting an insurer’s summary
judgment motion and that issues of fact
existed as to whether a ransomware attack on
the policyholder’s computer system triggeredcoverage under a business owner’s policy.
EMOI Services, LLC v. Owners Ins. Co., 2021
WL 5144828 (Ohio App. Ct. Nov. 5, 2021).
EMOI, a medical billing service provider,
was the victim of a ransomware attack.
EMOI ultimately paid the hacker and sought
coverage from Owners. The insurer denied
coverage, noting that a Data Compromise
endorsement explicitly precluded coverage forransomware payments and that an Electronic
Equipment endorsement did not apply
because it required “direct physical loss ordamage.” A trial court agreed and dismissed
the suit. The trial court reasoned that there
was no physical loss because even assumingthat EMOI’s software was damaged while it
was encrypted by the hackers, it became fully
functional once the ransom payment was
made. The appellate court reversed.
The Electronic Equipment endorsement
covered “direct physical loss of or damage to‘media.’” It defined “media” as “materials on
which information is recorded such as film,
magnetic tape, paper tape, disks, drums, andcards.” It further stated that “media” includes“computer software and reproduction of datacontained on covered media.”Viewing the evidence in a light most favorable
to EMOI, the court ruled that the company’s
computer servers may be considered “media”
under the policy because they “constituted
materials on which EMOI’s information
was recorded.” Additionally, the court ruledthat EMOI had raised an issue of fact as towhether its software incurred “direct physicaldamage.” In particular, the court notedthat the record established that portions of
the software remained unusable even after
decryption.
The court rejected Owners’ contention thatsoftware and data “have no physical existence
and thus are not susceptible to physical loss

or damage.” The court emphasized that thepolicy did not include the term “tangible” inreferring to physical loss and deemed thatomission significant. It also relied on Nat’l Ink& Stitch, LLC v. State Farm Auto Prop. & Cas.
Ins. Co., 435 F. Supp.3d 679 (D. Md. 2020)(discussed in our January 2020 Alert), in
which the court ruled that the loss of data andimpairment of a computer system resulting
from a ransomware attack constituted
direct physical loss where the policy listed“data” as a category of covered property
and used the term “software” in a coverage
provision heading.

Notice Alert:
Absent Prejudice, Insurer May Not
Deny Coverage Under Claims-Made
Policy Where Notice Was Late, But
Within Policy Period, Says New
Hampshire Court
Addressing a matter of first impression under
New Hampshire law, a federal district court
ruled that an insurer may not deny coverage
under a claims-made policy where notice
was late, but within the policy period, andthe insurer did not suffer prejudice from thedelay. TRT Dev. Co., Inc. v. ACE Am. Ins. Co.,
2021 WL 4777240 (D.N.H. Oct. 13, 2021).
A hotel discovered an oil leak near its fuelstorage tank, and promptly contacted local
authorities. However, the hotel did not notify
its insurer until twenty-two days later, which
was within the policy period, but not within
the seven-day notice period applicable to a“storage tank incident.” The insurer denied
coverage based on the insured’s failure tocomply with the seven-day notice provision.
In ensuing litigation, the court granted
the hotel’s summary judgment motion,
predicting that the New Hampshire Supreme5

Court would require an insurer to show
prejudice where, as here, notice is late undera time-specific provision, but within thepolicy period.
The court distinguished cases in which
insureds failed to provide notice under aclaims-made policy within the policy period,
explaining that prejudice is not required inthose scenarios because doing so “effectively
expands the policy’s grant of coverage.” In
contrast, here “ACE had yet to ‘close thebooks’ on the Policy because the policy
period was still in effect when the incident
was reported” and thus “excusing late notice
would not rewrite a fundamental term of theinsurance contract and expand the scopeof coverage.”
As the court noted, decisions in otherjurisdictions are mixed. While some courts
have held that a claims-made insurer must
establish prejudice when an insured notifies itof a claim within the policy period but outside
a time period specified in the policy, others
have refused to apply a notice-prejudice rule
under such circumstances.

Filed-Rate Alert:
Wisconsin Court Rules That
Filed-Rate Doctrine Bars All Claims
Against Long-Term Care Insurer
Last month’s Alert reported on a Washington
Supreme Court decision holding that the
filed-rate doctrine can bar suits againstintermediaries who do not file rates. That
decision emphasized the broad scope of thedoctrine to any claim for which damages are
based on a filed rate. This month, a Wisconsin
district court applied the doctrine to bar classaction claims alleging breach of contract,
breach of the covenant of good faith and fairdealing and common law fraud. French v.

Northwestern Mut. Life Ins. Co., 2021 WL
5162646 (E.D. Wisc. Nov. 5, 2021).
The plaintiff class consisted of individuals
who had purchased long-term care policies
from Northwestern. The policy stated that
it was “guaranteed renewable for life upontimely payments of premiums for the lifeof the Insured and can neither be cancelled
nor have its terms, other than premiums,
changed by the Company. Premiums may
be changed by class.” In 2016, Northwestern
filed a request with the Texas Department of
Insurance (“TDI”) for an average premium
rate increase of 86 percent. The TDI approved
a 62 percent average rate increase andNorthwestern subsequently implemented that
increase in accordance with a plan provided
to the TDI. Thereafter, plaintiffs sued,
alleging that the substantial increase was partof a scheme to “drive policyholders off theirplans” after many years of premium payments
and thus relieve Northwestern of its duty toprovide contractual benefits.
The court dismissed the suit, ruling that
under Texas law, the filed-rate doctrine
warranted dismissal of all claims. In
particular, the court explained that the TDI’s
approval of Northwestern’s rate increase,
as well as its continued oversight of theimplementation of rate increases, is precisely
the type of regulatory conduct that triggers
the filed-rate doctrine. The court rejected
the plaintiffs’ contention that the filed-rate
doctrine does not apply where, as here, aninsurer allegedly misled regulators about
policy terms, noting that the “doctrine is
not subject to equitable considerations.”
Similarly, the court held that even if theplaintiffs were not directly challenging therates themselves, but rather Northwestern’s
allegedly illicit behavior that precipitatedthose rates, the filed-rate doctrine
nonetheless applied.

COVID-19 Alerts:
Sixth Circuit Rejects Coverage
Claim Under Communicable
Disease Provision
The Sixth Circuit ruled that a communicabledisease and water-borne pathogen provision
did not provide coverage for a policyholder’s
COVID-19-related business losses. Dakota

6

Girls, LLC v. Philadelphia Indem. Ins. Co.,
No. 21-3245 (6th Cir. Nov. 5, 2021).
Dakota, a private preschool company,sought coverage for losses incurred during
the government shutdown period underfour policy provisions: (1) business andpersonal property; (2) business income;(3) civil authority; and (4) communicabledisease and water-borne pathogens. An Ohio
district court dismissed the suit and Dakota
appealed. While the appeal was pending, theSixth Circuit issued a decision foreclosing
coverage under the first three provisions.
See Santo’s Italian Café v. Acuity Ins. Co., 15
F.4th 398 (6th Cir. 2021) (discussed in our
September 2021 Alert). The sole remaining
issue in the present appeal was whether thecommunicable disease and water-borne
pathogen provision provided coverage. The
Sixth Circuit ruled that it did not.

Alternatively, the Sixth Circuit held that even
if Dakota alleged “actual illness,” its claims
would nonetheless fail because it did notplead that the statewide shutdown order was“due directly” to an outbreak at its schools.
In recent months, federal appellate courtsin the Eighth, Ninth and Eleventh Circuits
have similarly upheld district court dismissalsof COVID-19 coverage suits. Appeals are
currently pending in the First, Second, Fifth,
Seventh and Tenth Circuits.

California Appellate Court Affirms
Dismissal Of Business Income And
Civil Authority Coverage Claims
The first California appellate court held thata hotel operator was not entitled to insurance
coverage for its COVID-19-related businesslosses. The Inns by the Sea v. Cal. Mut. Ins.
Co., 2021 WL 5298480 (Cal. Ct. App. 4th Dist.
Nov. 15, 2021).
The hotel operator sought coverage forbusiness losses incurred after the state issued
various shutdown orders aimed at slowing
the spread of COVID-19. The insurer denied
coverage based on the lack of “direct physicalloss of or damage to” property. A trial court
dismissed the claims and the appellate
court affirmed.

The provision covered loss resulting froma government shutdown “due directly toan outbreak of a communicable diseaseor water-borne pathogen that causes anactual illness at the described premises.”
Dakota argued that this provision had “twodistinct triggers” for coverage—either any
communicable disease-related shutdown
order (regardless of actual illness at insured
premises), or an order due directly to awater-borne pathogen that causes an actual
illness at the insured premises. The court
deemed this interpretation unreasonable,
noting that Dakota “never explains, much lessconvincingly so, why the drafters would havemade one coverage trigger super-broad andthe other super narrow.” Instead, the court
ruled that the provision required Dakota
to plausibly plead an “actual illness” at theinsured premises from either a communicabledisease or water-borne pathogen. Because
Dakota made no such allegations, the court
held that there could be no coverage.

The appellate court held that the complaint
did not allege that the hotel’s operations weresuspended because of direct physical damage
to insured property. The court noted thatthe complaint was “vague” as to the actual
presence of the virus on insured property, but
held that even assuming that the complaint
alleged (or could be amended to allege) that
infected individuals were present at insured
property, there would be no coverage.
The court explained that the hotel’s losses
were caused by shut down orders issued in
response to viral presence throughout several
counties—not because the virus was present
at the insured premises. The court stated:
The lack of causal connection between
the alleged physical presence of the virus
on Inn’s premises and the suspension ofInn’s operation can best be understoodby considering what would have takenplace if Inns had thoroughly sterilized its
premises to remove any trace of the virus
after the Orders were issued. In thatcase, Inns would still have continued to7

incur a suspension of operations because
the orders would still have been in effectand the normal functioning of society
still would have been curtailed. . . . ‘[T]heproperty did not change. The world
around it did.’ (Citations omitted).
The court distinguished cases in which thepresence of asbestos or harmful fumes washeld to constitute direct physical damage,noting that those cases involved property thatwas uninhabitable or unusable because of aphysical force on the premises, not becauseof orders aimed at general surrounding
conditions.
In addition, the court ruled that the hotel’soperations were not suspended due to direct
physical loss of insured property. A loss ofuse of property, standing alone, does notamount to a direct physical loss of property
under common law or policy language, thecourt held.
The court expressly rejected the hotel’scontention that the absence of a virus
exclusion in the policy should be consideredprima facie proof that the insurer intended
to provide coverage for virus-related losses.
The court explained that the absence ofan exclusion cannot create ambiguity inotherwise clear policy language.
Finally, the court ruled that civil authority
coverage was not available based on theabsence of allegations of direct physical lossof or damage to property, other than theinsured property. The court reasoned thatthe government orders were expressly issued
to slow the spread of COVID-19, and not in
response to any direct physical loss or damage
at a particular location.

Missouri Jury Rules That Insurer
Did Not Breach Contract By
Denying Coverage For COVID-19
ClaimsOur October 2021 Alert reported on a
Missouri federal court decision that granted
in part and denied in part an insurer’ssummary judgment motion in a suit seeking
coverage for COVID-19-related businesslosses. K.C. Hopps, Ltd. v. Cincinnati Ins. Co.,
2021 WL 4302834 (W.D. Mo. Sept. 21, 2021).
The court dismissed the policyholder’s civil
authority claims, but allowed the businessincome claims to proceed to trial, finding that
there were issues of fact as to the existenceof “direct physical damage” to insured
property based on potential contaminationof COVID-19. Last month, a jury found in
the insurer’s favor in this case, finding that it
did not breach the policy by refusing to coverbusiness losses incurred by the policyholder
in the wake of government shutdown orders.
K.C. Hopps, Ltd. v. Cincinnati Ins. Co., No.
20-437 (W.D. Mo. Oct. 28, 2021).

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Simpson Thacher has been an international leader in the practice of insurance and reinsurance law for
more than a quarter of a century. Our insurance litigation team practices worldwide.

Mary Beth Forshaw+1-212-455-2846
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trobinson@stblaw.com

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irethy@stblaw.com

This edition of the Insurance Law
Alert was prepared byBryce L. Friedman / +1-212-455-2235
bfriedman@stblaw.com and
Joshua Polster / +1-212-455-2266
joshua.polster@stblaw.com
with contributions by Karen Cestarikcestari@stblaw.com.

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