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Bi-Economy and Panasia: A Differing View
Policyholder counsel have heralded the recent New York Court of Appeals' decisions in Bi-Economy and Panasia as victories for insureds due to the court's recognition, in certain circumstances, of claims for consequential damages beyond the limits of an insurance policy. See Damages Beyond the Policy Limits, by Robin L. Cohen, Joseph D. Jean, Rachel Wrightson, and Jared Zola ('Policyholders Article'), The Insurance Coverage Law Bulletin, Vol. 7, no. 5 (June 2008). Some may even view these decisions as an invitation by the State's highest court to bring traditional bad faith claims against insurers. However, a close reading of the majority opinions in these cases demonstrates that the Court of Appeals has taken only a tentative step in the direction of allowing claims under New York law for damages beyond policy limits. Based on the analytical construct used by the court to address the policyholders' claims in these cases, insurers have several avenues to challenge the application of these holdings to future cases and may ultimately limit these decisions to the specific facts under which they were decided.
Background
New York courts have traditionally refused to recognize a tort cause of action for bad faith handling of insurance claims. See American Nat'l Fire Ins. Co. v. Murasco, Inc., 143 F. Supp. 2d 372, 377 (S.D.N.Y. 2001) (stating that New York does not recognize a separate claim for bad faith denial of insurance claims). For example, in Rocanova v. Equitable Life Assurance Society of the United States, 83 N.Y.2d 603 (1994), and New York University v. Continental Insurance Company, 87 N.Y.2d 308 (1995), the New York Court of Appeals held that a bad faith failure by an insurer to pay a claim, without more, was insufficient to justify an award of punitive damages. Rather, punitive damages were only available for breach of an insurance contract if the plaintiff was able to demonstrate both 'egregious tortious conduct' directed at the insured as well as 'a pattern of similar conduct directed at the public generally[.]' Rocanova, 83 NY2d at 613; NYU, 87 NY2d at 316. Under this traditional analysis, insurance policies are viewed as contracts for the payment of money only and the damages available for an insurer's failure to pay or provide benefits are limited to the amount of the policy and interest.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?