The Great Barry Manilow Coincidence
The Open Mic column in the last issue of CO – July 15th -- was titled “Barry Manilow And Cyber Coverage: Court Writes The Songs For Policyholders.” It addressed an Oregon case concerning cyber/data breach coverage under a CGL policy. A music server was hacked and the identity of all of its users, and the contents of their music libraries, became public on the internet. As a result, it became known that one of its users – a self-proclaimed “tough guy” – had several albums from Barry Manilow, Neil Diamond, Abba and the Carpenters in his library. He filed suit for invasion of privacy and then coverage litigation grew out of that.

Well wouldn’t you know it, on July 15th, the same day that I published “Barry Manilow And Cyber Coverage: Court Writes The Songs For Policyholders,” a New York appeals court issued a decision in Copacabana Realty, LLC v. Fireman’s Fund Insurance Co. I kid you not. Not the day before. Not the day after. The exact same day. What the heck are the odds of that? A gazillion to one I bet. Wow. Even Now I still can’t believe it.

Pollution Liability: Insurance Policy And Public Policy
A New York federal court, addressing an issue of first impression, held in SI Venture Holdings, LLC v. Catlin Specialty Ins., No. 14-2261 (S.D.N.Y. July 10, 2015), that a Pollution Clean Up policy, that requires an insured to seek approval from its insurer, before expending funds for environmental clean-up, is not void as against public policy.

The court explained: “To be sure, if the agreement here did not contain a clause prohibiting Catlin from unreasonably withholding its consent—if Catlin had carte blanche, under the terms of the agreement, to refuse all reasonable requests—a different outcome might well be warranted. In the abstract, SI’s concerns about insurers ‘imped[ing]’ environmental clean-up are certainly valid. In practice, however, there is little reason to think SI’s concerns will materialize. As it stands, Catlin is prohibited—by the very same provision that SI seeks to have invalided—from unreasonably refusing to reimburse an insured party for clean-up costs. As written, the Consent Provision strikes a sensible balance between competing interests. If and when the New York courts consider the question, they may conclude that policy considerations require disrupting this balance. In the absence of further guidance, however, I decline to draw that conclusion here.”

Insurance Coverage And Anger Management
A Wisconsin appeals court held in Szerbowski v. Trinka, No. 2014AP2493 (Wis. Ct. App. July 21, 2015) that no coverage was owed under a homeowner’s policy because bodily injury was not caused by an “occurrence.” The entire case can be described this way: “Puerling’s act of entrusting a handgun to a volatile felon with a known history of drinking problems and a tendency to become belligerent when intoxicated created the means or cause of harm. Szerbowski testified at her deposition that Trinka ‘pretty much’ ‘drank every day.’ Trinka testified that on the day of the shooting, ‘my blood alcohol was, I think, .143, Steve’s was .200, Connie's was .095....’ Trinka’s anger management issues were also uncontroverted, and the record reveals a strained, aggravated relationship between Trinka and Steven. Trinka testified the two were ‘no stranger[s] to arguments prior to this incident,’ and that they were like ‘oil and water’ from ‘day one when I first met him.’ Under these circumstances, giving a handgun to Trinka put in place the conditions for a tragic accident, and bodily injury was hardly unforeseeable. The circuit court correctly determined that Puerling’s act of entrusting the gun to Trinka did not qualify as an accidental occurrence under State Auto’s policy.”