Cyber shield

Five Pitfalls of Cybersecurity Insurance: Lessons from the United States

April 24, 2017 | Ruth E. Promislow and Ethan Z. Schiff

Given the increasing threat of cyberattacks and the corresponding costs, businesses are increasingly considering cybersecurity insurance.  But insurance is only as effective as the scope of the coverage. Though Canadian courts have not yet interpreted insurance policies in the cybersecurity context, American cases highlight five noteworthy pitfalls.

1. Coverage Denied Because the Insured Did Not Comply with Underlying Obligations

Just as health coverage may be contingent upon the insured maintaining a healthy lifestyle, cybersecurity insurance may be contingent upon the insured meeting certain technical standards. In Columbia Casualty Co v Cottage Health System, the insurer denied coverage and alleged that the insured failed to comply with required “procedures and risk controls”, which imposed an obligation to “follow minimum required practices”.

2. Coverage Denied Because the Incorrect Party Was Injured

In P.F. Chang’s v Federal Insurance Co, the insured (P.F. Chang’s) made a claim on its insurance due to a data breach resulting in stolen records belonging to its customers. P.F. Chang’s did not suffer an injury. The court concluded that the relevant insurance policy did not cover P.F. Chang’s because the policy required that the claimant suffer an injury. The policy at issue was marketed as “a flexible insurance solution designed by cyber risk experts to address the full breadth of risks associated with doing business in today’s technology-dependent world."

3. Coverage Denied Because the Incorrect Party Caused the Injury

In Zurich American Insurance Co v Sony Corp of America et al,1 Sony made a claim on its insurance for defence and indemnification due to losses resulting from a data breach by criminal hackers. The policy provided coverage for “oral or written publication in any manner of the material that violates a person’s right of privacy.” The court held, however, that the policy only provided coverage if Sony published the material itself. Since the hackers published the material, Zurich had no obligation to indemnify Sony.

4. Coverage Denied Because the Cyber Activity Was Merely Incidental

Cybersecurity insurance may only provide coverage if the loss clearly results from cyber activity. In Apache Corp v Great American Insurance Company, the insured became the victim of fraud after an employee wrongfully determined that a known vendor’s telephone and email request to transfer money was authentic. The request turned out to be fraudulent and the insured reimbursed the vendor. The insured made a claim based on its insurance which covered for “loss of, and loss from damage to, money, securities and other property resulting directly from the use of any computer to fraudulently cause a transfer…”. The court held that the circumstances were not covered because the computer use was not the direct result of the loss, but rather was “merely incidental”.

5. Coverage Denied Because the Litigation Was Outside the Scope of Covered Claims

Insurance may provide coverage for certain claims to the exclusion of others. In Travelers Property Casualty Company of America v Federal Recovery Services Inc, the insured made a claim based on costs incurred for litigation resulting from a tort claim for intentional misuse of its data storage activities. The insurer denied the claim because the policy only provided coverage if the loss was caused by “any error, omission or negligent act.” The court held that the lawsuit against the insured for “knowledge, willfulness, and malice” was outside the scope of the coverage.

Conclusion

The United States case law highlights the importance of understanding your company's risks and vulnerabilities in order to define the precise scope of cybersecurity insurance required.  A risk and vulnerability assessment is a critical component to establishing an overall cybersecurity plan that will mitigate risk and corresponding damages. 

The Bennett Jones Cybersecurity team is available to assist.

 

Notes:

1 2014 NY Misc LEXIS 5141.


Promislow Ruth

Ruth E. Promislow
Partner
Commercial Litigation, Fraud and Cybersecurity Lawyer at Bennett Jones Toronto

Ruth Promislow practises commercial litigation with a strong focus on commercial crime, including cybersecurity, investment fraud, employee fraud and anti-money laundering. Ruth also focuses on cannabis-related litigation. [...]

Schiff Ethan

Ethan Z. Schiff
Associate
Commercial Litigation Lawyer at Bennett Jones Toronto

Ethan Schiff has a general commercial litigation practice. [...]