Law360
October 11, 2018
"4 Important Insurance Decisions You May Have Missed"

Tyler Gerking commented on the St. Paul Fire & Marine Insurance Co. v. Rosen Millennium decision.

In the article Mr. Gerking said the order represents a judicial trend of courts interpreting the terms “publication” or “making known” narrowly in data breach coverage cases. Judge Mendoza and other jurists have ruled against policyholders in these cases by inserting an extra requirement that the insured itself be the one who publishes the sensitive information.

“Even interpreting the words narrowly, I don’t think they’re getting to the right result,” Mr. Gerking said. “They are ignoring the insured’s alleged role in allowing the information to be made known to a third party. The insured here is alleged to have had an active role in the publication of the information, by failing to secure it.”

He added, “There is a line of cases that is going against policyholders, however wrong they may be, so policyholders shouldn’t assume that they will have coverage for data breaches under a CGL policy and should be looking at cyber coverage.” 

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