The Law Division of the Cook County Circuit Court rang in the New Year with a new HIPAA Qualified Protective Order (QPO) following Judge John Ehrlich’s memorandum opinion in Shull v. Ellis, No. 15 L 9759. The New HIPAA QPO requires a party claiming personal injury to consent to an explicit waiver for other parties, including insurance companies, to use that party’s private health information (PHI). The Health Insurance Portability and Accountability Act (“HIPAA”) does not apply to property and casualty insurance companies. However, the Cook County Law Division’s new HIPAA Qualified Protective Order will affect property and casualty insurance companies in the following ways:
1. Property and Casualty Insurance Companies Must Comply with the HIPAA Qualified Protective Order.
Judge Ehrlich clarified that HIPAA does not apply to property and casualty insurance companies, but did not shy away from pointing out that property and casualty insurers are subject to “privacy provisions” in the Illinois Insurance Code and the Illinois Administrative Code. For example, Article XL of the Illinois Insurance Code includes a provision regarding the consent to disclosure authorization forms (215 ILCS 5/1007), as well as various penalties for its violators. The Illinois Administrative Code similarly imposes regulations of PHI by requiring insurance companies to maintain PHI for at least seven years and by allowing for the disposal of PHI when not needed under certain circumstances.
Judge Ehrlich further noted that the Illinois State Constitution (Ill. Const., art. I, Sec. 6) provides “constitutional privacy protections for health information.”
Thus, under Judge Ehrlich’s memorandum opinion, insurance companies are entitled to use, but must protect under the provisions of HIPAA, a claimant’s PHI which the insurance company obtains during insurance defense litigation.
2. The New HIPAA Qualified Protective Order Contains an “Explicit Waiver”
The New HIPAA Qualified Protective Order is lengthy and descriptive and looks more similar to a HIPAA form at a hospital than the old HIPAA Qualified Protective Order. The old HIPAA Qualified Protective Order narrowly stated PHI could be used by insurance defense counsel “in any manner reasonably connected with the . . . litigation” and further provided that insurance defendants must destroy PHI when no longer needed in litigation.
This language in the old HIPAA QPO was misleading and conflicted with the duty of insurance companies to “maintain a complete record of all books, records and accounts.” 215 ILCS 5/133. Therefore, Judge Ehrlich “concluded that a simple but comprehensive remedy comes in the form of a redrafted HIPAA QPO containing an explicit waiver executed by the person whose PHI will be disclosed.”
Now, the new HIPAA QPO provides explicit references to the use of PHI by insurance companies, including for purposes ranging from “adjusting” to “[s]tatistical information gathering” and “actuarial calculation.”
3. The HIPAA QPO Recognizes the Right of Insurance Companies to Use PHI
In formulating his decision, Judge Ehrlich acknowledged that “the use of records is vital to the insurance industry and the state’s regulation of it.” He went even further in stating “State. Farm is unquestionably correct that there exists a compelling state interest for insurers to review, use, and retain a plaintiff’s PHI.”
In fact, the HIPAA Protective Order provides that one of its underlying goals is to allow insurance companies to comply with other regulations regarding PHI and to “[f]urther the interest of the State of Illinois in regulating the business of insurance.”
4. Claimant’s Case can be Dismissed if she Does Not Agree to the New HIPAA QPO
If a claimant refuses to agree to a HIPAA QPO, then the court may impose sanctions on the claimant under Illinois Supreme Court Rule 219, including payment of attorney’s fees or having a claimant barred from testifying, or even dismissal of claimant’s complaint.
5. A HIPAA QPO is Not Required Outside of Litigation
A HIPAA QPO is only required where the claimant affected by the release of PHI is engaged in litigation. Judge Ehrlich clarified this issue and stated, “This court does not address the scenario in which a person at the pre-suit stage voluntarily discloses the same information to an insurer in hopes of settling a claim.” Nonetheless, it is important for insurers to ensure compliance with any applicable federal or state law regarding the use and safekeeping of PHI.
For questions about this topic or any other Insurance Defense topics, contact Paul Steinhofer or Jim Cook at McKenna Storer.
Those working in insurance defense litigation are familiar with bad faith claims which can arise when insurers breach the duty to act in good faith when responding to settlement offers. According to the Illinois Supreme Court: “The ‘duty to settle’ arises because the policyholder has relinquished defense of the suit to the insurer. The policyholder depends upon the insurer to conduct the defense properly. In these cases, the policyholder has no contractual remedy because the policy does not specifically define the liability insurer’s duty when responding to settlement offers. The duty was imposed to deal with the specific problems of claim settlement abuses by liability insurers where the policy holder has no contractual remedy.” Cramer v. Insurance Exchange Agency, 174 Ill.2d 513, 526, 675 N.E.2d 897 (Ill. 1996).
“To sustain a cause of action for bad faith because of an insurer’s breach of the duty to settle, the plaintiff must allege: 1) the duty to settle arose; 2) the insurer breached the duty; and 3) the breach caused injury to the insured. A plaintiff must allege sufficient facts to demonstrate the existence of the duty to settle in good faith. A sufficient pleading of facts to establish this duty includes “when a claim has been made against the insured and there is a reasonable probability of recovery in excess of the policy limits and a reasonable probability of a finding of liability against the insured.” The duty does not arise until a third party demands settlement within the policy limits.” Powell v. American Service Insurance Co., 2014 IL App (1st) 123643 at 18, citing Haddick v. Valor Insurance, 198 Ill.2d 409, 416-417, 763 N.E.2d 299 (Ill. 2001).
In Haddick, the bad faith claim arose from a single car accident which resulted in the death of one of the people in the car. The car owner had insurance coveragefor $20,000 per person. The owner of the car survived the accident, initially stating that he was the driver of the vehicle, only to state later that he did not remember the accident and did not remember who was driving the vehicle. The decedent’s medical bills from the accident totaled $82,544.80. The decedent’s attorney made a demand for settlement, and the insurer responded that it would discuss settlement after it received the police report. After receiving the police report, the insurer put off settlement discussions while an investigation into who was driving the vehicle was pending. The decedent filed a wrongful death action and a policy limit demand was made. The insurer responded that the demand was premature due to its investigation into the accident. One year after the accident, the insurer offered to settle the case for the policy limits which the decedent’s estate refused. A motion for summary judgment in favor of the decedent’s estate was granted and a judgment for $150,924.80 entered in favor of the estate.
The decedent’s estate filed a bad faith claim against the insurer alleging that the insurer failed to settle the claim within the policy limits. The court found that the insurer was aware the decedent’s medical bills exceeded $20,000 in liability coverage at the time it received the estate’s demand for the policy limits. The insurer knew the owner of the vehicle and that the police report showed that the owner of the car had informed the emergency room doctor that he was driving at the time of the accident. Even though he later said he did not recall who was driving, the proof of ownership raises a presumption that the owner of the vehicle was in control of it at the time of the accident. The alleged facts demonstrated a reasonable probability of recovery in excess of the policy limits and a reasonable probability of a finding of liability against the driver. Powell v. American Service Insurance Company, 2014 IL App (1st) 123643.
The “reasonable probability” standard set forth in Haddick requires pleading facts that demonstrate liability is “probable” as opposed to merely “possible.” In other words, Haddack requires the pleading of facts which show that liability is at least more likely than not, but not necessarily a certainty. The fact that the insurance company was unsuccessful in the trial of a case does not show that its defense was made in bad faith. Further, the Haddick court made clear that the reasonable probability standard applies at the time of the settlement demand, because that is when the duty to settle arises. Powell, 2014 IL App (1st) 123643, 36-42. It is important in an insurance defense practice, whether representing the insurance company or a litigant with a bad faith claim, to know the pleading standards for bad faith causes of action.
The laws and court decisions pertaining to bad faith claims against insurance carriers require the talents of attorneys well-versed in this area of law to provide knowledgeable and skilled insurance defense. For more information about this topic, contact Kelly Purkey at McKenna Storer.
This post was originally published at https://www.mckenna-law.com/blog/insurance-defense-bad-faith-actions-requirements-plead-reasonable-probability-standard/
Employers too often take the approach that they do not have to worry about the National Labor Relations Act, most commonly called the NLRA, because they are not a ‘union shop.’ It is a short-sighted view. While the NLRA is most-often applied to protect union activities, employees who are not represented by a union also have rights under the NLRA.
The NLRA provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157.
Specifically, Section 7 of the NLRA protects the rights of all employees, union and non-union, to engage in “concerted activity”, which occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Employees who are not represented by a union also have rights under the NLRA
The NLRA website provides a few examples of protected concerted activities, such as:
Two or more employees addressing their employer about improving their pay. Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other. An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.
But protective activities may also include:
Bringing a group’s complaints to management. Complaining to management as a group. Initiating discussions with a group of employees about a term or condition of employment. Discussing terms and conditions of employment with a group of employees. Critically discussing other co-worker’s or supervisors’ performance with other co-workers.
So long as these activities are concerted action for the mutual aid or protection of the group regarding the “terms and conditions” of employment, the activities are protected by the NLRA.
With this in mind, employers are required to listen to their employees’ valid collective concerns regarding their terms and condition of employment, including pay, hours, safety and benefits. By the same token, employers are not permitted to taunt, threaten or take adverse action against employees for collectively voicing their concerns.
Best practices are to listen to employees with an open mind to try to achieve a mutually beneficial resolution that not only comports with the law but also creates a positive company culture.
As an employer, our attorneys who specialize in employee relations can help you navigate that minefield with practical and workable policies and procedures to ensure legal compliance and reduce employment-related risk. Contact Kristin Tauras at McKenna Storer for information about this topic or any other employee relations matters.
In Illinois insurance coverage actions, an insurer can be estopped from asserting any policy defenses to coverage if the insurance company fails to take proper action. The general rule of estoppel provides that an insurer taking the position that a complaint potentially alleging coverage under a policy that includes a duty to defend may not simply refuse to defend the insured by declaring it not to be covered under the policy. Rather, the insurer has two options: (1) defend the suit under a reservation of rights or (2) seek a declaratory judgment that coverage does not exist. If the insurer fails to take either of these steps and is later found to have wrongfully denied coverage, the insurer is estopped from raising policy defenses to coverage. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 150 (1999).
The estoppel doctrine has deep roots in Illinois jurisprudence. It arose out of the recognition that an insurer’s duty to defend under a liability insurance policy is so fundamental an obligation that a breach of that duty constitutes a repudiation of the contract. Although the doctrine also has roots in the principle of equitable estoppel, a review of the case law reveals that it has since developed into a distinct doctrine that stands on its own. Id. at 151.
The doctrine of estoppel applies only where an insurer has breached its duty to defend. Therefore, a court inquires whether the insurer had a duty to defend and whether it breached that duty. Application of the estoppel doctrine is not appropriate if the insurer had no duty to defend or if the insurer’s duty to defend was not properly triggered. These circumstances include where the insurer was given no opportunity to defend; where there was no insurance policy in existence; and where, when the policy and the compliant are compared, there clearly was no coverage or potential for coverage. Id.
Once the insurer has breached its duty to defend, however, the estoppel doctrine has broad application and operates to bar the insurer from raising policy defenses to coverage. This would include those defenses that may have been successful had the insurer not breached its duty to defend. Id. at 152.
It is very important under Illinois insurance coverage law for insurers not to refuse to defend an insured when the insurer believes there is no coverage. Otherwise, the insurer could later be estopped from any policy defenses to coverage. If there is no insurance coverage for a claim, then the insurer must either defend under a reservation of rights or deny coverage and file a declaratory judgment action to avoid being estopped from asserting policy defenses to insurance coverage.
Insurance carriers and their litigation defense attorneys must be mindful of estoppel and plan their defense strategies accordingly. For more information on this and other topics related to insurance defense, contact Kelly Purkey at McKenna Storer.
This post was originally published at https://www.mckenna-law.com/blog/insurers-can-avoid-estoppel-insurance-coverage-cases/
On January 8, 2018, VTech Electronics Limited (VTech) agreed to settle charges brought by the Federal Trade Commission (FTC) that the company violated U.S. children’s privacy law. As part of the settlement, VTech agreed to pay a $650,000 civil penalty, refrain from further violation of the law, and implement a comprehensive data security compliance program. This is the FTC’s first children’s privacy case involving internet-connected toys, but as we have highlighted in our previous blog on the topic, the FTC is aware of the privacy issues related to these types of toys and will surely pursue more of these cases in the future. Therefore, examining this case will be useful for COPPA-covered companies.
In the VTech complaint, the FTC alleged that the Kid Connect app used with VTech toys collected personal information of children without either providing direct notice to parents or obtaining verifiable consent from parents, concerning VTech’s information collection practices. Direct notice or verifiable consent is required by the Children’s Online Privacy Protection Act (COPPA). The FTC further alleged that VTech failed to use reasonable and appropriate data security measures to protect the personal information it gathered. Specifically, the company did not take steps such as implementing an intrusion prevention or detection system to alert it to unauthorized access. These violations came to light during the FTC’s investigation into a 2015 data breach of VTech’s system that exposed the personal data of parents and children using the Kid Connect app.
As is common in FTC cases, the settlement with VTech involves both a monetary judgment and corrective tasks. First, VTech is required to pay a $650,000 civil penalty to the United States government. In addition, VTech is permanently prohibited from violating COPPA and from misrepresenting its security and privacy practices. VTech also must implement a comprehensive data security program that will be subject to independent audits for the next twenty years.
6 Lessons For Internet-Connected Toy About Data Security Compliance
Companies can learn from the mistakes made by VTech to ensure they do not encounter similar problems in the future. The FTC highlighted these mistakes, and the corresponding lessons to learn from them as follows:
The complaint alleges that VTech failed to develop, implement, and maintain a comprehensive information security program. If your company’s program is stashed away in a file somewhere, remember that COPPA makes security a “living” process. It could be time to revisit your program in light of changes to your business and the evolving threat landscape.
The complaint alleges that VTech failed to implement adequate measures to segment and protect its live website from the test environment. That concern should sound familiar to businesses that have been following the FTC’s Start with Security and Stick with Securityinitiatives. Effective network segmentation could help stop an “oops” from developing into a full-blown “uh-oh.”
The complaint alleges that VTech failed to have an intrusion detection system. If the burglar alarm went off at your home or workplace, you’d switch into high alert. For years now, FTC cases and guidance to businesses suggest a similar response to unauthorized network access. Careful companies have a system in place to warn them about digital trespassers.
The complaint alleges that VTech failed to monitor unauthorized attempts to exfiltrate personal information. Would you know if an intruder was attempting a grab-and-go on your network? There are tools that can alert you when someone is trying to transfer large amounts of data.
The complaint alleges that VTech failed to complete vulnerability and penetration testing to see how its network could stand up to well-known vulnerabilities like SQL injection. There’s no way to make a network 100% hack-proof, but as Start with Security and Stick with Security suggest, there are steps you can take to protect sensitive data from oldies-but-baddies like SQL injection attacks.
The complaint alleges that VTech failed to implement reasonable guidance or training for its employees. Security-conscious companies have a secret weapon in the fight to safeguard sensitive data: a well-trained workforce. Whether or not your company is covered by COPPA, have you incorporated security throughout your business? Are your employees clear on your expectations?
Additionally, as we wrote back in July, the FTC has provided a 6-Step COPPA Compliance Plan that all COPPA-covered businesses should consult.
The case against VTech was the first of its kind for the FTC, but certainly won’t be its last. Companies that are subject to the requirements of COPPA should learn from this case to better position themselves for the future. If you have any questions regarding COPPA compliance, or any data privacy and security matter, please contact Tim Hayes, data privacy and security attorney at McKenna Storer.
We often see people with service dogs on the street, in the stores, and on trains and it appears as if the number is growing. People with disabilities use a service dog in order to fully participate in everyday life. Service animals perform tasks such as helping a vision impaired individual get around, to alerting a hearing loss person of what is out of sight, to providing physical stability to ambulate to even helping a person during a medical crises.
The Americans with Disabilities Act (ADA) applies to service animals. Under the ADA, “[i]ndividuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.” 28 C.F.R. § 35.136(g). Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities.
Dogs (and Miniature Horses) Can Be Service Animals.
Under the ADA, a service animal is defined as a “dog” that has been individually trained to do work or perform tasks for an individual with a disability and states that the task(s) performed by the dog must be directly related to the person's disability:
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
28 C.F.R. § 35.104.
With a few exceptions, Title II of the Americans with Disabilities Act requires public entities to permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go. 28 C.F.R. § 35.136(g).
As stated above, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. 28 C.F.R. § 35.104.
The ADA does not restrict the type of dog breeds that can be service animals. A service animal may not be excluded from ADA protection based on assumptions or stereotypes about the animal's breed or how the animal might behave.
Even though not included in the definition of a service animal, the more recent ADA regulations extend protections to the use of miniature horses. Businesses must make reasonable modifications in policies, practices and procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. 28 CFR 35.136(i)(1)
In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider--
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
Emotioanl Support Animals Are Not Covered By
In general, "Emotional support animals", "therapy dogs", "comfort dogs" and "companion dogs" are not considered service animals that fall under Title II's mandate. 28 C.F.R. § 35.104. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA. Nevertheless, some states do allow emotional support animals.
An exception to this arises if the "emotional support dogs" actually performs psychiatric services. The ADA makes a distinction between psychiatric service animals and emotional support animals. If, for example, the dog is trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, the dog would qualify as a service animal under 28 C.F.R. § 35.104.. In contrast, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.
Public Accommodations May Only Ask Two Questions
The ADA does not require service animals to wear a vest, ID tag, or specific harness. The situation often arises in public accommodation where it is not obvious whether a dog is a service dog or an emotional support animal. In situations where it is not obvious if a dog is a service animal, employees of a public entity are permitted to ask if the dog is a service animal required because of a disability, and what work or task the dog has been trained to perform. 28 C.F.R. § 35.136(f).
Under the regulations, the public accommodation employee may ask only two specific questions:
(1) Is the dog a service animal required because of a disability? and
(2) What work or task has the dog been trained to perform?
28 C.F.R. § 35.136(f) Staff are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability. 28 C.F.R. § 35.136(f). They also may not inquire when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability). 28 C.F.R. § 35.136(f).
Dogs In Training Are Not Covered By The ADA
People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program. The ADA does not extend to dogs that are in training. The dog must already be trained before it can be taken into public places; however, some state or local laws cover animals that are still in training.
Service Animals Must Be Under The Care Of Its Handlers
The ADA requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. If a service animal is out of control and the handler does not take effective action to control it, staff may request that the animal be removed from the premises.
Covered Entities Must Accommodate Service Dogs
In most cases, the public facility must allow the individual and the service animal all the same rights as a person without a service dog. 28 C.F.R. § 35136(g). The ADA requires that all covered entities (state and local government agencies, businesses, and non-profit organizations that provide goods or services to the public) make "reasonable modifications" in their policies, practices, or procedures to accommodate people with disabilities. 28 C.F.R. § 36.302(c)(1). Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities.
Under the ADA, “[i]ndividuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.” 28 C.F.R. § 35.136(g).
The government ADA website provides additional information and guidance regarding specific locations where service animals are routinely present.
The ADA public accommodation most often arises with service animals in restaurants. Under ADA, service animals in restaurants, are allowed to sit in the dining room with their handlers and must be allowed to accompany their handlers to and through self-service food lines. Seating, food, and drink are provided for customer use only. The ADA gives a person with a disability the right to be accompanied by his or her service animal, but covered entities are not required to allow an animal to sit on a seat or be fed at the table.
Another common issue arises with service animals in hotels. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to "pet-friendly" rooms and hotels are not permitted to charge guests for cleaning the hair or dander shed by a service animal. If the service animal causes damage to the guest room, the hotel is permitted to charge the guest the same way it would any other guest of the hotel for damage.
Usually, service animals must be allowed in patient rooms and anywhere else in the hospital the public and patients are allowed to go. They cannot exclude a patient's service animal on the basis that the staff can provide the same services. An exception exists if the handler is unable to care for the animal and does not have anyone to care for the animals' needs; in that situation, the hospital must allow the patient to make other arrangements or assist with providing an alternate arrangement for the service animal.
The dog must stay on the floor, or the person must carry the dog.
In health clubs:
The ADA does not override public health rules that prohibit dogs in swimming pools. The service animals are allowed in all areas where the public is allowed to go, including the pool deck.
In religious institutions:
Religious institutions and organizations are specifically exempt from the ADA. Some states have laws that may protect service dogs in religious organization locations.
The ADA does not apply to airlines. The Air Carrier Access Act is the Federal law that protects the rights of people with disabilities in air travel and extends its protection to service animals.
Allowing Access Does Not Include Care For Service Animals
The public facility has no obligation to supervise, care for, supervise, feed, clean up after or provide veterinary care. The handler of the service animal is responsible for all care and supervision. 28 C.F.R. § 35.136(f)
Best Practices For Employers
Make your employees aware that the ADA extends to protecting the use of service animals. The cases oftentimes arise because the employee is not aware of the law and inadvertently asks too many questions or states a blanket exclusion that animals are not permitted. A little education will go a long way to assure that your company is complying with this ADA requirement.
Contact Kristin Tauras at McKenna Storer for questions about this topic or any other ADA, Employment policy or Employment law concerns or questions.
Whether there is insurance coverage for a loss known by the insured prior to purchasing an insurance policy depends on several factual issues. By its very nature, insurance is fundamentally based on contingent risks which may or may not occur. One dictionary defines “insurance” as “a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.” The risk ceases to be contingent and becomes a probable or known loss when the insured knows or has reason to know when purchasing a commercial general liability policy that there is a substantial probability that it will suffer or has already suffered a loss. Under such circumstances, the loss is uninsurable under that policy unless the insurer otherwise agrees because the “risk of liability is no longer unknown.” Therefore, the insurer has no duty to defend or indemnify the insured with respect to the known loss unless the parties intended the known loss to be covered. Outboard Marine Corporation v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 103-104 (Ill. 1992) (citations omitted).
There is no bright line test to determine whether and at what point in time the insured knew or had reason to know of the substantial probability of the loss at issue. The extent of the insured’s knowledge of the loss must be determined on a case-by-case basis. In a motion for summary judgment, the court must determine whether any factual questions exist with respect to the insured’s knowledge at the time it bought each policy. If the court finds there is no question of fact, the issue is one of law for the court to decide. Id. at 104.
In resolving a factual issue regarding the level of the insured’s knowledge, the insurers do not need to prove that the insured knew or had reason to know of the exact nature and extent of the loss or that a loss or liability was certain to occur. Rather, the known loss doctrine may be invoked if the insurers demonstrate that the insured knew, or had reason to know, at the time it purchased the commercial general liability policy, that a probable loss or liability would occur. Id. at 107.
Like many aspects of insurance coverage law, whether a loss qualifies as a known loss depends on the facts of each specific case. However, a known loss can potentially lead to a legitimate denial of insurance coverage.