Photo of Dennis Cusack

Dennis Cusack has devoted his legal career to recovering money owed to companies and individuals under commercial and professional liability and property insurance policies, including general liability, aviation, technology errors and omissions, cyber liability, directors and officers, professional liability, employment practices and commercial property.  He has chaired Farella Braun + Martel’s Insurance Recovery Group since 2008.

Are You Ready? roadsignWe first began studying the implications of self-driving cars, or “AVs”, two years ago. At that time, observers predicted that fully autonomous “Level 5” cars (i.e., a car with no steering wheel) would not appear in significant numbers until 2030. In 2015, Lux Research observed:

Fully autonomous driving may happen by 2030, but only in highly restricted environments and likely only at low speeds.

That prediction now appears to be well off-target. The world may not be ready for the pace at which AVs come to dominate city streets. Continue Reading The Future Has Arrived for Self-Driving Cars

people talking in front of a courthouseAre communications among a client, a third party, such as an insurance broker, and the client’s attorney privileged? The answer is yes, if the communications are confidential and reasonably necessary to accomplish the purpose for which the lawyer was consulted. Behunin v. Superior Court, 2017 WL 977095 (2d Dist. March 14, 2017), decided last week, addresses this question. Continue Reading Communications With Your Broker May Be Privileged

workers comp formIn two previous posts, on April 19, 2016 and June 21, 2016, we reported on the EquityComp workers’ compensation program offered by Berkshire Hathaway subsidiaries Applied Underwriters (Applied) and California Insurance Company (CIC). In the wake of the California Insurance Commissioner’s ruling in Shasta Linen that the EquityComp program is invalid and unenforceable, Applied Underwriters and the Commissioner on September 6, 2016 stipulated to a Cease and Desist Order. The Order can be found online here: Stipulated Consent Cease and Desist Order. Insureds under the program should read it carefully, as it presents them with a number of options.  Continue Reading NEW UPDATE: Is Your Workers’ Compensation Program Unlawful?

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I wrote an article for Risk Management discussing the Federal Aviation Administration’s long-awaited regulations for commercial drones weighing 55 pounds or less and the insurance coverage available to address drone risks. Insurance is widely available, but careful attention should be paid to differences in policy language. Also, expect insurers to incorporate features of the new regulations in their underwriting approach.

You can read the full article on Risk Management‘s website: FAA Clears Drones for Takeoff

shutterstock_223838977 Are You ReadyIt’s a good time to insulate your wine business against getting burned or shaken up in a disaster.

The California wildfire season is well underway. Only a year ago, the Lake County fire destroyed hundreds of homes, thousands of acres and threatened vineyards and wineries. A recent report on climate change predicts that wildfires in the western U.S. and Canada will become more frequent and severe. And the Napa earthquake — only two years ago as of Aug. 24 — reminded us of another constant danger for California residents and businesses, particularly those with costly products like wine in tanks, barrels and bottles.

In the face of these risks, you can take steps now to be sure you have the right insurance and are prepared to get the most out of it if the worst happens.

Continue Reading Insurance for Wildfires and Other Natural Disasters

The crash of a vehicle operating in semi-autonomous or fully autonomous mode presents a headline-grabbing opportunity to question the technology and the pace at which it is being introduced. Every accident resulting in injury or death is a tragedy. In the case of new technology that offers the possibility of dramatically reducing the total number of injuries and deaths, it will be important to look at any individual crash in the context of the overall promise of the technology. For example, it will be important to know how many miles of autonomous driving took place before the first crash occurred and compare that to ordinary cars, where the national average is one fatality every 94 million miles, and the worldwide average is a fatality every 60 million miles.

For our purposes, a crash also presents a scenario for how liability and insurance issues may play out as these cars and trucks start appearing on the road in greater numbers. We’ll walk through what won’t change, and the few things that might. Continue Reading Autonomous Vehicles: A Case Study of Liability and Insurance

Under a ruling this week from the California Insurance Commissioner, your company may be insured under an unenforceable workers’ compensation program. You may also be entitled to a refund of premiums paid to California Insurance Company (CIC) and Applied Underwriters (Applied), two Berkshire Hathaway subsidiaries.

Our April 19, 2016 post discussed a decision from the California Department of Insurance finding that the EquityComp workers’ compensation program sold to Shasta Linen Supply by CIC and Applied is void as an unfiled collateral agreement. CIC appealed the administrative law judge’s decision finding the program void. Shasta appealed the denial of its claim for reimbursement of all sums in excess of actual claims paid. On June 20, 2016, the California Insurance Commissioner affirmed the ALJ’s decisions. Continue Reading UPDATE: Is Your Workers’ Compensation Program Unlawful?

Employers continue to face a wave of lawsuits alleging violations of various “wage and hour” statutes (overtime pay, meal and rest breaks, etc.).  Employment liability insurers have uniformly denied coverage for these claims and have tightened applicable exclusions.  Some insurers now offer wage and hour coverage, but these policies and endorsements usually provide only very restricted defense cost coverage.  A new source of coverage now exists, courtesy not of insurers but of revisions to the California Labor Code.

New Labor Code §558.1, effective January 1, 2016, appears to create individual liability for violation of California’s wage and hour statutes.  Continue Reading New Law May Create Coverage for Wage and Hour Claims

A popular workers compensation insurance program offered by Berkshire Hathaway subsidiaries Applied Underwriters Captive Risk Assurance Company (Applied Underwriters) and California Insurance Company may be in trouble. On January 21, 2016, the California Insurance Commissioner adopted an administrative decision finding that a critical piece of the program had not been submitted for approval and was therefore void. Any company now insured under this program should carefully monitor developments and consider alternative options for workers compensation insurance. Continue Reading Is Your Workers Compensation Program Unlawful?

Recently, I was asked to look at coverage for a case where the insurer had denied a duty to defend several years before. We concluded that the insurer should have been defending based on certain allegations in the complaint and asked it to reconsider. In the meantime, though, a successful partial summary judgment motion had dismissed the only covered claims. There is good law to suggest that the duty to defend should continue, but the client could have avoided an unnecessary fight had she retained coverage counsel at the outset. Continue Reading Leave It to the Policyholder Professionals – Do Not Try This at Home