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Massachusetts Federal Court Holds No Coverage for Mold and Water Damage Claim

By Brian Margolies

In its recent decision in Clarendon National Ins. Co. v. Philadelphia Indemnity Ins. Co., 2019 WL 134614 (D. Mass. Jan. 8, 2019), the United States District Court for the District of Massachusetts had occasion to consider the application of a prior knowledge provision in the context of a claim for mold and water-related bodily injury and property damage.

Philadelphia insured a condominium property management company under a general liability insurance policy for the period September 1, 2007 through September 1, 2008.  In 2009, the insured was sued by a unit owner alleging bodily injury and property damage resulting from toxic mold conditions resulting from leaks that had been identified in her unit as early as 2004.  Notably, the complaint alleged that mold was identified in 2006 and that repair efforts were undertaken, but that these efforts all proved unsuccessful. Plaintiff alleged that she was forced to vacate her apartment in 2008 as a result of the conditions.

Philadelphia denied coverage to its insured for the underlying suit on several grounds, including a mold exclusion in its policy.  An argument was raised, however, as to coverage for property damage resulting solely from water intrusion, which was not subject to the exclusion.  Philadelphia argued that any such water-related damage was precluded from coverage on the basis of a provision in its policy’s insuring agreement stating that no coverage would be available for any property damage known to exist by the insured prior to the policy’s inception date and that “any continuation, change, or resulting of such … ‘property damage’ … will be deemed to have been known to have occurred at the earliest time when an insured … becomes aware” of such occurrence.

Looking to the allegations in the complaint – that water damage had been identified as early as 2004 – the court agreed that the damage was known by the insured prior to the inception of the Philadelphia policy.  In so concluding, the court rejected the counterargument that the complaint suggested the possibility of new property damage during the policy period given that the insured had undertaken repair efforts after the initial damage was originally identified.  As the court explained, “attempts to remediate the damage, even temporarily successful ones, do not transform the later continuation or recurrence of that very damage into new instances of property damage that would potentially be covered.” 

Nevada Supreme Court Holds Insurer Can Be Liable In Excess of Policy Limits for Breaching Defense

By Brian Margolies

In its recent decision in Century Surety Co. v. Andrew, 2018 WL 6609591 (Nev. Dec. 13, 2018), the Nevada Supreme Court had occasion to consider the damages available to an insured resulting from an insurer’s breach of its defense obligation.

Century insured Blue Streak under a commercial auto policy and was determined to have breached a duty to defend its insured in an underlying personal injury lawsuit arising out of an auto accident.  The lower court concluded that Century improperly relied on extrinsic facts in determining its defense obligation, and that as such, the disclaimer was improper.  The Nevada federal district court nevertheless concluded that while Century breached its defense obligation, its conduct was not in bad faith and that as such, Century’s payment obligation in connection with the resulting judgment was limited to its policy’s limit of liability.

On appeal, however, the question was raised as to whether Century could be liable for consequential damages in excess of its policy’s limit of liability as a “reasonably foreseeable result” of its breach of the duty to defend. This question ultimately was certified to the Nevada Supreme Court.  In considering this question, the Court observed that the majority rule, by far, is that an insurer’s damages for breaching the duty to defend are limited to reimbursement of defense costs and for payment of a resulting judgment or settlement up to policy limits, and only for covered damages, absent some finding of bad faith misconduct. 

The Nevada Supreme Court, however, found the majority rule to lack sufficient protections for insureds.  Citing to commentary in the ALI’s Restatement of Liability Insurance, the Court observed that the minority rule is fairer to insureds since it offers an insured the better opportunity for being made whole as a consequence of the breach of the duty to defend rather than placing “an artificial limit to the insurer’s liability within the policy limits for a breach of its duty to defend.” 

Thus, the Court adopted the rule that when an insurer breaches the duty to defend, it can be held liable for a resulting judgment in excess of its policy limits, irrespective of whether the insurer acted in bad faith.  The Court did, however, place a limit on this outcome by stating that the insured still has the burden of showing that the excess judgment was a consequence of the insurer’s breach and that the insured took all reasonable measures “to protect himself and mitigate his damages.”

Florida Court Holds Securities Exclusion Applicable

By Brian Margolies

In its recent decision in Colorado Boxed Beef Co., Inc. v. Evanston Ins. Co.,2019 WL 77376 (M.D. Fla. Jan. 2, 2019), the United States District Court for the Middle District of Florida had occasion to consider an exclusion in a management liability policy applicable to the purchase and sale of debt or equity securities.

Three individual officers and directors of Evanston’s insured, Colorado Boxed Beef, were named as defendants in a lawsuit for having allegedly made misrepresentations and omissions of materials facts in connection with their purchase of stock from the underlying plaintiff, also an officer of the insured. Numerous causes of action were alleged, including fraud, negligent misrepresentation, breach of fiduciary duty and rescission.

Evanston contended that it had no coverage obligation in connection with the suit on the basis of an exclusion in its policy applicable to claims ““[b]ased upon, arising out of or in any way involving…the actual, alleged or attempted purchase or sale, or offer or solicitation of an offer to purchase or sell, any debt or equity securities[.]” 

The court agreed that the exclusion applied so long as underlying claim “in any way” seeks recovery arising out of the sale of securities. Observing that the entire underlying lawsuit sought to revoke, rescind, or recover damage for the sale of stock to the defendant officers and directors, the court agreed that the exclusion applied.  In so concluding, the court acknowledged that the complaint described some activities that both precedent and continued after the sale of the stock.  The court nevertheless concluded that these allegations were made solely for providing details concerning the alleged misrepresentations and omissions made in connection with the sale.  As the court explained:

 … when read with the underlying complaint, these acts do not stand alone. They are part and parcel of the fraudulent inducement and purchase of the (suing) Sellers’ shares in the company. These purported claims more than “in any way involve” equity security sales, and these claims certainly “arise out of” the Sellers’ quest for SPA rescission and breach damages. … these acts are alleged to be ways the Buyers (Plaintiffs here) cheated the Sellers (Plaintiffs underlying) into taking low value – one of several fiduciary breaches which enabled the rescindable, self-dealing and injurious SPA. These are the very acts by which the securities fraud is alleged to have been accomplished. That the self-dealing might be sued upon by underlying plaintiffs in a separate action does not change what they are: part of the scheme to undervalue the company and cheat the sale price (i.e. “relating in any way to…and arising out of” stock sales).

 

Insurer’s Inadequate Communication with Policyholder Necessitates Trial in $22 Million Bad Faith Case

By Bradley Guldalian

In Wallace Mosley, a minor by and through his co-guardians, Roslyn Weaver & Dina Cellini, Esq., v Progressive American Ins. Co., Case No. 14-cv-62850, 2018 U.S. Dist. LEXIS 199078 (S.D. Fla. Nov. 25, 2018), the Southern District of Florida denied an insurer’s Motion for Summary Judgment in a bad faith claim seeking the recovery of a $22,663,058.00 judgment against its insured holding that questions of fact existed regarding the insurer’s alleged breach of its duty of good faith towards its insured where the insurer tendered its $10,000 insurance policy limits to the claimant’s attorneys in a timely manner but the insured refused to prepare a financial affidavit because he believed, pursuant to his religious and moral beliefs, that he was immune from suit as a sovereign citizen and claimed the affidavit was an “invasion of his privacy.”  In so holding, the court found that even though the insurer sent the insured a letter the insurer had received from the claimant’s attorneys asking the insured to prepare and send a financial affidavit verifying he had no viable assets, a question of fact existed as to whether the insurer acted in good faith because the insurer failed to send any documentation to its insured “explaining in any discernable detail the gravity of the situation” the insured was facing including the probable outcome of the litigation, the possibility that an excess judgment could be entered against him, or of the steps he might take to avoid entry of an excess judgment being entered against him. 

 

Third Circuit Holds No Coverage for Faulty Workmanship Despite Insured’s Expectations

By Brian Margolies

In its recent decision in Frederick Mut. Ins. Co. v. Hall, 2018 U.S. App. LEXIS 31666 (3d Cir. Nov. 8, 2018), the United States Court of Appeals for the Third Circuit had occasion to consider Pennsylvania’s doctrine of reasonable expectations in the context of a faulty workmanship claim.

Hallstone procured a general liability policy from Frederick Mutual to insure its masonry operations. Notably, when purchasing the policy through an insurance broker, Hallstone’s principal stated that he wanted the “maximum” “soup to nuts” coverage for his company.  Hallstone was later sued by a customer for alleged defects in its masonry work.  While Frederick agreed to provide a defense, it also commenced a lawsuit seeking a judicial declaration that its policy excluded coverage for faulty workmanship. The district court agreed that the business risk exclusions applied, but nevertheless found in favor of Hallstone based on the argument that Hallstone had a reasonable expectation that when applying for an insurance policy affording “soup to nuts” coverage, it this would include coverage for faulty workmanship claims.

On appeal, the Third Circuit acknowledged that the reasonable expectations doctrine can overrule policy language when the insured is issued a policy different than what it specifically requested to purchase.  The court nevertheless reasoned that this doctrine did not apply to Hallstone, which generally asked for a broad policy, but not specifically a policy that would insure faulty workmanship claims – a coverage the court acknowledged does not exist.  The pointed out the absurdity of relying on the reasonable expectations doctrine to overcome the policy’s otherwise plain and unambiguous language, observing that “Hall’s claim that he expected Hallstone’s ‘maximum,’ ‘soup to nuts’ liability policy to include workmanship coverage is no more reasonable than if a purchase of auto insurance expected his policy to cover repairs if his car breaks down, even if he asked for ‘soup to nuts’ coverage.”

Wisconsin Supreme Court Holds Fire Damage Resulted from Single Occurrence

By Brian Margolies

In its recent decision in Secura Ins. v. Lyme St. Croix Forest Co., LLC 2018 WI 103 (Oct. 30, 2018), the Wisconsin Supreme Court had occasion to consider whether a forest fire that caused damage to several homes and properties should be considered a single or multiple occurrences.

Secura insured Lyme St. Croix Forest Company under a general liability policy.  Of relevance was the policy’s $500,000 sublimit of coverage for property damage due to fire arising from logging or lumbering operations, subject to a $2 million general policy aggregate limit.  Lyme St. Croix sought coverage under the policy for a fire that resulted from its logging equipment.  The fire lasted for three days, burning nearly 7,500 acres and causing damage to numerous homes and businesses. 

Lyme St. Croix argued, and the trial and appellate courts agreed, that there was a separate occurrence each time the fire spread to a new piece of real property, and that as such, Secura was required to pay up its policy’s full $2 million aggregate rather than a single $500,000 limit of liability.  The appellate court based its decision, in part, on the 2014 Wisconsin Supreme Court decision in Wilson Mut. Ins. Co. v. Falk, 857 N.W.2d 156 (Wis. 2014), where the Court considered the issue of number of occurrences in a situation involving manure runoff from a farm that resulted in contamination of numerous drinking wells.  The FalkCourt rejected the argument that the spreading of manure as a fertilizer was the occurrence, instead concluding that there was an occurrence each time a unique well was contaminated by manure running off of the insured’s property.

Revisiting its decision in Falk, the Wisconsin Supreme Court drew a distinction between runoff that contaminates several wells over a lengthy period of time with a forest fire that consumes multiple properties over a short duration of time. The Court reasoned that in determining number of occurrences questions, “we must take into account elements of time and geography” and that as such, a single occurrence takes place if the “cause and result” are “so simultaneous or closely linked in time and space” as to be considered a single event by the “average person.”  The Court drew a distinction between loss scenario in Falk, which involved seepage of manure over an unspecified period of time, with that of a three-day fire, explaining:

A three-day fire in a discrete area caused by a single precipitating event would reasonably be considered by the average person to be one event. Regardless of how many property lines the fire crossed, the damage closely follows the cause in both time and space.

 

 

Recent Bad Faith Decisions in Florida Raise Concerns

By Michael Kiernan, Lauren Curtis and Ashley Kellgren

The State of Florida has long been known as one of the most challenging jurisdictions for insurance carriers in the context of bad faith – to say the least. Two recent appellate decisions have taken an already difficult environment and seemingly “upped the ante” in what constitutes good faith claims handling in the context of third-party liability claims. Set forth below is an analysis of the Bannon v. Geico Gen. Ins. Co. and Harvey v. Geico Gen. Ins. Co. decisions.

In terms of background and context, for decades, the bad faith standard in Florida, known as the “totality of the circumstances” standard, was set forth in Boston Old Colonial Insurance Company v. Gutierrez, 386 So. 2d 783 (Fla. 1980), where the Florida Supreme Court held:

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The insurer must investigate facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. The question of failure to act in good faith with due regard for the interests of the insured is for the jury.

Id. at 785 (citations omitted). In two recent opinions, the Eleventh Circuit and the Florida Supreme Court weighed in further on what constitutes bad faith in the context of failure to timely tender policy limits.

The first of these opinions is an unpublished opinion issued by the Eleventh Circuit in Bannon v. Geico Gen. Ins. Co., 2018 U.S. App. LEXIS 20204, 2018 WL 3492111 (11th Cir. 2018). The facts of that case are as follows. Geico’s insured was involved in an automobile accident, resulting in serious injuries to the driver of the other vehicle involved.  The accident occurred on October 27 and Geico was advised of the accident on November 2.  Within three days of being placed on notice of the auto accident, Geico noted that the insured was 100% liable and internally flagged the claim due to of the seriousness of the injuries and available limits ($250,000). Nine days after being placed on notice, Geico was advised that the claimant was in a coma, needed brain surgery, required a feeding tube and had other serious injuries.   Over the next several days, Geico sent excess letters to its insureds, and obtained witness statements and information regarding the claimant’s medical bills.  Geico internally authorized the tender of policy limits on day sixteen, but did not tender limits to the clamant until November 22—twenty days after being placed on notice of the claim.  The claimant rejected Geico’s tender and, after years of litigating the underlying negligence claim, a $2.95 million consent judgment was entered.

During the bad faith litigation, the trial court denied Geico’s motion for summary judgment, finding that there were issues of fact as to: (i) whether Geico had an affirmative duty to initiate settlement discussions before November 22; (ii) whether Geico knew that its insured was clearly liable for causing the accident before November 22; and (iii) the question of when Geico knew that the claimant’s injuries were serious and that damages would exceed the policy limit. In light of these issues, the court concluded that it could not find that offering the limits twenty days from first notice of the claim was good faith as a matter of law.  These factual issues were tried to a jury and the jury rendered a verdict in favor of the plaintiffs. Geico filed a motion for a new trial, as well as a renewed motion for judgment as a matter of law—both of which were denied.  In doing so, the trial court reiterated its previous conclusions on summary judgment and noted that the evidence showed that as of November 5, Geico had already assigned 100% liability, and, by November 10, Geico had visited the claimant in the neurosurgical ICU and ordered reserves on the claim to be set at policy limits. Continuing, the court noted that the very next day, Geico advised its insureds that there was a potential for an excess verdict and that it would make every effort to settle the claim within the policy limits. 

Geico appealed the district court’s denial of its renewed motion for judgment as a matter of law and, on appeal, the Eleventh Circuit affirmed the trial court’s determination, finding that a reasonable jury had more than enough evidence to conclude that Geico acted in bad faith, citing to the timeline of events detailed above.

Two months later, the Florida Supreme Court issued a 4-3 decision in Harvey v. Geico General Insurance Co., 2018 Fla. LEXIS 1705, 2018 WL 4496566 (Fla. 2018). The Harvey case involved an automobile accident, which resulted in the death of John Potts, who left behind a surviving wife and three children. The accident occurred on August 8. Two days after the accident, Geico determined that liability was unquestionably adverse to its insured. Three days after accident, Geico sent excess letters to its insured. On August 14, counsel for the claimant contacted Geico and requested a recorded statement from Geico’s insured to determine if he had other insurance and assets—Geico’s claims adjuster denied the request and did not relay the request to the insured. Three days later, on the ninth day after the accident, Geico tendered full policy limits ($100,000).

Over the next several weeks, there were multiple exchanges between Geico and its insured, and Geico and counsel for the claimant regarding the insured’s statement. Ultimately, the insured did not provide a statement, which was allegedly due to Geico’s failure to respond to and relay messages to counsel for the claimant. Geico’s $100,000 insurance check was returned and, two weeks later, suit was filed, resulting in an $8.5 million verdict against the insured.

The insured filed suit against Geico for bad faith and prevailed at trial. On appeal, the Fourth District reversed the trial court’s denial of Geico’s motion for directed verdict, finding that there was insufficient evidence to find Geico in bad faith. The Florida Supreme Court, however, concluded that the Fourth District “went astray,” and held that there was competent, substantial evidence to support the jury’s finding that Geico acted in bad faith in failing to settle the claim against its insured. In reaching this conclusion, the Florida Supreme Court made the following statements regarding the Florida’s bad faith standard:

Florida’s totality of the circumstances test is not a “mere checklist.” 

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An insurer is not absolved of liability simply because it advises its insured of settlement opportunities, the probable outcome of the litigation, and the possibility of an excess judgment.

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[T]he critical inquiry in a bad faith [sic] is whether the insurer diligently, and with the same haste and precision as if it were in the insured’s shoes, worked on the insured’s behalf to avoid an excess judgment.

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In such a case where liability is clear and injuries so serious that an excess judgment is likely … the financial exposure to the insured is a ticking financial time bomb and suit can be filed at any time, any delay in making an offer under the circumstances of this case even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith.

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Bad faith jurisprudence…places the focus of the actions on the insurer – not the insured.

A significant factor in the majority decision appears to be the fact that Geico “dropped the ball” with respect to its insured’s sworn statement—i.e., its initial refusal to allow the insured’s recorded statement and failure to advise the insured of the counsel for the claimant’s request for the recorded statement, as well as its subsequent failure to inform counsel for the claimant that the insured intended to provide a statement. Although Geico had unconditionally tendered policy limits within nine days of the accident, the Court explained that Geico’s tender alone did not relieve it of its obligations to its insured– particularly since it knew the claimant had demanded a statement from the insured as to any additional assets or other insurance. According to the Florida Supreme Court, Geico’s duty to act in good faith “continued through the duration of the claims process.”

The dissenting judges took issue with the majority’s decision to reinstate the jury verdict, noting that, “although Geico’s claims agent handled the claim less than perfectly,” the majority’s decision “muddies the waters between negligence and bad faith and bolsters ‘contrived bad faith claims.’”   Continuing, Justice Canaday explains:

By adopting a negligence standard in all but name, ignoring the controlling conduct of the insured and the third-party claimant, and relying on unsupported assumptions, the majority incentivizes a rush to the courthouse steps by third-party claimants whenever they see what they think is an opportunity to convert an insured’s inadequate policy limits into a limitless policy.

In closing, whether these two opinions are limited to the particular facts of each case, or substantially alter bad faith jurisprudence by effectively adopting a negligence standard, as suggested in the Harvey dissent, is yet to be seen. Nonetheless, it is a virtual certainty that these two cases have “raised the bar” as to what constitutes good faith claims handling. As such, it is imperative that carriers and practitioners alike be very mindful of these decisions.

Florida Supreme Court Rejects Adoption of Daubert Standard

By Bradley T. Guldalian

In Richard Delisle v. Crane Co., __ So. 3d. __, No.: SC16-2182 (Fla., Oct. 15, 2018), the Florida Supreme Court rejected the Florida legislature’s attempt to legislatively adopt the standard for admissibility of expert testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), holding that the legislature’s attempt to codify the Daubert standard in Section 90.702 of the Florida Evidence Code infringed upon the Florida Supreme Court’s rulemaking authority and was unconstitutional. In so holding, the Court reaffirmed that the Frye standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (which requires an expert’s opinion be generally accepted in the relevant scientific community and sufficiently reliable before it is admitted into evidence) remains the law in the State of Florida. Importantly, the Florida Supreme Court noted that the Florida legislature could overrule the Court’s decision and legislatively adopt the Daubert standard so long as the legislature adopts the Daubert standard via a two-thirds vote in both the Florida House of Representatives and the Florida Senate. Given the upcoming election in November, it remains to be seen whether the Florida House of Representatives and the Florida Senate will take up the legislative adoption of the Daubert standard during the next legislative session.

New York Court Holds Radioactive Materials Exclusion Precludes E&O Coverage for Negligent Phase I Report

By Brian Margolies

In its recent decision in Merritt Environmental Consulting Corp. v. Great Divide Ins. Co., 2018 U.S. Dist. LEXIS 175527 (E.D.N.Y. Oct. 10, 2018), the United States District Court for the Eastern District of New York had occasion to consider the application of a radioactive materials exclusion in a professional liability policy.

Great Divide’s insured, Merritt Environmental, was hired as an environmental consultant by a bank in connection with a mortgage refinance of a property located in Westchester County, New York.  Merritt’s responsibility was to prepare a Phase I environmental report concerning the property, which the bank ultimately relied on in agreeing to the refinance. It was later claimed, however, that Merritt’s report failed to document the full extent of the property’s radium and uranium contamination resulting from its use in the Manhattan Project. Merritt was named in two separate lawsuits as a result of its allegedly faulty report, including one by the bank alleging that Merritt negligently prepared its report.

Merritt sought coverage under the professional liability coverage part of a packaged policy issued by Great Divide.  Great Divide denied coverage on the basis of a policy exclusion barring coverage for “any liability of whatever nature arising out of, resulting from, caused by or contributed by … Radioactive contamination however caused, whenever or wherever happening.”

In considering the exclusion, the court observed that under New York law, the phrase “arising out of” is unambiguous and means “originating from, incident to, or having connection with.” The court further observed that the applicability of an “arising out of” exclusion requires only a “but for” causation. The court concluded that this was satisfied since the claims against Merritt would not exist but for the radioactive materials contaminating the property.  It was not relevant to the court that the suit alleged a cause of action against Merritt based on negligence, “because no liability on the part of Merritt, whether by negligence, professional malpractice or any other theory could exist but for the presence of radioactive contamination.”

Florida Court Holds No Duty To Defend Data Breach Claim Under CGL Policy

By Brian Bassett

In St. Paul Fire & Marine Ins. Co. v. Rosen Millennium, 2018 U.S. Dist. LEXIS 173072 (Sept. 28, 2018), the U.S. District Court for the Middle District of Florida held that an insurer owed no duty to defend an insured under a CGL policy where the insured was accused of failing to prevent hackers from accessing credit card information held by the claimant.

St. Paul Fire & Marine Insurance Company (“St. Paul”) issued two consecutive commercial general liability policies to Rosen Millennium (“Millennium”) during 2014 and 2015. Millennium provided data security services for Rosen Hotels & Resorts (“RHR”). In 2016, RHR learned that third party malware caused a credit card breach in one of its hotels between September 2014 and February 2016. RHR alleged Millennium’s negligence caused the breach but has not initiated litigation against Millennium.

Millennium sought coverage for the claim from St. Paul, and St. Paul initiated a declaratory judgment action against Millennium and RHR seeking a finding of no coverage.  The defendants argued that the personal injury coverage of the policy was implicated as a result of the alleged disclosure of credit card information. They also contended that the loss of customers’ use of credit cards was covered “property damage,” and the costs incurred by RHR in complying with notification statutes were covered under the policies.

The court first considered the nature of the underlying claim. Because no underlying litigation existed, the court focused on RHR’s notice of claim and demand letter to Millennium. The only relevant allegation in that letter is that a breach occurred within certain dates and that Millennium “made private information known to third parties that violated a credit card holder’s right of privacy.” RHR’s letter failed to mention property damage or costs incurred from complying with the notification statute. Accordingly, the court held that the issue of whether the policies covered any potential “property damage” and any notification costs is unripe.

The court then examined the issue of whether the third party breach was covered by the St. Paul policies. The definition of “personal injury” in the policies included “[m]aking known to any person or organization covered material that violates a person’s right to privacy.” The parties agreed that credit card information was released upon breach, and they agreed that “making known” material was synonymous with “publication” of material. Citing Innovak International, Inc. v. Hanover Ins. Co., 280 F. Supp. 3d. 1340 (M.D. Fla. 2017), the court held that policy coverage required the insured, rather than a third party, to publish the personal information that is the subject of the claim.  As the breach resulted from third party malware, and not from Millennium’s publication of personal information, RHR’s claim was not covered by the St. Paul policies. The court granted St. Paul’s motion for summary judgment and denied defendants’ motions as moot.