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Precisely when cyberattacks are not covered under the Lloyd’s of London war exclusion for cyber policies may only be determined after years of litigation.
“Litigation will certainly happen, particularly around the question of attribution,” said Kyle Bryant, New York-based managing director and chief underwriting officer international for Resilience Cyber Insurance Solutions.
“It’s an uncertain area of law. We’ve seen courts go in a variety of different directions with respect to clauses like this in the past,” said Alex Iftimie, a partner with Morrison & Foerster LLP in San Francisco.
“The cyber insurance market isn’t something that’s been around for 40 or 50 years, so a lot of these are new issues of first impression,” without robust case law that addresses them, said Jennifer Beckage of the Buffalo, New York-based Beckage Firm PLLC.
At least some litigation may be filed because of war exclusions that differ from Lloyd’s that are on the same coverage tower.
Litigation “is not unusual when you have a nonconcurrent tower,” said Michael S. Levine, a partner with Hunton Andrews Kurth LLP in Washington.
“The language varies as you go up the tower and that often leads to problems,” he said. A subtle difference between policies, such as a comma, can “end up being the impetus for huge litigation.”
Dan Palardy, New York-based lead actuary for Cowbell Cyber Inc., said there is a broader movement toward overall uniformity in the insurance market, including in cyber insurance.