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Corrected: An earlier version of this story misstated the amount of the court award.
A federal district court in St. Paul, Minnesota, has ruled that a Hanover Insurance Group Inc. unit must pay at least $148,000 under a cyber business interruption and extra expense clause in its policy to a software company that fell victim to a scam.
In December 2019, an unknown bad actor gained access to an accountant’s email account at St. Louis Park, Minnesota-based Fishbowl Solutions Inc., a technical consulting and software development company, according to Thursday’s ruling in Fishbowl Solution Inc. v. The Hanover Insurance Co.
The intrusion led to Fishbowl client Owatonna, Minnesota-based Federated Mutual Insurance Co. paying two Fishbowl invoices totaling $176,962 in December 2019, of which Federated recovered $29,078 with the U.S. Secret Service’s help, according to the ruling.
After Hanover denied coverage under its technology professional liability policy, Fishbowl filed suit against it seeking a declaratory judgment that its loss was covered under the cyber clause, the unrecovered amount Federated had paid, plus attorney’s fees and prejudgment interest.
In ruling the loss was covered under the policy, the court said Fishbowl’s policy covered net income that would have been earned or incurred if there had not been an impairment or denial of “business operations” because of a covered “data breach.”
The definition of “’business operations’ encompasses Fishbowl’s communication with, and invoicing of its clients,” the ruling said. As to whether it sustained a loss of “business income,” Hanover’s property claims director admitted the company sustained an “actual loss of business income,” the decision said, in ruling in the policyholder’s favor.
The ruling gives Fishbowl until Nov. 17 to submit a brief as to whether it is also entitled to prejudgment interest and/or attorneys fees in the case.
Attorneys in the case did not respond to requests for comment.
Policyholder Scott Godes, a partner with Barnes & Thornburg LLP in Washington, who is not involved in the case, said, “It’s a great decision for policyholders.”
“It’s thoughtful, it’s reasoned and it should be seen as persuasive for matters like this,” he said.
A federal appeals court last week affirmed a lower court and ruled in Hanover Insurance Co.’s favor, holding that a lawsuit filed by a sports brokerage whose chief financial officer had allegedly embezzled from it was filed too late.