Erik S. Knutsen and Jeffrey W. Stempel
ABSTRACT
Insurers currently constrict coverage for losses involving electronic information in traditional insurance product lines. As a result, insurance customers are driven to the brave new world of non-standardized varieties of cyber-risk insurance policies. That world abounds with coverage gaps as the market for cyber insurance sorts itself out. Until that synchronization of coverage for cyber losses occurs, litigation is bound to occur as the boundaries of coverage remain patchwork and uncertain.
This article examines the degree to which cyber losses differ from other insured losses. The cyber-loss insurance coverage jurisprudence reveals a mishmash of principles and coverage terms that are largely focused on the technology of the loss and not on the nature of the loss insured. Unpredictable and unhelpful analogies have ensued, prompting a highly inefficient coverage marketplace and resulting litigation experience. This article also draws parallels with the market experience of a number of now-commonplace insurance coverage products, like commercial general liability policies, that also went through an initial period of uncertainty. Lessons from those prior insurance experiences are instructive as the wild world of cyber insurance stabilizes.
This article proposes that, to reduce the prevalence of insurance coverage disputes about cyber losses, courts should jettison the “cyber” loss differentiation altogether and instead focus on the nature of the inherent risk insured against, as opposed to the risk’s “cyber” quality. Taking a technologically neutral stance—applying “techno-neutrality” to insurance policy language—can act as a market stabilizer. This approach is preferable to introducing new, untested insurance products or, alternatively, risking arbitrary coverage gaps under traditional product lines. The long-term, more commercially sensible solution is for insurers to simply fold cyber-loss coverage into traditional coverage products and not differentiate losses based on particular or peculiar property characteristics.