Subprime Fallout: Insurance Coverage Battles: Part One

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While the nation's widely known mortgage lenders and issuers of mortgage-backed securities (MBS) are already facing government investigations and numerous lawsuits, the nature of these actions-and the defendants facing them--are expanding every day. Actions have already been filed against subprime lenders, brokers, appraisers, loan issuers, homebuilders, investment funds, bond raters and public companies who invested in MBS. Allegations run the gamut from breach of fiduciary duty, negligent misrepresentation, common law fraud and breach of contract claims to claims of discrimination, civil conspiracy and violations of the Securities Acts of 1933 and 1934, and the Employee Retirement Income Security Act (ERISA).

As varying claims emerge and the number of defendants increases, companies and individuals facing potential liability will look to their insurers for protection. Given the enormous exposure for the insurance industry and the complex factual setting relating to the securitization of subprime loans, there inevitably will be a large number of disputes about the availability of insurance. Because of the size of the claims, many will end up in litigation or arbitration. Some of the most impacted coverages will be directors and officers insurance, errors and omissions insurance, fiduciary liability insurance and commercial general liability insurance. The following are the questions every company should ask.

When Does a Claim Arise?

Most D&O, E&O and fiduciary liability policies are claims made policies requiring a claim during the policy period to trigger the policy obligations. There is a wide variety of definitions of "claim," but most require a written demand or document be presented to the insured. The securities class actions, derivative actions and ERISA actions arising out of the subprime crisis will constitute claims. The most common disputes will be whether inquiries from governmental entities or customers constitute claims.

The first place to look to …