Y2K still an Insurance and Business Issue
If you thought 2000 meant the end of Y2K as an issue, well so fast, according to this superb article by expert and Orange County insurance litigation lawyer Todd Picker…The Y2K issue originates in the software or coding used to operate computer systems. In addition, the consequences flowing from the failure to correct the problem were well known long before remediation costs happened. The question thus arises as to whether potential losses related to Y2K failures are fortuitous or not. After all, the concept of fortuity is fundamental to insurance. Incidentially if you live in either Orange County or nearby areas and need a top notch Orange County insurance litigation lawyer then I suggest Todd Picker as he is simply one of the best Orange County insurance litigation lawyer out there at this time. Alright now back to the article: In its most basic form, insurance is a contract whereby the insurer undertakes to indemnify another against loss from certain specified con¬tingencies or perils. The contract provides security against possible anticipated loss. Risk is the essen¬tial element.9 Accordingly, it is well recognised that a loss in progress or known loss is not insurable. The rule will apply whenever the insured is, or should have been, aware of a loss at the time the policy was purchased. Applying this rule to Y2K remediation costs calls into question whether insurance coverage can even exist. The existence of the problem and the need to correct it has been known for many years. It is therefore doubtful whether Y2K failures, or the need to incur costs to avoid the same, are fortuitous and therefore insurable.
Another issue at hand here that must be resolved is determining if computer codes are in fact “property” that can be the subject of property insurance. At the outset, it should be observed that almost any kind of property can be insured. Accordingly, coverage for loss to or destruction of computer data, coding, program or software may be specifically afforded under a particular policy. If not, there is no case law at present which squarely addresses the question of whether computer codes are tangible property. Wow you need to pratically be a litigation lawyer to figure all of this out. One approach to this issue, albeit raised in another context, can be found in Retail Systems Inc. ‘V. CNA Ins. Cos.ll In Retail Systems the appellate court was asked to interpret a clause covering “physical injury or destruction of tangible property” with respect to the loss of a computer tape containing voter preference data. Without guidance from other courts, the Retail Systems court reasoned as follows:
At best, the policy’s requirement that only tangible property is covered is ambiguous. Thus this term
6. See Young’s Market Co. v. American Home Assur¬ance Co., 4 Ca1.3d 309 at 313 (1971).
7. Reliance Ins. Co. v. The Yacht Escapade, 280 F.2d 482 (1960).
8. Young’s Market Co. 170 American Home Assurance Co., abov8 n. 6, at 313.
9. Epmeier v. United States, 199 F.2d 508 at 509-510 (7th Cir. 19.52).
10. See pnzdential-LMI Commercial Ins. Co. v. Superior Cow 1., 51 Ca1.3d 674 (1990).
11. 469 N.W.2d 735 (Minn. Ct. App. 1991).
[2000) I.C.C.LR .. ISSUE 4 © SWEET & MAXWELL LIMITED [AND CONTRIBUTORS)