By Michael Menapace, Esq., Wiggin and Dana LLP
After I first wrote right here about insurance coverage protection associated to cryptocurrency theft, I mentioned whether or not these digital belongings have been securities (as steered by the SEC) or property (as steered by the IRS) and the way that may impression insurance coverage protection beneath a typical owners coverage.
I additionally mentioned whether or not the total coverage limits for generic property have been out there for the theft of the belongings or a coverage sublimit for cash would apply.
At the moment, courts had supplied little steerage on the problem, and few conditions have been analogous. In recent times, nevertheless, steerage has emerged, together with from a line of instances that may not seem to have a lot relevance at first look.
Wrestling over “bodily” loss
Almost each appellate court docket within the nation has wrestled with the problem of whether or not financial losses skilled by companies on account of the COVID-19 pandemic have been lined by their industrial property insurance coverage insurance policies. A industrial property coverage usually covers the “bodily” lack of or damages to property. Insurers uniformly denied these enterprise interruption claims and hundreds of companies sued. Courts constantly rejected the companies’ claims for protection as a result of the COVID-19 virus doesn’t change the construction of the insured property, and purely financial losses aren’t “bodily” loss or harm.
Just like the industrial property insurance coverage insurance policies at difficulty within the COVID-19 claims, a typical owners coverage covers the direct bodily lack of lined private property.
In 2021, Ali Sedaghatpour had roughly $170,000 of his cryptocurrency stolen and made a declare beneath his owners insurance coverage coverage. The insurer paid him the $500 restrict for the theft of digital funds, however denied protection for the rest of the loss. The home-owner sued and the federal district court docket for the East District of Virginia dominated in favor of the insurer. Just lately, the US Courtroom of Appeals for the Fourth Circuit affirmed the choice in favor of the insurer. The case was titled Sedaghatpour v. Lemonade Insurance coverage Co. (Case No. 23-1237).
The court docket dominated that the digital theft of the owners’ forex didn’t quantity to direct “bodily” loss and the insurer owed the home-owner nothing greater than the $500 it had already paid. The appellate court docket didn’t disturb different findings by the trial court docket – together with the decrease court docket’s quotation to dictionary definitions of cryptocurrency, which state that cryptocurrency exists “wholly just about”
Wanting forward
Within the Sedaghatpour case, the courts have been making use of Virginia legislation; nevertheless, given the uniform improvement of “bodily loss” all through the nation within the COVID-19 context, I count on different courts across the nation will come to the identical conclusion when the problem of how you can deal with digital belongings comes earlier than them. I likewise observe that some insurers have revised their coverage language to state expressly that the lack of “digital forex” isn’t lined.
These latest court docket instances verify that people proudly owning cryptocurrency ought to take further care to guard their digital belongings and shouldn’t depend on commonplace language in owners insurance coverage insurance policies to hedge towards theft.
Michael Menapace is a Triple-I Non-Resident Scholar, Co-chair of the Insurance coverage Apply Group at Wiggin and Dana LLP, a professor of Insurance coverage Regulation on the Quinnipiac College College of Regulation, and a Fellow of the American Faculty of Protection Counsel.
