Case May Provide Additional Coverage for BIPA Claims

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On March 8, 2022, the United States District Court Northern District of Illinois denied an insurer their motion for summary judgment indicating the employment practices exclusion within their policy did not necessarily preclude coverage for a Biometric Information Privacy Act (BIPA) style claim. Although a jury will ultimately decide the matter, there are implications that could open defense and indemnity coverage to employers under their commercial general liability policies. Illinois employers faced with BIPA claims should provide timely notification to their commercial general liability insurers to avoid late notice problems.

Let's take a look at three key takeaways.

1. Current Case Law

Recent Illinois case law has found that coverage for a BIPA loss can potentially be triggered under a commercial general liability policy. This case law places a duty to defend the requirement upon the insurer unless they can point to exclusionary language in the policy, which would otherwise preclude coverage.

2. Review All Coverages

When faced with a BIPA claim, employers should review the coverage language in all of their liability policies. It is possible that coverage for such actions may lie in one or possibly multiple policies.

3. Give Timely Notice

Many policies apply conditions as to when a formal notice of claim must be submitted. A failure to adhere to these conditions could act to your detriment and potentially vitiate coverage. Making a timely notification to all applicable insurers will provide you with one less hurdle to overcome when attempting to argue for coverage.

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