Some Significant & Representative Cyber Insurance Cases:  Second Period & Its Dénouement

There are not very many reported cyberinsurance cases, as was already noted in my account of the First Period, PartI,  published today. There areplenty of civil (and criminal cases) about the so-called cyber-world, butdirect, focused, coverage, or similar, cases are very few in number—almost nonein the Twentieth Century.   There aremore in the early Twenty First Century, but as they have evolved, the topics ofthose cases are probably passé.  I havealready spelled some of this out in Part I.There are many more cases now; thatarises from (1) the exponential growth of computer technology, following whatis called “Moore’s Law”—something which is not a scientific (or any other kindof )law at all, (2) the increasing number of diverse insurance policiesoffered, sold  and bought, and (3) thegrowth of the market’s need for cyber-lawyers.Category (3) to a degree of certainty vastly exceeding that of  Moore’s Law, where the market wantstransactional lawyers, it will need litigation lawyers.

I.Some Cases ofthe “Second Period”

1.  Netscapev. Federal [i]The first caseto be discussed,  NetscapeCommunications Corp. v. Federal

Ins.Co.,2007 WL 2972924 (N.D.Cal., October 10, 2007), reversed and remanded,

343 Fed. Appx. 271 (9thCir.  2009) [Parallel Cite: 2011 WL2634945]. will be of

continuingimportance, even though it is in certain ways not amongst the most important.(After all, it is not in the “first cut” ofWest’s Reported Cases.)Nevertheless it is frequently cited, and it’s focus of “of the times.”

Inso-called real world policies, there is something called “Coverage B.” It’smost recognized habitat is in the CGL policy, though it is now in manypolicies. It is entitled and called “Personal Injury and Advertising Liability”coverage, and the “Personal Injury” component covers at least some  events as false arrest, malicious prosecution,wrongful entry, some defamations, and some violations of privacy, while“advertising injury” covers other defamations, product disparagement,misappropriation of advertising ideas, copyright, patent, and/or trademarkviolations.  Some of these injuries gotsubtracted over time; some were (at least in effect) added; and some werechanged. Patent violations are a paradigm of a subtraction.

Fairly obviously some of these fit into theso-called cyber-world perfectlyTosome degree privacy, and related topics, may now be the most important coveragearea ripe for coverage disputes.  So ascopyright violations. As are trademark infringements.

This case is not the firstquasi-reported cyber-world case, it is not at the highest level reported, noris it the most cited case. It is important because the district court recitesthe facts in some detail; applies legal reasoning taken from the so-calledreal-world, and then makes historically significant reversible error regardingsemantic reasoning.  Finally, itssignificance seems to have been generally misunderstood.America Online (AOL) and its subsidiaryNetscape Communications Corporation sued Federal Insurance Corporation allegingbreach of contract, common law insurer bad faith, and Unfair Competition inviolation of the California Business and Professions Code  §17200.The case was decided on cross motions for summary judgments on the topicof the insured’s right to a defense from St. Paul.

Netscape demanded that St. Paul defendit in four private civil actions.  Thosesuits alleged at least interceptions of private electronic communications.  Each of the underlying suits concernedNetscape’s “Smart Download Product,” a software program designed to facilitatethe ability of third party users to download large files over the Internet byenabling them to resume interrupted downloads from the point of interruption.The program contained a feature, “Smart DownLoading Profiling,” which providedNetscape with information about users’ internet activities. Netscape used thisinformation to create profiles of its users, both to help with technicalsupport, and to create opportunities for targeted advertising.

At first the policy “excluded coveragefor advertising injury or personal injury such as invasion of privacy claims.”Netscape was added to the policy when it was acquired by AOL in 1999.  The district court summarized parts of thepolicy pertaining to what has been called “personal injury” for a long time inCGL and similar policies. Invasion of privacy was part of the insuring agreement.  Among the exclusions was one for “personalinjury for ‘online activities.’”

A major substantive question pertainedto a single exclusion in the policy, namely the “online exclusion.” St Paulcontended it applied, and Netscape denied it.In particular, Netscape argued that “the exclusion does not applybecause SmartDownLoad did not involve ‘providing access to 3rdparties.’” The exclusion section states that “for the purpose of advertisinginjury. . ., all Online Activities are excluded from these coverages.”

The district judge examined the policyand the English language and on those bases found that “the plain meaning ofthe term ‘online activities’ included those products and services that provide,allow for, and facilitate access to the Internet and its content. Some of thelanguage examined by the court was in an endorsement, and it said:  “‘[p]roviding e-mail services, instantmessaging, 3rd party advertising , supplying 3rd partycontent and providing internet access to 3rd parties.’”  (Emphasis added.)

The court took the word “access” to bebroad, and broader than “connection.”Providing a connection meant providing a way in.  “‘Access’ included not only the permission orability to enter as ‘connection’ does, but also the freedom or ability to makeuse of something.”  The court concludedthat since the plaintiff’s were providing software that facilitated purchasersto come on to the Internet, the seller gave them access to it.

The district judge took these points tobe based on the clear language of the policy. He went further, however, andposed a hypothetical supposing that since the meaning of “access” is ambiguousso it would have to be interpreted in favor of the insured, assuming that theinsured did not propound and probably actually “write” the relevant passage.  But it is not ambiguous, that analysis needinvolve nothing but cogitation on the purely hypothetical.

There was one other question the courtdecided.  It was near its mainpoint.  This subsidiary point regardedthe meaning of “access,” actually resolves of the main other point. The policyprovided liability coverage for “personal injuries,” and that idea included“[m]aking known to any person or organization, written or spoken material thatviolates a person’s right to privacy.”

The court indicated that it would have held,but for the exclusion just discussed, that Netscape had a right to a defensefrom St. Paul.  After all, Netscapepassed information to the parent company, its employees, and persons at AOL.

The court at least impliedly held thatif the exclusion functions as the court held that it did, then there is no needto reach the “Make Known to Any Person or Organization”  language of the policy.

The Ninth Circuit panel that reviewedthis case, rejected the decision of the district court without ceremony.  Considering in reverse order, the panelrejected the trial court’s interpretation of “access.”  It held that common usage in the language ofcyber world discourse does not include the acts of “SmartDownload or the acts ofAOL as providing ‘access.’” The common usage equates “access” with providing anInternet connection. Thus, the selling of a product which a buyer could use tomake a connection is not making a connection, and thereby providing access, tothe purchaser. That eliminated the exclusion.

Now for the insuring agreement. Theplaintiffs in the underlying case pleaded a breach of privacy.  To be sure, it is an unusual, non-traditionalversion of someone’s having a right to privacy, but the coverage language inthe policy was broad. So, as the district judge said, this case was pleaded insuch a way that fit within both the legal conception of a right to privacy andthe language of the contract.Unquestionably, AOL internallydisseminated “private online communications” to some persons.  A few courts have held that these kinds ofdisclosures do not constitute an invasion of privacy.  But those decisions assert this only “indicta while deciding whether the personal injury clause covers invasions of‘seclusion privacy’ claims.”  No suchcase has been decided in a context in which the policy language employed theword “any,” and the district court was exactly about how to think about thatword.[ii]

The decision of the district courtwas reversed and remanded.2.RetailVenturesThe facts—the plot–in the underlyingcase, the case upon which the coverage case is based, are familiar.  Hackers invaded the computer system of  Retail Ventures, Inc., DSW Inc., and DSW ShoeWarehouses, Inc. on February 1 and 14, 2005 using the local wireless networkand one of the stores to get to the main system.  They “walked off,”—downloaded—credit card andchecking account information for 1.4 million customers and the underlyingdamages were stipulated to be $6.8M.  Fraudulent transactions had followed thehacked invasion, but the hackee was notified by some credit card companies onMarch 2nd.   Retail Ventures Inc. v. National Union FireInsurance Company of Pittsburgh, Pa., 691 F.3d  821 (6th Cir 2012).Retail Ventures’ damages resulted from thedata breach included “expenses for customer communications, public relations,customer claims and lawsuits, and attorney fees in connection withinvestigations for sever state Attorney Generals and the Federal TradeCommission.”  The largest part of theloss, $4M, “arise from the compromised credit card information: namely, costsassociated with charge backs, card reissuance, account monitoring, and finesimposed  by VISA/MasterCard.” The FTCcase was settled by Retail Venture agreeing to set up and deploy better cybersecurity equipment.One important feature facts surroundingthe hacking incident involved were not an issue on appeal, at least in part,because the criminal had been identified.In February 14, 2005, someone used a local wireless network at a localDSW store, obtained access to the main computer system and downloaded bothcredit card and check  information for1.4 million people that shopped at 108 of the DSW stores.  Fraudulent transactions followed.  DSW was alerted on March 2, 2005, they beganan investigation, and notified AIG quickly.AIG reserved its rights and investigated.The insurance policy involved was anendorsement—a rider—covering computer fraud attached to a “Blanket CrimePolicy.”  Here is a case where thepolicy, considered as a whole covered both to be found in the real world anddamages to be found in the real world but the causes inflicting the injuriouseffects through the use and then the causative flow to be found in the cyberworld.  What was found in the cyber worldwas not injured; no network was destroyed, for example.   It should also to be noted that that nobodily injury and no physical injury was inflicted on anything or any person inthe so-called real world.  It wasfinancial or economic only.

The insured incurred substantial expensesoccasioned by the data theft, for example: matters of customer communications,public relations, customer claims and lawsuits, attorney fees in connectionswith seven (7) government investigations by state Attorney Generals and theFTC.“FTCinquiry was resolved administratively with a consent decree, inter alia, that plaintiffs [DSW]establish and maintain a comprehensive information security program designed toprotect the security, confidentiality, and integrity of personal informationcollected from or about customer.”

Theevent and the follow up cost DSW more than $4M for“costsassociated with charge backs, card reissuances, account monitoring, and finesimposed by VISA/MasterCard.  That amountwas determined by the settlement of plaintiffs’ contractual obligations withcredit card processor, National Processing Company, LLC (a/k/a BA MerchantServices, LLC.”)

AIG denied coverage on severalgrounds.  The denial letter “questionedthe ‘location’ of the loss; it stated that the loss appeared to be ‘excludedbecause it related to confidential customer information’; that this was an “‘indirectloss,’” and so not covered.  Theplaintiff responded by providing further information. AIG modified its positionbut continued to deny coverage on the ground that the claims “arose  from ‘third party theft of proprietyconfidential customer credit card information.’”

Both the insurer and the insured soughtdeclaratory judgments.  Setting asideother issues, the only coverage issue involved a piece of the cyber theftendorsement to the blanket crime policy entitled “Computer & Funds TransferFraud Coverage.” The insurer agreed in relevant part to pay the insurer for:Loss which theInsured shall sustain resulting directly from: the theft of any Insuredproperty by Computer Fraud.

The phrase “Computer Fraud” was definedas including several alternatives, one of which was “‘fraudulently accessing ofsuch Computer System[.]’” The phrase “Insured Property” includes property theinsured owns or holds, whether or not the Insured can be held liable for whathappens in this situation, i.e., owning or holding.

AIG did not disputeunauthorized access or that there was “Computer Theft” involving “InsuredProperty.”  What was disputed was whetherthe insured’s loss was one “resulting directlyfrom the theft of insured property by computer fraud.”  (All of the underlining of “direct,”“indirect,”  “directly,” as well as“indirectly,” have been added for emphasis.)

Interestingly,the role of directness is built intomany cyber-policies, and many believe that the holding and reasoning in DSWindicates that a storm in coverage litigation is coming.In this case, AIGadvocated that the endorsement was really a fidelity bond.  That argument failed quickly.  The issue of directness was the mainissue on appeal. AIG took the position that “direct” means sole andimmediate cause, or what is sometimes called “Direct-Means-DirectApproach.”  The court rejected thisview.  To some extent it has been used infidelity bond cases, and has not always been sued there.  Instead, the court took a different approach;it adopted the premise that “direct” does not unambiguously incorporate thedirect-means-direct approach; rather that the policy language makes itambiguous.In contrast to AIG, DSWargued that “direct” means “proximate cause.”The court seems inclined toward that view but was nervous about adoptingit without a specific holding in the Ohio Supreme Court to that effect.

AIG gave two morearguments with which the court seem impatient. One is that there had been anexcluded “loss of propriety information, Trade Secrets” etc. The court gave avariety of reasons why this argument could not work. One of them was that thoseconcepts apply to the internal business operations of the insured.  Of course, nothing like that was involvedhere.[iii]

3.     Zurich American v. SonyCorporation

This case begins with ZurichAmerican (Zurich), and a number of other insurance companies filing a Complaintseeking a declaratory judgment on a breath taking disaster at the SONY. Itfocused on both the various SONY entities and other insurers. Zurich American Insurance Company, et al v.Sony Corporation, et al (Sp. Ct. N.Y. (Trial Division)) #651982/11. (July20, 2011). For reasons related to actual historical sequence and significance,this case is discussed before cases decided after it. It is my understandingthat SONY filed a similar case in California.

It all arises out of the now famousPlayStation 2011 debacle resulting from massive hacking of gaming networks(a/k/a a form of gambling?), together with networks inviting customers topurchase and download games, music, movies, and so forth.  For entry into these cyber-dens, customershad to make certain disclosures of personal information—sometimesfinancial.  On April 16, 2011, hackersentered into one of the defendant’s networks and from there got into the restof the system. Some 25 million people were subjected to cyber-informationthievery; during the next two days, through another portal of one of thedefendants, another 77 million people were subjected to the same treatment.

A total of 58 classactions were filed against the SONY entities—55 in the U.S. and 3 inCanada.  These suits pled pretty muchwhat one would expect.  They were actionsbased on common law and violations of statutes, both state and federal.Apparently, SONY has so far lost on the order of $2B.Zurich’s descriptionsof its own policies are: they were primary CGL policies, and at least one“follow form” “quota share” excess policy.Zurich’s pleadings focus on what insurers usually do when arguing dutyto defend issues:·Try to limit the number of those whohave rights under the policies, e.g., they are the policyholder; no one elseis; no one else is an additional named insured, and so forth;·Try to limit the exposure of the insurerby demonstrating that there are other insurers who go first as to liabilitypayments, whether as to the duty to defend or the duty to indemnity; &·Try to defeat exposure both as the dutyto defend and the duty to indemnify.So far as the CGL policy is concerned,it seems virtually certain that there would be no bodily injury claims,although given the number of plaintiffs in the underlying suits, perhaps someactually had heartaches resulting from finding out about the invasions offinancial privacy. In addition, it’s hard to see how this would be a propertydamage claim, since what is required is physical injury to tangible property,and there was no such suggestion of that so far as I can tell.  The most probable route for the plaintiff’sin the underlying cases was Coverage B, which focuses on so-called “PersonalInjury.” In fact, according to Zurich’s Complaint, there were not claims for“property damage,” as that terms is defined in the policy (or any at all, sofar as I can tell).   On February 11, 2014, the trial court ruledthat  Zurich had no duty to defend.

The real themes in this case revolve around Coverage B and its coveragefor invasion of privacy.  The trial courtended the case (for now) by granting Zurich what it sought.  Zurich and the other insurer argued that invasions of privacy insured under CGL Coverage B require that the insured do something to violate that right, and here that would be asserting something.  But that was not pled.           This case may be far fromover, but it is probably over so far as Coverage A is concerned. See Roberta D. Anderson in 2014, Volume49, Number 1 of the [ABA] TORT[,] TRIAL & PRACTICE LAW JOURNAL 499-528 isheavily critical of the judgment and reasoning in this case, and [This is outof 408 endnotes.] Id. at 563 n.169. Given the the lack of clarity in the language found policies regarding the categories insured under Coverage B, one would not be surprised to find that Ms. Andersonis right.  That does not matter from thepoint of view of this essay.

4.     Eyeblaster, Inc. v.Federal Insurance[iv]This case, Eyeblaster Inc. v. Federal Insurance, isanother case based on the analysis oflanguage in the policy.  It ismuch more complicated than Netscape, since—forone reason—there are more such issues.Eyeblaster was alarge international company that managed Internet ad campaigns all over theworld.  Much of its products wasinteractive advertising programs.  It hasnow become MindMedia.

According to thecourt’s opinion, “The industry in which Eyeblaster provided services is knownas rich media advertising. It allowed customers to create interactive ads in awide range of formats, and to track and manage the performance of theadvertising campaigns.” It can deliver to billions of users worldwide at thesame time. It used cookies to “measure and enhance the effectiveness of anadvertising campaign.”It had purchased(1) a General Liability policy (with some twists) and (3) Information andNetwork Technology Errors and Omissions insurance policies from Federal.  In additions to the cyber instruments justmentioned it also used JavaScript and Flash: since the latter “enlivens webpages and increases the Internet’s utility. Eyeblaster did not use spyware orintroduce malicious contact such as spam, viruses, or malware.”The period of coverage ran fromDecember 5, 2005 December 5, 2007. One David Sefton (Sefton or Plaintiff) suedEyeblaster on October 26, 2006. Eyeblaster notified Federal, but Federal deniedthe claim under the CGL on two bases: first because the Plaintiff did notassert claims for bodily, and second because the plaintiff did not assert“physical injury to tangible property.”The precise series of many problems with theplaintiff’s computer and its software, etc. is not important here, so far asthe CGL coverage is concerned. What was central to the case was the idea thatthere are two categorically different components to any computer system: thesolid, material, physical part of it and the part that are not.  The trial judge did not make this distinctioncorrectly (and it will be discussed again while considering the ideas of John DiMugnobelow) and/or did not interpret the plaintiff’s complaint in a sufficiently “charitable”way. In any case, the Eighth Circuit reversed the decision in the districtcourt that there was not coverage.  Itreasoned, correctly, that the computer itself was tangible property and thatthe plaintiff in the underlying suit had alleged that or come close enough.  What is important to realize about this case,it that it does not say that software and its “cousins” are physical objects.

5.Liberty Mutual Insurance Company v.Schnuck Markets, Inc.[v]

Notmuch can be said about this case. First, there was an order sealing at leastpart of the case and ordering Liberty to file a redacted pleading on August 16,2013, and a second order was entered on August 27, 2013, regardingthe defendant’s answer date.  Schnuckfiled the lawsuit to obtain coverage for a data breach that affected anestimated 2.4m people or entities using cards at Schnucks over a 3 monthperiod, or so.  However, Liberty hasdismissed the case.  There have been twoexplanations in the media. The first is that Liberty saw it was going tolose.  This one seems the opposite hasalready been media mentioned.  There is athird view, of course. Liberty Mutual had worked with Schnuck Markets for along time and wanted to pay a little to keep the business.

6.Endof the Second Period? The Recall CaseInthis case, Recall Total InformationManagement, Inc. v. Federal Insurance Company,[vi]the theme I am using  for dividingthe two opening historical periods for cyber insurance coveragelitigation—remember: it’s controversies as to what counts as covered propertydamage in so-called real-world policies, such as the CGL policy—the issue isbarely discussed.  In the Recall Total case, therefore, it is whatthe parties did not argue about in what became a reported opinion that is of historical,though not precedential, import.  TheConnecticut Court of Appeals did not deal with the question as to whether cyberdata can be covered physical property under the CGL policy.Here’s what happened.  Recall Total took care of various computerizedinformation for IBM—its “vital records.”Recall had hired another company, Ex Log, to haul a whole raft of “tapes”with an enormous amount of employee confidential information on them, e.g., socialsecurity numbers.  They fell off thetruck and were never recovered. IBM spent $6+m in notifying and protecting itsemployees.  It demanded contract damages(and/or, perhaps, restitution); Recall agreed to and did pay.  It then sued its CGL carrier, Federal, basedon the coverage provided for invasion of privacy found in Coverage B and forproperty damage, based on coverage found in Coverage AMost significantly, the trial courtruled that the data was “intangible property” not “tangible property,” asrequired for coverage in the CGL policy.The Court of Appeals merely observed, in passing, in endnote 4, that thetrial court’s decision had not been appealed.But why, one might wonder, would it not be appealed; after all, theexpense of that argument on appeal would be cheap (several hours ofassociate-level brief drafting, and physical objects fell off or out of the ExLog truck and then disappeared.  It seemsobvious that the lawyers and their clients realized that fights on that issuewere pretty well over—and not just in their case—but across the board, ormostly, anyway.  (Then again, of course,the two sides may have secretly settled that portion of the case. Of course, ifthat happened, that even in and of itself would signal a resignation to thecategory of Coverage A property damage fight very probably empty.

II.ConclusionThus, contrary to two well informedand well respected commentators, I suggest that the history of Recall Total, though it is a third partypolicy and not a first party policy, pretty much closes the book on data beinginsurable against “physical loss” as that term has been used historically inreal-world policies, whether third party or first party.

JohnDimugno, the renowned Editor-in-Chief of INSURANCE LITIGATION REPORTER, amongother things,  argued in Volume 36, Number1 of that journal, at pages 9-12 that, among other reasons, the Recall Total case does no such thing. Hesuggests that (i)  if magnetic patternsare physical components of computer systems—and the parts of these sitting on atable or in one’s lap are clearly physical objects—and (ii) if some malwaremoves from the insured’s computer system to that someone else, thecyber-ethereal-“space” and (iii) if an entity or person relevantly connected tothat computer is sued for that which is connected related to the etherealsomething (and not to the obviously physical something, e.g., the laptop), theremay be coverage.[vii].

Onecase upon which he relies is Eyeblaster,already discussed.  That case does notsupport the proposition that (“pieces of”)  data themselves are physical objects, thoughit does hold, rightly so, that a computer considered as a physical object—likethe thing sitting before me right now—is exactly that, indeed a concatenation,an organized and perhaps functioning pile of physical objects. But the factthat such a physical thing and may “freeze,” etc., where “freezing” was aconcept central to the case,  does notmake the data such an object similar to the laptop and its metaphoricalsiblings.  It does not even make themagnetic patterns physical objects of an insurable sort.  They are not tangible. If they were, thenbrain waves would be insurable physical objects (perhaps a closer call), aswould radio signals, wireless cell phone transmissions, text data, modes ofsending texts (none of them being a close call), and so forth.[viii]  If a given computer were unable to control“pop- ups,” and the device cannot, because of a defect or injury, say, and soas a result cannot be used, the machine is a physical entity, but the pop upitself is not.(Forreaders that need to be reminded of this fact, if a physical computer—the kindjust discuss—is pled to be damaged, there could be a duty to defend, and, ofcourse, if an insurer is obligated to defend a lawsuit because of oneallegation, it is stuck with defending the whole thing.  That legal rule is just as central tolitigation in the so-called cyber-world as it is the so-called. Still, it doesnot follow that the parts of the lawsuit which would not generate a dutyinvolve physical objects.Ofcourse, one might want to ask,

“Well, if it’s not physical what is it. Isn’teverything in the world physical?”I love this question, but that is because Istudied philosophy, including metaphysics and ontology, ad nauseum for years, and so in those systems of thought, I wouldhave to say that insurance policies are “dualistic,” in the way Descarteswas.  He thought there were minds andbodies and that they were different.  Iwould have to say that there is a difference between what I shall call scientificphysicality and pragmatic physicality and that both third and firstparty insurances of property fall into the second of these two category.  The non-metaphysician would like to ignorethat difference and always argue in the for a version of physicality that suitsclient interests at the time, but it won’t work precisely because at leastpragmatic physicality runs though the unconscious of all non-superstitiouspeople.

Theview of Roberta A. Anderson, whose major recent work has already beendiscussed, her pages 560-62 at nn 159-167 above, is more restrained and more“implication oriented.” After stating the facts in enormous reliable detail,she simply observes that the court of appeals in Total Recall says nothing whatever about the matter ofphysicality.  Of course, I agree withthat view, as I’ve already indicated. My point is entirely different that of theessay of an immensely helpful legal encyclopediast, even though both of ourviews are based on what the panel did not discuss.

Now,is there anything further to say? Sure, lots of stuff.  But the phrase “enough is enough,” some might thinkwould have called an end to it a while back.  Maybe so. In any case, I quit, for now.

[i]NetscapeCommunications Corporation v. Federal Ins. Co., 2007 WL 2972924 (N.D.Cal.,October 10, 2007), reversed and remanded, 343 Fed. Appx. 271 (9thCir.  2009) [Parallel Cite: 2011 WL2634945].

[ii]There were two otherpassages of the policy one was the “Criminal Acts Exclusion”; the district paidno attention to it since the jury had already decided.  The other was taken care of by the court’sopinion, so it was not considered further.It was not really an exclusion, it was implicated by the “underlyingactions.”  This matter will be discussedin the text presently.

[iii] There was also a fascinationissue surrounding DSW’s insurer’s bad faith claim.  This paper is about coverage only, and—in anycase—DSW lost on that issue.  Theadjustment process was unusual, however, so the potential for bad faith in thiscircumstance will be attractive to lawyers representing insureds.  I predict that this amorphous attitude willnot only persist but grow, harden, and spread.

[iv] Eyeblaster v . Federal Ins. Co., 613 F.3d 797 (8th Cir.2010).

[v] # 4:13-CV-1574NAB (E.D.Mo). August 14, 2013).

[vi]83 A.3d 664 (Conn. App. January 14, 2014)

[vii]Courts appear, so far, to have been reluctant to provide a duty to defenddecision favoring the insured to the extent s/he or it does not cite reallyspecific facts plausibly indicating that the laptop, etc., actually is damagedand is part of the point of the case.I predict that this amorphous attitudewill not only persist but grow, harden, and spread.

[viii] Itis also worth noting that Eyeblasterswas not decided under a CGL policy.