I was offered a rider on my last business insurance policy, for about a 5% premium increase. It was labeled the Terrorism Rider but the legal code was war, acts of state-sponsored violence, etc etc. If you don’t buy that rider, and someone drops a bomb on your building, your claim falls into an exclusion.
These exclusions were largely inserted into new policies for risk management after 9/11. If you’re negotiating a 9 figure insurance policy, you have lawyers who read the thing and can debate the issue with the insurance company’s lawyers if there is a dispute over exactly what the bespoke language you signed meant.
I’m not unsympathetic to the insurance company here. The intent of this language is “We did not sign up to take on Russia. We are willing to do that, but it isn’t free.” If somebody doesn’t negotiate for that, well, you pays your money and you takes your chances.
The clause is meant to reduce correlation - acts of war can happen to everybody at the same time, while fires and floods only happen to a tiny percentage of customers.
I remember "war not covered" language from home insurance policies, going way back before 9/11. Also exclusion of flood damage, and there are special FEMA-backed policies for that.
“The US government has publicly claimed this was a hostile act by Russia” wins that argument, trivially, in a US courtroom. And it will be a civil trial; the standard will be “preponderance of evidence.”
“Reasonable doubt” is a term of art in law. Your use of the term does not agree with how the legal field understands it. “Preponderance of evidence” is another term of art, which is a strictly lower burden to meet than “beyond a reasonable doubt.” Your understanding of which of these two standards the legal system applies in civil cases mispredicts the behavior of the legal system. You can confirm this representation with a lawyer of your choice.
The standard to survive an attempt to dismiss will be approximately “even reading all factual representations as true in the most charitable reasonable way to the suing party, no reasonable finder of fact would see a justiciable controversy here.” You’re welcome to ask a lawyer on whether the suit would pass that burden.
I hope you mean officially, because e.g. a public fox news proclamation falls under hear say, IMHO.
So much for the court as last instance of truth. So what, do they have to go to the international war courts where genocide is prosecuted instead, to rectify the unfair situation in which the claimant is caught between two hard places and the rock that is burden of proof?
Lawyer here. In the U.S., the "beyond a reasonable doubt" standard applies only in criminal prosecutions, not in civil disputes. The thinking is that, before the police may lock someone away for more than a few hours for allegedly committing a crime, or permanently confiscating his or her money as a fine for criminal behavior, we the people insist that the authorities must demonstrate, with properly-admissible evidence, that reasonable minds could not differ about the defendant's guilt.
In contrast, in civil trials the plaintiff need only convince the fact-finder, whether jury or judge, that the plaintiff's legally-cognizable claim is more likely than not to be factually justified, even though reasonable minds might well differ. That's what's known as the preponderance of the evidence standard.
(Think of the image of the scales of justice: If the plaintiff fails to adduce enough properly-admissible evidence to tip the scales in favor of the plaintiff's version of events, then the plaintiff loses. This includes cases where the scales are equally balanced, referred to as the evidence being in "equipoise.")
Exception: In a few special types of civil case, such as allegations of fraud, the plaintiff typically must demonstrate factual support for its claim by clear and convincing evidence, which the U.S. Supreme Court has defined as "plac[ing] in the ultimate factfinder an abiding conviction that the truth of its factual contentions are 'highly probable.'" [0]
Another exception: By statute in the U.S., a claim that a patent is invalid or unenforceable must be supported by facts proved by clear and convincing evidence. The Supreme Court reaffirmed this standard in the Microsoft v. i4i case, 564 U.S. 91 (2011). [1]
Incidentally, in a criminal trial, when a jury returns a verdict of "not guilty," it's a misnomer: The verdict should really be "not proved beyond a reasonable doubt." (I understand that this is in fact a permissible form of verdict in Scotland.) The defendant could still be held liable for damages — but not imprisoned — in a civil trial under a preponderance standard.
That's what happened to OJ Simpson: He was acquitted in his criminal trial, because the jury found that the prosecution had failed to prove his guilt beyond a reasonable doubt. Afterwards, though, the families of Nicole Brown Simpson and Ron Goldman successfully sued Simpson in civil court for wrongful death. The families persuaded a different jury that Simpson was more likely than not to have killed the two. The jury awarded the families some USD $33 million in damages. Much of Simpson's property — including his Heisman Trophy — was seized and sold at auction to pay (part of) the damage award. [2]
I’m not unsympathetic to the insurance company here. The intent of this language is “We did not sign up to take on Russia. We are willing to do that, but it isn’t free.”
The intent of the language doesn't matter in the least. What matters is the language itself and the meeting of minds that existed when the policy was purchased. Cyberattacks, whether perpetrated by Russians or the script kiddie down the street, do not fall under anyone's legal definition of "war."
If I'm wrong about that, then great -- now we can legitimately bring up the subject of treason charges against those who were complicit in the DNC hack and subsequent email dissemination.
I suspect you'll be a lot more sympathetic when you file a claim and your insurance company interprets your policy on the basis of a dictionary they wrote themselves.
Per the article, the exclusion was "a hostile or warlike action in time of peace or war.", and part of the argument is based on the fact that the US government labeled it as a russian campaign to destabilize other countries (https://www.whitehouse.gov/briefings-statements/statement-pr...). That's not just the insurance company redefining words there...
Once again, defining cyberattacks as "war" or even "warlike" would have profound implications well beyond the confines of the insurance industry. These definitions are not left open to opinion for some very good reasons.
This insurance company is going to lose. It's simply unbelievable that people here are defending them, even on a site known for turning devil's advocacy into a religion.
We'll see, I don't think it's clear cut how it'll pan out. I agree that this definition is a line that's tiptoed around a lot, with one the one hand them being clearly seen as a tool of the military, and the US administrations making statements that they consider military strikes a possible response to cyber attacks, and on the other hand lots of careful warning about the risks of doing so, the problems with attributions, attacks being handled on a civil level, ..., but the former half could be enough. Especially if the attack is put into context of the existing war/conflict in the region, qualifying it as part of the conflict might come easier than if it were a standalone attack without this context.
It's not like the courts opinion would force a change in the government position, and governments don't necessarily treat all examples of conventional state aggression as war (or at least not as war they want to concern themselves with) either.
These exclusions were largely inserted into new policies for risk management after 9/11. If you’re negotiating a 9 figure insurance policy, you have lawyers who read the thing and can debate the issue with the insurance company’s lawyers if there is a dispute over exactly what the bespoke language you signed meant.
I’m not unsympathetic to the insurance company here. The intent of this language is “We did not sign up to take on Russia. We are willing to do that, but it isn’t free.” If somebody doesn’t negotiate for that, well, you pays your money and you takes your chances.