Insurance Recovery Law - August 2015

by Manatt, Phelps & Phillips, LLP
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In This Issue:

  • Insured's Notice to Broker Satisfied Policy Requirements, Illinois Court Rules
  • Pennsylvania Supreme Court: Insured May Settle Without Consent and Recover From Insurer
  • Split Decision in Illinois Finds Coverage for Officials, but Not for City
  • Insurer's Suit Tossed Based on Failure to Conduct Policy-Mandated ADR

Insured's Notice to Broker Satisfied Policy Requirements, Illinois Court Rules

Why it matters: An insured's notice to its broker satisfied the policy's notice requirements, an Illinois appellate panel recently concluded—even though the broker didn't pass along the notification for more than two years. A salesperson was involved in a car accident while driving to work and was sued by the other driver. The employer provided notice to its insurance broker of the car accident, but the insurer didn't receive notice until several months later, after the lawsuit was filed. The insurer responded with a declaratory judgment action against the insured, the employee, and the driver of the other vehicle, arguing that it owed no duty to defend because the insured did not provide timely notice of the claim. The insurance broker was not an agent of the insurer for purposes of providing notice, the carrier told the court. But based on the facts of the case, the court disagreed. The insured's normal course of dealings was to contact its broker first, with the broker listed as an "agent" on the policy documents and payment schedules. Under the circumstances, the insured provided proper and timely notice of the claim, the appellate panel ruled, affirming judgment for the insured.

Detailed discussion: On August 17, 2005, Michael Molda was driving to a construction site as part of his job with Metrolift when he got into a car accident with Nola Wilson. Molda—who was not offered a company vehicle to drive and was expected to use his own car—was driving his mother's car at the time. After the accident, he notified State Farm, which insured the vehicle, as well as Metrolift.

When Metrolift learned of the accident, a company executive reached out to the insurance broker, Associated Specialty Insurance, which had helped Metrolift purchase its policy with First Chicago Insurance Company. The executive and the broker decided to wait to notify First Chicago.

Wilson later filed suit against Molda, later amending her complaint to add Metrolift as a defendant. Molda was served with the lawsuit in October 2007. The broker notified First Chicago of the lawsuit in March 2008.

First Chicago then filed a declaratory judgment action in Illinois state court, claiming it owed no duty to defend either Molda or Metrolift. Molda's vehicle was not covered under its policy, First Chicago argued, and Metrolift failed to provide timely notice of the accident as required by the policy.

The trial court judge granted summary judgment in favor of First Chicago, but a panel of the appellate court reversed. On remand, the trial court conducted a bench trial and ruled in favor of Metrolift. The insurer appealed and an appellate court affirmed.

Molda was an insured under the policy, the court held, and his vehicle was a covered auto under the policy. Metrolift purchased coverage for different types of automobiles, including "Category 9," described as "Nonowned Autos Only." The provision provided coverage for "Only those autos you do not own, lease, hire or borrow which are used in connection with your business. This includes autos owned by your employees or members of their households but only while used in your business or your personal affairs."

The panel rejected First Chicago's contention that the provision required Molda (and not his mother) to own the vehicle. "First Chicago's interpretation of the definition of nonowned autos is overly restrictive," the court wrote. Applying "the plain language" of the definition of nonowned auto, Molda's vehicle was not owned, leased, hired or borrowed by Metrolift, and if used in connection with Metrolift's business, it would be a covered auto.

Molda testified at trial that he was on his way to a construction site at the time of the accident, and Metrolift was aware that he was driving his own vehicle. Given the requirement that the vehicle be "used in connection with your business," a broad and vague term, "Molda's vehicle was properly considered to be a 'nonowned auto' under the First Chicago policy," the court opined.

Molda also qualified for coverage under a provision for "[a]nyone liable for the conduct of an 'insured,'" the court found. "At the time of the accident Metrolift had potential liability under the doctrine of respondeat superior, and, in fact, was included as a defendant in Wilson's case on that basis."

Whether or not Associated Specialty was First Chicago's agent for purposes of accepting notice was the next question the court addressed. Although an insurance broker is generally considered to be the agent of the insured, there are situations where an insurance broker can act as the agent of the insurance company or even both, the court opined.

And even if the broker does not have actual authority to act as the carrier's agent for purposes of notice, it may have apparent authority, the court further held. Apparent authority can be established through the course of dealings between the broker and the insurer. In the case at bar, there was evidence presented at trial that First Chicago included Associated Specialty's name, address, and telephone number on its declarations page as the producer.

"It did not provide any other contact information, nor was any individual or business other than Metrolift named anywhere within the policy," the panel commented. "If a claim was to be made, there was no reference to a phone number or person in his representative capacity to contact other than 'our authorized representative.' Additionally, in payment schedules admitted into evidence, Associated Specialty's information is listed under the underlined heading 'Agent' and an 'Agent Number' is provided under Associated Specialty's information."

Further, e-mails between the Metrolift executive and Associated Specialty supported the contention that Metrolift notified Associated Specialty almost immediately after learning about the accident. In addition, a First Chicago executive testified the insurer encouraged policyholders to report claims to their broker if they felt more comfortable doing so.

In light of these facts, "[w]e cannot find that it was against the manifest weight of the evidence for the trial court to conclude that this evidence gave rise to apparent authority for the purpose of accepting notice," the court concluded.

Even though First Chicago learned of the accident approximately 31 months after it occurred, notice was timely and did not violate the policy requirements, the panel added. "Associated was First Chicago's apparent agent for purposes of accepting notice of the loss," the court said. "Associated was notified of the loss almost immediately, and First Chicago does not argue that the notice provided to Associated was unreasonable."

In addition, while prejudice is not dispositive, the court noted that First Chicago did not establish that it suffered any prejudice. First Chicago did not make a serious attempt to investigate the matter. In particular, it failed to obtain the entire police report, did not interview either Wilson or Molda, and did not even attempt to reach State Farm about the results of its investigation. Accordingly, the court determined that the trial court's finding that notice was timely was not against the manifest weight of the evidence.

To read the opinion in First Chicago Insurance Company v. Molda, click here.

Pennsylvania Supreme Court: Insured May Settle Without Consent and Recover From Insurer

Why it matters: An insured may settle a claim without the insurer's consent where the insurer is defending the claim subject to a reservation of rights, and may recover the settlement amount from the insurer, provided that coverage is found to exist and the deal is fair, reasonable, and was made without collusion, the Supreme Court of Pennsylvania recently held. This case dates back to 1994, when a group of plaintiffs filed a class action against two nuclear facilities, alleging that they suffered bodily injury and property damage because of emissions from the facilities. The liability insurer of the facilities defended the suit under a reservation of rights, but refused to consent to any settlement offers. Nevertheless, the policyholders settled the lawsuit for $80 million, and requested reimbursement from the insurer. Invoking a provision prohibiting the insured from assuming obligations without the insurer's consent, the carrier refused to cover the settlement. The trial court ordered the insurer to pay for the settlement, but an appellate court reversed. The state's highest court reversed again, concluding that "if an insurer breaches its duty to settle while defending subject to a reservation of rights and the insured then accepts a reasonable settlement offer [within the policy limits], the insured need only demonstrate that the insurer breached its duty by failing to consent to a settlement that is fair [and] reasonable." This standard allows policyholders to be reimbursed for otherwise covered settlements, even if the insurer does not consent, without having to establish the insurer acted in bad faith.

Detailed discussion: Babcock & Wilcox Company and Atlantic Richfield Company (collectively, BW/ARCO) were named in a federal class action lawsuit brought by plaintiffs claiming to have suffered bodily injury and property damage caused by emissions from nuclear energy facilities operated by BW/ARCO. Insurers American Nuclear Insurers and Mutual Atomic Energy Liability Underwriters (collectively, ANI) agreed to defend BW/ARCO under a reservation of rights.

The class grew to more than 500 plaintiffs, and in 1998 the court conducted a jury trial of eight test cases. Jurors awarded a verdict totaling in excess of $36 million, or about $4.5 million per plaintiff. Due to evidentiary issues, however, the court ordered a new trial.

Concurrently, ANI filed a declaratory judgment action in state court seeking an order that it owed no duty to defend. The trial court held that the insureds were entitled to separate counsel, which was affirmed on appeal.

Before a second trial could take place in the underlying class action, BW/ARCO settled the case. ANI refused to consent to any settlement offers, believing that the case had a strong likelihood of a defense verdict, given the federal court's grant of a new trial on evidentiary issues and a lack of medical support for the plaintiffs' claims. Despite ANI's refusal to consent, BW/ARCO settled the case for $80 million, which was substantially less than the policy limits of $320 million.

BW/ARCO then sought reimbursement from ANI in state court. ANI refused to cover the settlement, citing a standard consent to settlement clause requiring the policyholder to cooperate with the insurer and obtain consent prior to reaching a settlement:

"The insured shall cooperate with the companies, and upon the companies' request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, make any payments, assume any obligations or incur any expense."

Pointing to Cowden v. Aetna Cas. Co., a 1957 case from the Pennsylvania Supreme Court, ANI argued that state law requires an insurer to pay for the settlement only if it acted in bad faith in refusing to settle and that the policyholder had not established that ANI acted in bad faith. BW/ARCO countered that ANI should indemnify them because the claim otherwise was covered and the settlement was fair, reasonable, and entered in good faith, pointing to a line of cases originating with United Services Auto. Assoc. v. Morris from the Arizona Supreme Court. The trial court agreed with BW/ARCO, applying the Morris standard and ordering ANI to indemnify BW/ARCO in light of the jury's determination that the settlement was "fair and reasonable."

ANI appealed. Emphasizing that insurance policies are contracts at heart, the intermediate appellate court reversed, opining that the language of the policy trumped any public policy arguments. The appellate panel chose to adopt a different approach from a Florida federal court decision in Taylor v. Safeco Insurance Co. The so-called "Taylor/Insured's Choice Test" requires a policyholder to accept the insurer's defense and full control of the litigation (with protection in the form of a bad faith action), or decline it and shoulder the financial responsibility itself.

BW/ARCO then appealed. The Pennsylvania Supreme Court accepted the case to address the question: "Does a policyholder forfeit its right to insurance coverage by settling an underlying and covered claim without its insurer's consent, where the insurer is defending subject to a reservation of rights to disclaim coverage, the settlement is at arm's length, is fair and is reasonable, and the insurer has failed to offer any amounts in settlement?" The court then answered the question in the negative, rejecting the Taylor standard articulated by the appellate panel and adopting a variation on the Morris test.

ANI argued that it acted in good faith in refusing to accept the settlement in the underlying litigation, based on its belief in a strong defense to the case, as well as concern that other plaintiffs would file copycat lawsuits. The insurer also reiterated the importance of respecting the policy's terms requiring consent prior to settlement, arguing that the Cowden standard had worked in Pennsylvania for 60 years. Adopting the Morris standard, ANI cautioned, also would lead to protracted litigation regarding whether a settlement is fair and reasonable.

But the Supreme Court was not persuaded. It reviewed the Morris decision (which has been adopted by other jurisdictions, including Alaska, Indiana, Maine, and Wyoming) and found that other courts have adopted slightly modified versions, such as Iowa and Minnesota. Considering prior case law in Pennsylvania, including Cowden, as well as the line of cases following Morris, "we adopt a variation on the Morris fair and reasonable standard limited to those cases where an insured accepts a settlement offer after an insurer breaches its duty by refusing the fair and reasonable settlement while maintaining its reservation of rights and, thus, subjects an insured to potential responsibility for the judgment in a case where the policy is ultimately deemed to cover the relevant claims," the court wrote. "Like our sister states, we observe that a determination of whether the settlement is fair and reasonable necessarily entails consideration of the terms of the settlement, the strength of the insured's defense against the asserted claims, and whether there is any evidence of fraud or collusion on the part of the insured."

"[I]f an insurer breaches its duty to settle while defending subject to a reservation of rights and the insured accepts a reasonable settlement offer, the insured need only demonstrate that the insurer breached its duty by failing to consent to a settlement that is fair, reasonable, and non-collusive … rather than demonstrating bad faith by the insurer, as the damages sought are subject to the policy limits to which the insurer originally contracted," the court concluded. Accordingly, the Supreme Court reversed the appellate panel and reinstated the judgment of the trial court.

To read the opinion in The Babcock & Wilcox Company v. American Nuclear Insurers, click here.

Split Decision in Illinois Finds Coverage for Officials, but Not for City

Why it matters: In a decision involving coverage for a lawsuit against a city and two city officials, a federal court in Illinois ordered an insurer to provide defense to the city officials, but held that coverage was not available to the city. The underlying dispute involved a plan to build a baseball stadium that fell through. The team sued the city and two city officials for breach of contract as well as fraud and civil conspiracy. When the city and officials tendered defense of the suit to their insurer, the carrier denied the request and filed a declaratory judgment action. The insurer argued that the policy contained multiple exclusions precluding coverage, including a breach of contract exclusion. The court held that the exclusion applied to allegations against the city, but that other allegations against the city officials fell outside of the exclusion and mandated coverage.

Detailed discussion: Grand Slam Sports & Entertainment (GSSE) operated a minor league baseball team known as the Lake County Fielders. In 2006 the director of economic development for Zion, Illinois, approached the company about developing a stadium in the city. GSSE worked with the director, as well as the mayor, to negotiate the terms of the deal.

The parties reached an agreement to construct a stadium for the Fielders. The City of Zion Council approved the sale of bonds to finance the project and entered into a construction contract in 2011. But progress on the stadium then stalled.

According to the subsequent lawsuit filed by GSSE, the director and the mayor determined that the project was too risky and decided not to pursue the bond sale or build the stadium. However, the defendants kept their decision quiet, despite knowing that it would have negative consequences for GSSE. Instead, they engaged in knowingly false representations and material omissions to conceal that the stadium would not be built, GSSE alleged.

GSSE claimed that it relied upon the officials' misrepresentations in deciding to field a team for the 2011 season, losing approximately $500,000 in revenue. The officials also attacked the reputation of GSSE, the suit alleged, making false public statements about the reasons that the project was delayed. But as to the city, GSSE's lawsuit alleged only breach of contract.

OneBeacon America Insurance Company insured the city and the city officials. OneBeacon denied coverage to all of them, arguing that a breach of contract exclusion precluded coverage for all of the defendants, and that other exclusions applied to the city officials as well.

U.S. District Court Judge Charles P. Kocoras ultimately split the baby. The court first considered the effect of the breach of contract exclusion, which applied to "[a]ny 'claim' arising directly or indirectly out of, or in any way related to liability assumed under any contract or agreement of breach of contract to which the insured is a party or a third-party beneficiary, or any representations made in anticipation of such contract or agreement of any 'claim' against any insured arising directly or indirectly out of, or in any way related to tortious interference with a contract or business relations." However, the exclusion "does not apply to liability the insured would have in the absence of the contract or agreement."

As to the city, "it is clear and free from doubt that the breach of contract claim in the Underlying Complaint would necessarily fall within the Contracts Exclusion so as to preclude coverage of the City of Zion," the court wrote. "The alleged wrongful acts of the City of Zion described in the Underlying Complaint would not exist but for the breach of contract." Notably, the court did not even decide whether the CGL policy provided coverage for a personal and advertising injury based on the city officials' public comments about the GSSE deal because "the breach of contract exclusion would nevertheless preclude OneBeacon's duty to defend the City of Zion." The remaining allegations against the city would not trigger coverage by themselves, the court added, because "they explicitly rely on the breach" of the contract, and "[i]t is clear that the breach of contracts exclusion . . . applies to all the allegations in the Underlying Complaint that involve the City of Zion, eliminating OneBeacon's duty to defend the City."

However, the court opined, the applicability of the exclusion to the city officials was "less straightforward." OneBeacon argued that the counts for fraud and civil conspiracy reference the contract, and the complaint should be read as a whole. The city officials, on the other hand, pointed to the last sentence of the exclusion to argue that, if the contract references were removed from the counts against them, the allegations would still exist for wrongful acts unrelated to any contract.

The court agreed with the city officials. The complaint alleged "numerous" other wrongful acts, including disparaging publications about GSSE to the public and misrepresentations about the bonds, "none of which" relied on any provision in the contract. "The Court cannot conclusively determine that such alleged wrongful acts would not have arisen but for a breach of contract," the court wrote. "Accordingly, there remains sufficient uncertainty as to the applicability of the Contracts Exclusion to the [city officials], and we, therefore, cannot decisively apply the Contracts Exclusion to the claims against them."

A second exclusion for Profit, Advantage or Remuneration similarly did not preclude coverage for city officials, the court held, despite OneBeacon's argument that the complaint was "saturated with the illegal financial motivations" of the city officials. The exclusion prohibited coverage for "[a]ny 'claim' arising directly or indirectly out of, or in any way related to any insured gaining any profit, advantage or remuneration to which that insured is not legally entitled." It is "evident that GSSE could still have pleaded fraud and civil conspiracy claims regardless of whether the city officials gained a profit, advantage or remuneration in which they were not legally entitled," the court opined. "Nowhere is profit, advantage or remuneration a requisite element of either cause of action."

Likewise, the profit exclusion was not "sufficiently triggered," the court held. "We do not find OneBeacon's contention that at least some of the allegations in the forty-two page Underlying Complaint fall in the Profit Exclusion to be very convincing. There must be more than sporadic general allegations to convince us to apply this exclusion."

Accordingly, OneBeacon's motion for summary judgment was granted as to the city but denied as to the city officials.

To read the opinion in OneBeacon America Insurance Co. v. City of Zion, click here.

Insurer's Suit Tossed Based on Failure to Conduct Policy-Mandated ADR

Why it matters: In May insurer Columbia Casualty Company filed a lawsuit in California federal court that had cyber insurance policyholders taking notice. The insured, Cottage Health System, suffered a data breach in October 2013. Patients filed suit, and Cottage settled for $4.125 million. Columbia paid the settlement, and then filed a declaratory judgment action seeking reimbursement for the amounts it paid. Columbia argued that Cottage's efforts at data security failed to meet even minimal standards, and that such poor security violated the terms of its cyber insurance policy. Cottage then filed a motion to dismiss, arguing that Columbia failed to mediate with Cottage prior to filing suit, as required by the policy. Columbia told the court it decided against mediation because the effort would have been "futile" based on preliminary efforts to resolve the dispute. But the court, citing Ninth Circuit precedent, held that the court's only two options where Columbia failed to mediate were dismissal or summary judgment. The court opted for the first option and dismissed the suit without prejudice, giving the parties the chance to attempt to resolve their dispute via mediation.

For further background on the case, click here to review coverage by Business Insurance ("Mediation Ruled First Step in Cyber Coverage Case") or here to review a summary of a recent Reuters article ("Judge Tosses Data Breach Coverage Suit for Failure to Mediate"), for which Stephen Raptis and Susan Page White, partners in Manatt's Insurance Recovery practice, provided commentary.

Detailed discussion: Cottage Health System, a nonprofit network of six hospitals, suffered a data breach in 2013 that made the medical records of more than 32,000 patients public. The patients filed suit, and Cottage reached a deal to settle the case for $4.125 million in late 2014.

Columbia agreed to fund the settlement, but reserved its right to seek reimbursement. Columbia then filed a declaratory judgment action, seeking to recover the amount it paid for the settlement. Columbia argued that the policyholder's lack of data security standards resulted in the breach. As a result, coverage for the breach was precluded by an exclusion for Failure to Follow Minimum Required Practices, which applies to losses involving failure to continue to implement certain data security procedures and risk controls set forth in Cottage's policy application and related materials. Cottage's actions fell squarely within the exclusion, Columbia argued, because, among other things, Cottage used Internet servers that allowed access to private patient information through Google, and did not maintain a system to detect unauthorized attempts to access sensitive information.

But Cottage countered that Columbia itself failed to follow policy requirements. In particular, Cottage pointed to a policy provision requiring that "[a]ll disputes and differences between the Insured and the Insurer which may arise under or in connection with this policy … shall be submitted to the alternative dispute resolution (ADR) process." If mediation is the chosen method of ADR, "no … judicial proceeding shall be commenced until the mediation shall have been terminated and at least 60 days shall have elapsed from the date of the termination." Columbia made no effort to resolve the dispute via ADR, Cottage told the court in a motion to dismiss.

U.S. District Court Judge Dean D. Pregerson opined that his only decision was whether to dismiss the case altogether or, as requested by Columbia, to issue a stay. The language of the policy "controls the timing of suits arising out of the policy and requires that the ADR process take place before a lawsuit is initiated," the court held. "Plaintiff makes no argument that the ADR provision is unconscionable or otherwise unenforceable as a matter of contract, and the provision does not deprive Plaintiff of the right to bring a lawsuit if mediation fails. There is no reason not to hold Plaintiff to its agreement."

The "Court concludes that [Columbia's] failure to exhaust [ADR requirements] is clear from the face of the complaint," Judge Pregerson wrote. "The complaint does not allege that Plaintiff abided by the ADR clause in filing the action; nor, indeed, has Plaintiff argued otherwise. That plaintiff has not exhausted the non-judicial remedies required by the contract is therefore apparent on the face of the complaint." The court also noted that Columbia had not asserted that it would suffer prejudice if the action were dismissed rather than stayed (such as the running of the statute of limitations).

Accordingly, the court granted Cottage's motion to dismiss without prejudice, allowing the parties to pursue ADR under the terms of the policy.

To read the order in Columbia Casualty Co. v. Cottage Health System, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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