The recent National Institute of Standards and Technology (NIST)publication of cybersecurity guidance for the Internet of Things (IoT) is a useful reminder that hacking incidents can result not only in privacy breaches, but also in bodily injury or property damage — via critical infrastructure, medical devices and hospital equipment, networked home appliances, or even children’s toys. In addition to enhanced system security engineering and preventive education efforts, insurance is an increasingly essential component in any enterprise risk management approach to cyber vulnerabilities. But purchasers of cyber insurance are finding that nearly all of the available cyber insurance products expressly exclude coverage for physical bodily injury and property damage.
These exclusions are no doubt assumed to “dovetail” with (i.e., to avoid duplicating) the bodily injury and property damage coverage traditionally afforded by general liability and first-party property insurance policies. But it is not always clear whether those more conventional policies cover bodily injury or property damage arising from a cyber-related peril (so-called “cyber-physical” risks). Unless an insurance program specifically addresses these risks, the determination of coverage for physical harm from a cyber-attack may depend on a close reading of policy language and a fact-intensive analysis of how the harm arose.
Policyholders would be well advised to understand the potential cyber-physical risks they face; to analyze all their current lines of coverage to determine whether and how each would respond to those risks; to seek clarifications in their current insurance wordings; to explore new “difference in conditions” insurance products designed to plug any gaps in coverage for such risks; and, ultimately, to expect disputes with their insurers if these novel cyber-physical harms should materialize.
© 2016 Covington & Burling LLP
