![]() ![]() Regardless, it is clear that companies and their carriers must be wary of claims under BIPA and similar statutes, as the legal landscape remains murky at best, while the potential liability is enormous.In situations where it is difficult to make informed decisions about products, consumers should be provided with the relevant information. For example, if an individual's biometric identifiers are disclosed improperly as a result of a cyberattack or data breach, would coverage exist? The Illinois appellate court's decision in the Illinois Railroad/CN case - providing coverage pursuant to the media liability provisions of Remprex's policy, but denying coverage based on the cyber and network breach sections - highlights this strain.įinally, the BNSF/Remprex appeal was decided under New York law, perhaps limiting its applicability moving forward. The problem facing companies and their carriers in relation to BIPA and other statutes that protect an individual's personal information is how federal and state courts will apply certain policy exclusions to BIPA cases. Many federal courts view lawsuits asserting a violation of privacy rights as falling within the advertising injury provisions of corporate insurance policies. Interestingly, however, the same appellate court came to the opposite conclusion as it related to Lloyd's obligations to indemnify Remprex in the Illinois Central/CN case, and determined that Lloyd's was required to defend and indemnify Remprex because the underlying facts - violations of one's right to privacy under BIPA - constituted a claim "during the 'course of creating media material.'" Because Remprex maintained a media liability policy with Lloyd's, the court reasoned, Lloyd's was responsible for indemnifying and defending Remprex in the Illinois Railroad/CN case.īIPA codifies aspects of an individual's right to privacy as it relates to one's unique biometric information. Remprex was not a defendant in the BNSF suit, and BNSF's indemnity demand pursuant to its contract with Remprex did not constitute a "claim." As a result, the court ruled that Lloyd's was under no obligation to defend or indemnify Remprex in the BNSF case. The court dismissed the case on Lloyd's motion, and Remprex appealed.Īpplying New York law, the appellate court determined that Remprex was not subject to a claim as defined by its policy with Lloyd's. As such, Remprex initiated an action for declaratory judgment against Lloyd's in August 2020, before the BNSF case had gone to trial, for defense and indemnity costs. ![]() Remprex maintained a policy with Lloyd's of London that provided coverage for data, media, and network liability. 2, 2023.įollowing the verdict, BNSF sought indemnification from Remprex pursuant to a contract executed between those entities. A new trial is scheduled to commence on Oct. The discretionary nature of damages under the Act adds another layer of uncertainty for insureds and their carriers in the BIPA context. The Court then invalidated that award in June 2023, holding that jurors should have been instructed that damages are not mandatory in BIPA cases so that the jury could determine damages for themselves. The jury was merely asked how many times BNSF violated the Act negligently, or how many times it violated the Act recklessly or intentionally.īecause the jury found that BNSF recklessly or intentionally violated the Act 45,600 times (based on the defense expert's estimated number of drivers whose fingerprints BNSF registered), the Court calculated that BNSF must pay $5,000 for each of the 45,600 purported violations. BNSF is presently appealing the judgment based on the instructions to the jury regarding damages. While Remprex was initially named as a defendant in the federal lawsuit, it was ultimately dismissed from that action.įollowing a full trial in the BNSF matter, the jury ruled in plaintiff's favor and awarded $228 million in damages. ![]() (Illinois Central) and CN Transportation, Ltd. The plaintiff subsequently filed a second suit in the United States District Court for the Northern District of Illinois alleging BIPA violations against Illinois Central Railroad Co. Remprex, a company that offers a range of services that utilize biometric identifiers, was not a party in that case. (BNSF) in the Circuit Court of Cook County, Illinois, alleging that BNSF improperly used his fingerprints in violation of BIPA. In April 2019, a truck driver sued BNSF Railway Co. Certain Underwriters at Lloyd's of London illustrates this conflict and provides one perspective on the challenges faced by companies and their insurance providers. The recent Appellate Court of Illinois decision in Remprex, LLC v.
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