Intellectual Property/Insurance Policy Reimbursement FAQ
1. What does the Ingber Law Firm do to assist its clients to obtain insurance policy reimbursement for its client in Intellectual Property?
The Ingber Law Firm concentrates on obtaining insurance policy reimbursement for its clients in intellectual property lawsuits. We are not an insurance agency or insurance company. We represent companies sued and/or threatened with intellectual lawsuits that seek coverage from their own commercial general liability/umbrella/excess insurance companies. Through a combination of negotiation and, where necessary, litigation, we seek recovery of attorneys¿ fees and costs incurred in defending the company against copyright and trademark claims.
2. Why can’t our own IP attorneys bring a legal action against the insurance company to recover our legal costs?
Our coverage specialty is understanding and litigating the fine points of insurance policies whose broad language may encompass intellectual property. Most intellectual property attorneys focus on the intellectual property action, whether it be a copyright or trademark suit. Most IP attorneys have very limited knowledge and experience with the insurance aspects of IP litigation. We have concentrated in IP insurance work for many years and have been successful in many cases. We know the distinctions of both coverage and IP law as well as how they interact. Our expertise has supported our continuing success in persuading insurance companies and judges to adopt our coverage views.
3. I have read our insurance policy and this legal action is clearly not covered under the policy. Why should I hire your firm?
Policies potentially implicating coverage for intellectual property lawsuits generally are written with broad and often vague policy language. In addition, most intellectual property lawsuits are filed in federal court. Federal courts only require “notice pleading,” which means that only the most minimal facts are needed in the legal complaint to give fair, but not full, notice to the defendant in the underlying case. The full factual basis for the claim may take several months to emerge, if it ever does, during the discovery process when depositions, interrogatories, etc. are served as well as through counterclaims of the Defendant. Many times a legal complaint will be silent as to the issues which must be ascertained to respond to the questions asked by the policy. As the case develops, the factual basis for the claims asserted in a particular cause of action may trigger coverage. Many times what is stated in the complaint is neither helpful nor determinative in evaluating whether there should be insurance coverage or not. Again, it takes a coverage-savvy IP attorney who has significant experience in this area to fully develop the coverage case.
4. I called our insurance broker who sold us our general liability policy and he has told me very emphatically that the matter we were sued on is not covered under our policy!
Most insurance brokers focus on the sales and marketing of insurance policies and don¿t get involved in the claims process or policy details. In addition, they are not attorneys and cannot render legal opinions on these issues. Moreover, few are aware of the developing case law that determines the meaning of the policy language they sell in this volatile legal area. Having expert outside counsel review the complaint and your insurance policy is the best approach.
5. I want to wait until the case in chief is over before I cloud the waters with a legal action against my insurance company.
Most jurisdictions and insurance companies will deny coverage for legal costs incurred prior to filing the claim with the insurance company. Some major jurisdictions, like New York and New Jersey, will deny any coverage for an insured who delays giving notice for a period as short as six months from the date of the filing and service of the lawsuit. You should file immediately.
6. What other companies have you done this work for?
The Ingber Law Firm has successfully represented a number of small to mid-sized companies in their IP insurance litigation: Econo-Car Rent-A Car, Inc., Alumet Supply, Inc., Ad Magic, Inc., Richard Schoenwalder Plumbing & Heating Co., Phoenix Health Care and Atlas Biscuit Co.
7. What do we need to do to get started with your law firm?
We would like to do an initial review of the cease and desist letter and/or complaint and the answer, as well as a thorough review of your insurance policy including amendments, declarations and endorsements. Often, we can give you a good idea of the likelihood of success based upon this preliminary analysis.
8. How long will a preliminary analysis take?
A preliminary analysis of a lawsuit situation can usually be completed within one week or, if exigent circumstances exist, as little as 24 hours once the key documents are sent and received at Ingber & Gelber.
9. What percentage of the time is the Ingber Law Firm successful in these and similar litigations?
It is difficult to try to predict what our odds would be in any one specific case, particularly at the beginning, because it usually takes several weeks or months to fully develop the case facts and see where the strengths and weaknesses of the case are. Again, what we say below is no indication of what your particular likelihood of success is going to be. However, for example, in copyright and trademark cases, we have been 80% successful in getting an insurance company to reimburse defense costs. Each of these cases is fact-specific, but the percentage of success is indicative of the relative difficulty in procuring coverage for the torts referenced.
10. If I make an insurance claim, will my premiums go up next year?
Because of significant competition among liability insurers and relatively flat sales for the past few years, insurance premiums have been relatively stable. Generally, you want to shop premiums every year or two to make sure you are not overpaying anyway. We rarely see premiums go up after an insurance claim where an aggressive approach to the market is pursued.