An area of significant concern for most companies is an investigation by a government regulator, and the subsequent administrative proceeding. Not only is there the possibility of fines and penalties, but the defense costs incurred in defending against such actions typically far exceed the actual penalty imposed. As a result, companies should plan ahead by obtaining insurance that will insulate their bottom line from government investigations and administrative proceedings.
Insurance Pitfalls
In procuring such insurance, however, insureds should understand the potential pitfalls in the coverages offered by the insurers. One of the significant, disputed areas is what constitutes a “claim” under the insurance policies. Insurers have recently contended that a “claim” only arises once there is a formal investigation commenced by a government agency. However, most government investigations typically begin with the issuance of a subpoena or warrant, not through a formal order of investigation. Accordingly, insurers typically dispute coverage, but courts have recently trended toward providing coverage upon receipt of a subpoena or warrant.
