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24 Intell. Prop. & Tech. L. J. 1 (2019-2020)

handle is hein.journals/iprop24 and id is 1 raw text is: Cyber-Technology Torts and Insurers' Ambiguous Obligations to Defend Professionals and Business Entities Under Evolving Cyber-Insurance Contracts: Statistical and Legal Inferences from Traditional Insurers' Declaratory Judgments, 1940-2019 WILLY E. RICE* ABSTRACT Innovative technologies increased in the 1940s. In the wake, personal injuries and property losses also grew. Insurers responded-selling liability insurance and promising to defend manufacturers and sellers against personal injury lawsuits. Today's widely mar- keted commercial general liabiliy (CGL) insurance contract originated in the 1940s. Like early-twentieth-century technologies, cyber-technologies are producing injuries and losses. Again, insurers are responding-marketing modified 1940s-vintage CGL contracts and promising to defend merchants and professionals against cyber-technology claims. To assess the veracity of cber insurers' promises, the author conducted an empirical study of courts' declaratory judgments (N=1840)-focusing on courts' dispositions of duty-to-defend dis- putes between 1940-2019. Legal and statistical analyses uncovered several statistically significant, newsworthy and surprising findings: 1) Cyber-liability insurers are more likely to breach their promises-refusing to defend businesspersons and professionals against cyber-technology claims; 2) Cyber-risk insurers are more likely to engage in bait-and-switch schemes-promising only an illusion ofcoverage; 3) Courts are substantialy more likely to resolve duty-to-defend controversies in favor of insurers; and 4) State and federal courts are more likely to allow questionable extralegal factors-rather settled legal doctrines-to influence the dispositions of cyber-related controversies. In recentyears, the American Bar Association as well as most business, trade and professional associations have established an additional licensure requirement: Practitioners must assess and defend against the risks associated with using various office and cyber-related technologies. Certainly, business and professional associations are encouraging their members to purchase and understand * Professor of Law & Englehardt Research Fellow, St. Mary's University School of Law-San Antonio. M.A., Ph.D University of North Carolina at Chapel Hill; Postdoctoral Fellow The Johns Hopkins University;J.D. The University of Texas at Austin; and an American Bar Foundation Scholar. Crossing numerous years, Eugene R. Anderson, Hubert M. Blalock,Jr., David R. Heise, Frank A. Bot- tini,Jr. and, more recently, Robert Ranalli of Patel, Soltis & Cardenas Law Firm shared generously their expertise or insight with the author. Absolutely, their input helped the author to fashion the legal and statistical analyses as well as the research methodology in this Article. The author also thanks several other small-firm practitioners as well as cyber-technology specialists who shared their wisdom at gatherings in Austin, SanJose and San Antonio. All errors or omissions are the author's alone. I

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