P.F. Chang’s Arizona District Ruling Highlights Potential Pitfalls of Cyber Insurance
Data breaches suffered by retailers and other businesses that handle payment cards can result in substantial assessments by card brands such as MasterCard and Visa. Retailers typically do not process payment card transactions directly with the banks that issue their customers’ cards. Instead, they contract with an intermediary—called an acquiring or servicing bank—to process their customers’ card transactions with the card-issuing banks. In the event of a payment card data breach, the card brands typically impose assessments on the retailer’s acquiring bank, which in turn pursues indemnification under its service contract with the retailer.
That was the situation in P.F. Chang’s v. Federal Insurance Co., in which a federal district court in Arizona recently held that Chang’s had no cyber coverage for over $1.9 million in credit card assessments that it had to pay as a result of a data breach. The Chang’s court found that the Federal cyber policy’s “Privacy Injury” coverage did not respond to an acquiring bank’s claim against Chang’s for reimbursement of card brand assessments, because the Federal policy’s definition of “Privacy Injury” required that the compromised confidential records at issue be the claimant’s. As is typical, the payment card information stolen by the hackers belonged to Chang’s customers and the card-issuing banks, not the acquiring bank that made the actual claim for reimbursement by Chang’s.
To make matters worse for Chang’s, the court found that Federal’s contractual liability exclusion applied to otherwise covered aspects of the acquiring bank’s underlying claim. The exclusion lacked customary carve-outs, and the court hewed strictly to the policy language excluding liability that the insured “assumed . . . under any contract or agreement.” The court ruled that this language barred coverage because Chang’s liability arose from an indemnification agreement with its acquiring bank.
Notably, Chang’s policy did not include Payment Card Industry (“PCI”) coverage, a common coverage option found in cyber policies for retailers and other entities that handle payment card data. PCI coverage expressly insures amounts assessed by the card brands in the event of a data breach.
Although Federal had marketed its cyber policy as “a flexible insurance solution designed by cyber risk experts to address the full breadth of risks associated with doing business in today’s technology-dependent world” that “[c]overs direct loss, legal liability, and consequential loss resulting from cyber security breaches,” the Chang’s court was unmoved by arguments based upon the insured’s reasonable expectations of coverage. Because Chang’s and Federal were deemed to be “sophisticated parties well versed in negotiating contractual claims,” the court held that Chang’s reasonable expectations were confined to what was spelled out in the actual policy.
Cyber insurance has become an essential line of coverage for many businesses, particularly those that handle payment card transactions. But the Chang’s case is a cautionary tale: a cyber insurance purchase requires both expertise and care. Cyber policy language is not standardized and requires expert scrutiny for hidden booby traps or coverage gaps. Indeed, the adverse decision in Chang’s might have been avoided if the insured had purchased PCI coverage and negotiated appropriate carve-outs to an unusually broad contractual liability exclusion.