Washington Law Review

Comment

NotPetya, Not Warfare: Rethinking the Insurance War Exclusion in the Context of International Cyberattacks

October 01, 2020 | 95 Wash. L. Rev. 1595

Abstract

When an insurer wants to avoid coverage of a specific type of loss, it must explicitly exclude the loss in its policy. The war exclusion is a typical exclusion found in insurance policies that excuses insurers from covering losses caused by war or warlike actions. Courts interpreting the exclusion have traditionally held that war must consist of hostilities between sovereign nations. Despite the rise of state-sponsored cyberattacks, the United States has been hesitant to officially declare war in response. Even still, insurers argue that their war exclusions should apply to these new cyber losses. Courts are now tasked with reanalyzing the war exclusion in the context of the rise of cyberwarfare. This Comment examines the history of the war exclusion, the policy reasons behind burden allocation, and where cyberattacks fall on the spectrum between war and terrorism. Insurers should not be able to use the war exclusion to escape liability for state-sponsored cyberattacks.

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