In Silver Lining for Defendants, Illinois Supreme Court Creates Problem for BIPA Insurers

On February 2, 2023, the Illinois Supreme Court handed down a precedent-setting opinion in BIPA circles, holding that plaintiffs have five years to bring claims under the Illinois Biometric Information Privacy Act, rather than the one-year timeframe some parties had urged.  While the decision immediately garnered press and became a hotly-discussed topic among the BIPA bar, the conversation to this point has focused mostly on the impact on plaintiffs, defendants, and the potential value of BIPA lawsuits.  Far less has been written about the impact on insurers.  And, in a silver lining for defendants, there may well be an impact on insurers.

While entities that find themselves as defendants in BIPA cases now have to worry about more lawsuits that reach back farther in time and increase, potentially significantly, the size of putative classes, those defendants will now have the opportunity to consider whether their older insurance policies potentially provide insurance coverage.  And, given that many insurers only recently began including language purporting to limit exposure to BIPA claims, defendants may well have an easier time arguing for coverage as to prior policies issued before such language became popular.  In short, while reading Tims v. Black Horse Carriers was likely not all that pleasant for the defense bar, the opinion may well present a silver lining for defendants seeking insurance coverage.  Defendants would be well-advised to seek the assistance of competent insurance recovery counsel to provide a coverage analysis.

The case is Tims, et al. v. Black Horse Carriers, Inc., Case No 127801, Illinois Supreme Court (2023).