How Are Insurers And Policyholders Faring in COVID-19 Business Interruption Coverage Litigation?

January 18, 2021
Edward M. Koch & Elizabeth C. Dolce - White and Williams LLP

This article is based on a presentation by the authors (along with Marc L. Penchansky and Felix S. Yelin) at White and Williams LLP’s Virtual Coverage College® on October 22, 2020. Every year, hundreds of insurance professionals come to Philadelphia—this year via our online platform—to participate in a full day of lectures and interactive presentations by White and Williams lawyers and guest panelists about the latest issues and challenges involved in claims handling and insurance litigation. Visit coveragecollege.com for more information and stay tuned for Coverage College® 2021.

With the COVID-19 pandemic and government stay-at-home orders came an unprecedented number of claims for business interruption coverage under first-party property policies—and the inevitable coverage litigation over those claims followed closely behind. As of this writing, we are aware of at least 70 court decisions on motions by insurers to dismiss policyholder lawsuits seeking business interruption coverage for COVID-19 related losses.

Reprinted courtesy of Edward M. Koch, White and Williams LLP and Elizabeth C. Dolce, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Ms. Dolce may be contacted at dolcee@whiteandwilliams.com


Federal Court Provides Soothing Comfort for Spa’s COVID-19 Business Income Claim

January 11, 2021
Michael S. Levine & Meagan R. Cyrus - Hunton Insurance Recovery Blog

On December 9, 2020, in Elegant Massage, LLC v. State Farm Mut. Auto. Ins. Co., No 2:20-cv-00265-RAJ-LRL (E.D.V.A. Dec. 9, 2020) , a Virginia federal court refused to dismiss a majority of the policyholder’s breach of contract claim and its request for bad faith damages, declaratory judgment and class certification, all stemming from the insurers’ denial of coverage for COVID-19 related business income losses. The policyholder, a spa, purchased an all-risk property insurance policy with coverage for, among other things, loss of business income and extra expense. The spa, a non-essential business, closed on March 16, 2020 as a result of state orders requiring all non-essential businesses to close due to the COVID-19 pandemic. It did not reopen until May 15. Once re-opened, however, the policyholder was required to implement operational controls and precautions to ensure the safety of the public and its employees. Following its closure, the policyholder sought coverage under its all-risk insurance policy. The insurer denied coverage for the claim, contending first that losses due to the COVID-19 pandemic and subsequent closure orders did not constitute “property damage” within the meaning of the policy and, second, even if the losses were because of “property damage,” the claim implicated various exclusions to coverage. The policyholder then initiated suit against its insurers.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Meagan R. Cyrus, Hunton Andrews Kurth

Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Cyrus may be contacted at mcyrus@HuntonAK.com


Federal Court Remands COVID-19 Case Presenting Novel and Important Issues of State Insurance Law

January 4, 2021
Tred R. Eyerly - Insurance Law Hawaii

The federal district court exercised its discretion under the Declaratory Judgment Act, declining jurisdiction over a case presenting claims arising from COVID-19. Marc Daniel Hospitality, LLC v. AmGuard Ins. Co., 2020 U.S. Dist. LEXIS 191956 (D. N.J. Oct 16, 2020).

Plaintiff operated an upscale sit-down restaurant and whiskey bar offering a full menu. In March 2020, state and local orders limited the scope and hours of operations of all restaurants in the state due to the COVID-19 pandemic. Subsequent orders mandated that New Jersey residents remain at home except under certain exceptions. Plaintiff had to temporarily close its restaurant.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Engineering Coverage for Social Engineering Schemes in Light of New Jersey Federal Court Opinion Finding No Errors and Omissions Coverage for Email Scam

December 29, 2020
Andrea DeField & Michael L. Huggins - Hunton Andrews Kurth

It’s a cautionary tale of cyber fraud. A title agent in a real estate transaction receives an email ostensibly from the mortgage lender providing instructions for transferring the loan proceeds into a settlement bank account. After transferring the funds ($520,000), it becomes apparent that the transfer instructions came from an email address that was one letter off from the mortgage lender’s actual email address – it was a scam. But it’s too late, the scammer has already withdrawn the funds from the settlement account and cannot be traced.

Reprinted courtesy of Andrea DeField, Hunton Andrews Kurth and Michael L. Huggins, Hunton Andrews Kurth
Ms. DeField may be contacted at adefield@HuntonAK.com
Mr. Huggins may be contacted at mhuggins@HuntonAK.com


How COVID-19 Has Affected Risk in the Construction Industry

December 21, 2020
Gary Clevenger - Construction Executive

More eyes are on the growth and response of the construction industry than ever before. A McKinsey report distinguished construction as one of the industries that has the potential to help both communities and economies recover following COVID-19. The steps construction companies take in the coming months could lead to the industry coming back stronger and more innovative. However, with any rapid transition, comes new risk.

The onset of COVID-19 introduced many new challenges to construction professionals. On top of a shortage of trained construction professionals that has been prevalent in the industry, companies are now facing restrictions on how many workers can be on a jobsite—all leading to a sudden increase in fatigue among workers. There is an increased focus on job safety training and physical fitness, as time off from the job during quarantine likely depleted some workers’ skills. Additionally, from mental distractions due to the stress of the pandemic to additional PPE requirements—there are many new obstacles workers in the construction industry are now facing.

Reprinted courtesy of Gary Clevenger, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Clevenger may be contacted at gary.clevenger@cna.com


Wildfires Are Close to Torching the Insurance Industry in California

December 14, 2020
Leslie Kaufman & Eric Roston - Bloomberg

Dave Sapsis went to bed on Sunday, Aug. 16, with a sense of foreboding. As the head of risk mapping at the California Department of Forestry and Fire Protection, he’d seen the readouts from the agency’s high-precision weather forecasting system showing broad bands of clouds that could produce lightning without rain. After a wet spring, the state had spent the summer months baking under record-high temperatures, turning all those spring shoots into dry tinder.


Insurance Companies Drop Appeal Against the London High Court’s Ruling in the FCA’s “Test-Case”

December 7, 2020
Lorelie S. Masters & Jorge R. Aviles - Hunton Insurance Recovery Blog

As we explained in our earlier post, in a decision that could influence how policyholders and insurers around the world address business-interruption coverage for COVID-19 losses, the London High Court recently handed down its much-anticipated judgment in the Financial Conduct Authority’s “Test Case,” The Financial Conduct Authority (FCA) v. Arch et al. Because the judgment provided that coverage was available for COVID-19 business-interruption losses under most of the policy wordings at issue, it was highly anticipated that the insurance companies at issue would challenge the judgment in a fast-tracked “leapfrog” appeal to the Supreme Court of the U.K., expected to be heard by the end of the year. Yesterday, however, six of the insurance companies subject to the judgment decided not to pursue an appeal in connection with some of the policies, and one of the insurers stated that it would instead begin to make payments where appropriate.

Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Jorge R. Aviles, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Aviles may be contacted at javiles@HuntonAK.com


MDL Panel Denies Consolidation for COVID-19 Insurance Cases for All Insurers (with One Exception)

November 30, 2020
Scott P. DeVries & Rachel E. Hudgins - Hunton Insurance Recovery Blog

As we reported in a prior blog, on August 14, the Judicial Panel on Multidistrict Litigation rejected plaintiffs’ request for a consolidation of all COVID-19 insurance coverage federal litigation, agreeing to consider mini-MDLs as respects five specific insurers, which accounted for roughly one-third of the federal cases. On October 2, the Panel rejected the concept of mini-MDLs as respects four of these five insurers and accepted an MDL for the fifth insurer.

Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Rachel E. Hudgins, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com


Beyond General Liability Insurance: Other Liability Exposures to Be Aware Of

November 23, 2020
Jeffrey Cavignac - Construction Executive

Every contractor of any size likely carries commercial general liability insurance. Not only is it prudent to carry, nearly all contracts require it. Auto liability and employers liability (part of a workers' compensation policy) are also mandatory in most agreements. There are, however, a number of other liability exposures that exist for a construction company and should be evaluated and considered.

Reprinted courtesy of Jeffrey Cavignac, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Failure to Plead Physical Loss or Damage Leads to Dismissal of COVID-19 Claim

November 16, 2020
Tred R. Eyerly - Insurance Law Hawaii

The insured's claim for business interruption losses due to COVID-19 was dismissed for failure to plead direct physical loss of or damage to property. Malaube LLC v. Greenwich Ins. Co., 2020 U.S. Dist. LEXIS 156027 (S.D. Fla. Aug 26, 2020).

The insured restaurant had to suspend operations when local and state orders closed all onsite dining due to COVID-19. The insured submitted a claim for business interruption losses to its carrier. Greenwich denied the claim because the insured did not experience any physical loss or damage to the insured property. The insured sued.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Court Denies Remand of COVID-19 Case

November 9, 2020
Tred R. Eyerly - Insurance Law Hawaii

The federal district court rejected a challenge to its diversity jurisdiction and rejected the insured's attempt to remand the COVID-19 claims back to state court. Vandelay Hospitality Group LP v. Cincinnati Ins. Co., 2020 U.S. Dist. LEXIS 149196 (N.D. Tex. Aug. 18, 2020).

Vandelay purchased a commercial property policy from Cincinnati through Swingle Collins, its registered broker, and its employee, Baron Cass. The policy was "all risk" and purported to insure three of Vandelay's restaurants for, amoung other things, direct physical loss and loss incurred due to business interruptions.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


Insuring Against Climate Change: How Traditional Insurers and Start-Up Companies are Implementing Innovative Technologies to Address Climate Risks

November 2, 2020
Adam M. Berardi & Marianne Bradley - Complex Insurance Coverage Reporter

Over the last decade, there has been a global increase in the focus on climate change and the risks and dangers associated with it. And for good reason. Damage from climate-related disasters was in the billions of dollars in 2019 alone. California wildfires caused $25 billion in property damage, while Typhoon Hagibis in Japan cost an estimated $15 billion. Other extreme weather events, including rampant brush fires in Australia, widespread droughts in East Africa and severe flooding in South Asia, have had devastating consequences.

Insurers seeking to underwrite weather-related risks face growing challenges. While the availability of insurance can help mitigate some of the impacts of climatic shifts, insurers stand to lose billions of dollars from catastrophic weather events. As a result, some insurers have had to significantly increase premiums in particularly risk-prone areas, while others have found it difficult — if not impossible — to economically write or renew coverage.

Reprinted courtesy of Adam M. Berardi, White and Williams LLP and Marianne Bradley, White and Williams LLP
Mr. Berardi may be contacted at berardia@whiteandwilliams.com
Ms. Bradley may be contacted at bradleym@whiteandwilliams.com


COVID-19 Halts Construction on $200M Anchor Project at Heartwood Preserve in Omaha

October 26, 2020
Star-Herald - Engineering News-Record

Construction is about to stall on a roughly $200 million anchor office project at the Heartwood Preserve site, in light of the COVID-19 crisis.
California -based Applied Underwriters, a national workers' compensation insurer, confirmed that it is suspending construction temporarily in part to "protect" workers and suppliers involved in building its new office complex on a 50-acre stretch southwest of 144th and Pacific Streets .

ENR may be contacted at ENR.com@bnpmedia.com


New York Appellate Court Confirms Insurers Must Advance Defense Costs Under D&O Policies

October 19, 2020
Sergio F. Oehninger, Geoffrey B. Fehling & Meagan R. Cyrus - Hunton Insurance Recovery Blog

A New York appeals court recently granted partial summary judgment in favor of the insureds, finding that excess directors and officers insurers, Westchester Fire Insurance Co., Aspen American Insurance Co. and RSUI Indemnity Co., must advance the defense costs for former executives of the insured entity. The decision is the most recent victory for policyholders in connection with D&O insurance claims asserted in the wake of alleged securities violations and accounting fraud at related real estate investment firms, which have resulted in millions of insurance recoveries for the company and its officers and directors (as previously reported here and here).

Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Meagan R. Cyrus, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
Ms. Cyrus may be contacted at mcyrus@HuntonAK.com


Ninth Circuit Narrowly Construes IP Exclusion, Reaffirming Rules of Insurance Policy Construction

October 12, 2020
Scott P. DeVries & Michael L. Huggins - Hunton Insurance Recovery Blog

On August 19, 2020, the Ninth Circuit issued its decision in My Choice Software, LLC v. Travelers Casualty Insurance Co. of America, No. 19-56030, 2020 WL 4814235, holding that longstanding rules of insurance policy construction required reversal of a district court holding denying a duty to defend. Specifically, the Court determined that the Intellectual Property Exclusion in a Travelers policy did not unambiguously preclude the possibility of coverage for a claim against the Insured, My Choice, and that Travelers accordingly had a duty to defend.

Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Michael L. Huggins, Hunton Andrews Kurth

Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Huggins may be contacted at mhuggins@HuntonAK.com


South African Insurers Agree to Pay for COVID-19 Losses

October 5, 2020
Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery Blog

Over the past couple of months, we have written on decisions by various European insurers to pay policyholders for their COVID-19 related losses. That positive trend is now moving across continents.

In response to COVID-19, South Africa’s government imposed restrictions allowing only essential services to operate under a lockdown imposed in March 2020, resulting in substantial losses for corporations and small businesses. In response to policyholders’ claims, South African insurance companies Santam, Hollard Insurance Company, and Guardrisk Insurance Co. Ltd. have agreed to pay certain business interruption losses resulting from COVID-19 and related government orders. The insurance companies recently announced that they will offer settlements and interim relief to thousands of its insured businesses under business interruption insurance policies that provide coverage for losses resulting from contagious and infectious diseases.

Reprinted courtesy of Sergio F. Oehninger, Hunton
Andrews Kurth
and Daniel Hentschel, Hunton
Andrews Kurth

Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com


Ninth Circuit Rejects Excess Insurer's Attempt to Dispute Exhaustion of Underlying Insurance

September 28, 2020
J. Kelby Van Patten & Jared De Jong - Payne & Fears

This week, in AXIS Reinsurance Co. v. Northrop Grumman Corp., ____ F.3d ____, 2020 WL 5509743 (9th Cir. Sept. 14, 2020), the Ninth Circuit addressed an important question of first impression: When can an excess insurer second-guess an underlying insurer’s decision to pay a claim? Prior to AXIS Reinsurance, there had been no California or the Ninth Circuit case discussing an excess insurer’s right to make a covered-claims challenge to the exhaustion of underlying insurance, even though policyholders frequently encounter such arguments.

Reprinted courtesy of J. Kelby Van Patten, Payne & Fears and Jared De Jong, Payne & Fears
Mr. Van Patten may be contacted at kvp@paynefears.com
Mr. De Jong may be contacted at jdj@paynefears.com


Remand Denied for COVID-19 Business Interruption Claim

September 21, 2020
Tred R. Eyerly - Insurance Law Hawaii

The district court refused to remand plaintiff's claim for business losses due to COVID-19 shut down orders. Mark's Engine Co. No. 28 Restaurant, LLC v. Traveler's Indem. Co. of Conn., 2020 US. District. LEXIS 132841 (C.D. Calif. July 27, 2020).

Plaintiff restaurant sued Traveler's in state court. Los Angele Mayor Eric Garcetti was also named as a defendant for his part in issuing the shut down orders. An Executive Order issued on March 15, 2020 directed all non-essential businesses to close. Plaintiff argued that this triggered its coverage because plaintiff was forced to close by order of Civil Authority. Further, the denial of coverage would not have occurred absent the mayor's order, the propriety of which was an significant issue that allegedly had to be resolved.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


COVID-19 Claim for Business Interruption Survives Motion to Dismiss

September 14, 2020
Tred R. Eyerly - Insurance Law Hawaii

In the first noteworthy decision recognizing a possible business interruption claim due to the presence of COVID-19 and the associated closure orders, the insureds survived a motion to dismiss. Studio 417, Inc. v. The Cincinnati Ins. Co., 2020 U.S. Dist. LEXIS 147600 (W.D. Mo. Aug.12, 2020).

The insureds operated hair salons and a restaurant. They held "all-risk" policies from Cincinnati. The policies provided that Cincinnati would pay for "direct loss" unless excluded. A "Covered Cause of Loss" was defined to mean accidental physical loss or accidental property damage.The policies did not define "physical loss" or "physical damage." The policies also did not have exclusions for virus or communicable disease.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


SantaFe Braun, Inc. v. Insurance Company of North America

September 7, 2020
Michael Velladao - Lewis Brisbois

In SantaFe Braun, Inc. v. Ins. Co. of North America et al., __Cal. App.5th__ (July 13, 2020), the California Court of Appeal followed the reasoning in the recent California Supreme Court decision in Montrose Chemical Corp. of California v. Superior Court, 9 Cal.5th 215 (2020) (“Montrose III”), and found that SantaFe Braun, Inc. (“Braun”) need only exhaust a scheduled primary policy in order to trigger coverage under a first layer excess policy in connection with asbestos bodily injury claims alleging continuous loss. Hence, an excess insurer could not rely on the argument that all scheduled and unscheduled primary insurance available to respond to the losses must be exhausted before coverage is triggered under an excess policy.

Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com


Non-Concurrency Between Ceding Companies and Their Reinsurers for Communicable Disease Exclusions: The Next COVID-19 Shoe to Drop

August 31, 2020
Justin K. Fortescue - White and Williams

As COVID-19 continues to change our everyday way of life, its impact on the insurance/reinsurance industry also continues to develop. The reinsurance renewal process that many insurance companies recently went through exposes yet another impending issue the insurance industry will need to confront – non-concurrency between the coverage afforded by newly issued insurance policies and the reinsurance contracts protecting them.

The American Property Casualty Insurance Association (APCIA) recently released a white paper that revealed that state regulators are often rejecting or delaying the approval of communicable disease exclusions while, at the same time, reinsurers are insisting that such exclusions are to be included in their reinsurance contracts.[1] Willis Re likewise issued a comprehensive report on the impact of COVID-19 that detailed the ways in which many reinsurers sought to add communicable disease exclusions to their reinsurance contracts, particularly where the underlying policy did not contain such an exclusion.[2] This potential non-concurrency in coverage could have far-reaching consequences on the insurance industry.

Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com


First-Dollar Risk Allocated to the Insured Is Not Subject to the Made Whole Doctrine

August 24, 2020
William L. Doerler - The Subrogation Strategist

Pursuant to the equitable made whole doctrine, where there are limited funds available, an insurer cannot pursue subrogation until the insured has been made whole – i.e., fully compensated – for its injuries. In City of Asbury Park v. Star Ins. Co., No. A-20, 083371, 2020 N.J. LEXIS 746, the Supreme Court of New Jersey (Supreme Court) addressed the question of whether the equitable made whole doctrine applies to first-dollar risk an insured takes on, such as a deductible or self-insured retention (SIR). More specifically, the Supreme Court considered whether the insured, here the City of Asbury Park, was entitled to recover all its $400,000 SIR before the insurer, Star Insurance Company (Insurer) could assert its subrogation rights. The court held that the made whole doctrine does not apply to first-dollar risk allocated to the insured.

Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com


New Washington Regulation Requires Mandatory Language in an Insurer’s Denial Letter

August 17, 2020
Kyle Silk-Eglit, Stephanie Ries & Sally Kim - Gordon & Rees Insurance Coverage Law Blog

The Washington State Office of the Insurance Commissioner (the “OIC”) has issued a new regulation, WAC 284-30-770, which mandates that insurers include specific advisory language in “adverse notifications” sent to insureds. Beginning on August 1, 2020, insurers will be required to include the mandatory language in any notice, statement, or document, wherein the insurer denies a claim, issues final payment for less than the amount of the claim submitted, makes an adverse benefit determination, or rescinds, terminates, cancels, or does not renew a policy. In any such notice, the insurer must include the following language:

“If you have questions or concerns about the actions of your insurance company or agent, or would like information on your rights to file an appeal, contact the Washington state Office of the Insurance Commissioner’s consumer protection hotline at 1-800-562-6900 or visit www.insurance.wa.gov. The insurance commissioner protects and educates insurance consumers, advances the public interest, and provides fair and efficient regulation of the insurance industry.”

Reprinted courtesy of Gordon & Rees attorneys Kyle Silk-Eglit, Stephanie Ries and Sally Kim
Mr. Silk-Eglit may be contacted at ksilkeglit@grsm.com
Ms. Ries may be contacted at sries@grsm.com
Ms. Kim may be contacted at sallykim@grsm.com


Fourth Circuit Finds False Claims Seeking Medicaid Reimbursement “Arise Out Of” Medical Incident Triggering E&O Coverage

August 10, 2020
Philip Brandt - Traub Lieberman

In Affinity Living Grp., LLC v. StarStone Specialty Ins. Co., 959 F.3d 634 (4th Cir. 2020), the United States Court of Appeals for the Fourth Circuit addressed whether a False Claims Act (“FCA”) suit against an insured for allegedly submitting false Medicaid reimbursement claims fell within an errors and omissions policy’s coverage grant for “damages resulting from a claim arising out of a medical incident.” The insured, an operator of adult care homes, allegedly submitted reimbursement claims for resident services that were never provided in violation of the federal False Claims Act and the North Carolina False Claims Act. A private party brought a qui tam action, and the insured sought insurance coverage for the suit.

Mr. Brandt may be contacted at pbrandt@tlsslaw.com



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