The insurance company Ace American has to pay for the losses:
On 6th December 2021, the New Jersey Superior Court granted partial summary judgment (attached) in favour of Merck and International Indemnity, declaring that the War or Hostile Acts exclusion was inapplicable to the dispute.
Merck suffered US$1.4 billion in business interruption losses from the Notpetya cyber attack of 2017 which were claimed against “all risks” property re/insurance policies providing coverage for losses resulting from destruction or corruption of computer data and software.
The parties disputed whether the Notpetya malware which affected Merck’s computers in 2017 was an instrument of the Russian government, so that the War or Hostile Acts exclusion would apply to the loss.
The Court noted that Merck was a sophisticated and knowledgeable party, but there was no indication that the exclusion had been negotiated since it was in standard language. The Court, therefore, applied, under New Jersey law, the doctrine of construction of insurance contracts that gives prevalence to the reasonable expectations of the insured, even in exceptional circumstances when the literal meaning of the policy is plain.
Merck argued that the attack was not “an official state action,” which I’m surprised wasn’t successfully disputed.