Effective January 1, 2022, Chubb Insurance Company has clarified some of the terms of coverage under US Sailing’s commercial insurance as it pertains to Certified Race Officials and Certified Instructors. This change has resulted in a change to secondary liability insurance coverage for Certified Race Officials and Certified Instructors under the US Sailing policy.

Starting this year, US Sailing’s commercial insurance will provide liability coverage for Certified Instructors and Certified Race Officials only when volunteering or working at US Sailing Championships, US Sailing Events and US Sailing Courses.

US Sailing’s insurance will apply to Certified Instructors when they are volunteers for US Sailing or are paid by US Sailing to coach, teach, or help run a US Sailing Championship, a US Sailing Event, or a US Sailing Course. It does not apply to Certified Instructors employed by (or volunteering at) a sailing school or organization, community program, sailing club, or other organization outside of a US Sailing US Sailing Championship, a US Sailing Event, or a US Sailing run Course.

Coverage under US Sailing’s commercial policy does not apply to Certified Instructors who are a sole proprietor or owner of a Corporation/LLC to teach sailing, coach sailing, coach a race team(s), or offer private lessons.

US Sailing’s insurance will apply to Certified Race Officials when they are volunteers for US Sailing or are paid by US Sailing for actions related to being a Certified Race Official at a US Sailing Championship, a US Sailing Event, or a US Sailing Course. It does not apply to Certified Race Officials employed by (or volunteering at) a sailing school or organization, community program, sailing club, or other organization, outside of a US Sailing US Sailing Championship, a US Sailing Event, or a US Sailing run Course.

Coverage under US Sailing’s commercial policy does not apply to Certified Race Officials who are the sole proprietor or owner of a Corporation/LLC for actions related to being a Certified Race Official, outside of a US Sailing US Sailing Championship, a US Sailing Event, or a US Sailing run Course.

As has always been the case, where Certified Instructors and/or Certified Race Officials are employed by or volunteer at a sailing school, club or organization, primary insurance should be provided by the sailing school, club, or organization. In cases where a Certified Instructor or Certified Race Official establishes their own coaching/sailing establishment, insurance should be purchased by the individual.

In light of these changes, US Sailing encourages each Certified Instructor and Certified Race Official to be cognizant of the insurance policy in place at the sailing school, club or organization where they may work or volunteer.

This change was not initiated by US Sailing, but rather due to the underwriter’s desire to clarify the extent of liability coverage provided under the US Sailing commercial policy because of a recent, significant claim; the only claim that has been made under the secondary liability coverage. Additionally, this is a result of an increasingly challenging insurance environment.

Since US Sailing was informed of the change that the underwriter was making, we have been working to both obtain the necessary details to appropriately communicate the effects of the change as well as finding alternative solutions.  We have made progress in both of those areas and while the right solution has not yet been created, we are continuing to talk with a variety of insurers and others in the insurance market in that regard and have been able to obtain sufficient clarity in the necessary details so as to be able to effectively communicate with you now.  US Sailing will of course continue to work with the appropriate people in the insurance market to provide the best and most appropriate options for our stakeholders and provide updates when those are available.

We understand you may have questions about how these changes affect you and/or your club. US Sailing has set up a Frequently Asked Questions document for you to access here https://www.ussailing.org/education/instructor/resources/instructor-insurance/ and/or https://www.ussailing.org/competition/rules-officiating/resources/competition-rules-officiating-resources-insurance-for-race-officials. If you have further questions, please email insurance@ussailing.org.

To see when you qualify for coverage as a Certified Instructor, read more here: https://www.gowrie.com/pdfs/USSailing_CertifiedInstructors_GowrieInsurance.pdf

To see when you qualify for coverage as a Certified Race Official, read more here:

https://www.gowrie.com/pdfs/USSailing_CertifiedRaceOfficials_GowrieInsurance.pdf

Feb 14, 2022

The Los Angeles Rams fought back to win yesterday’s Super Bowl in the last two minutes of the game, with its biggest stars — Cooper Kupp and Aaron Donald — making sure that victory would not slip through the team’s grasp.

The game also offered an opportunity for brands to compete for the attention of consumers on the nation’s biggest broadcast stage. Some came up big, like the Ram’s stars, while others will just have to wait ‘til next year.

Adweek’s top 10 spots put Coinbase’s homage to “Pong” at number one. The commercial featured a color-changing QR code that slowly bounced around the screen. Viewers who scanned the code were linked to a landing page with a promotional credit.

The other spots making Adweek’s top 10 included Frito-Lay’s “Golden Memories”, Rocket Mortgage “Dream House”, FTX “Don’t Miss Out”, General Motors “Dr. EV-il”, Squarespace “Sally’s Seashells”, Nissan “Thrill Driver”, Amazon Studios “Lord of the Rings: The Rings of Power” and Planet Fitness “What’s Gotten Into Lindsay?”.

Ad Age broke its list of top spots out by the game’s quarters, and Expedia’s “Stuff” took the top spot in the first. The commercial starring Ewan MacGregor asks the question, “Do you think any of us will look back on our lives and regret the things we didn’t buy or the places we didn’t go?”

The second quarter came up big for five-star spots, according to the publication.

Uber Eats’ “Uber Don’t Eats” enlisted celebrities Nicholas Braun, Jennifer Coolidge and Gwyneth Paltow to show that the company does more than just deliver meals from restaurants. 

Rocket Mortgage’s “Barbie Dream House” mixed realities to bring home the message that there is one place to go if you’re looking to finance a home purchase.

General Motors’ “New Generation” spots featured Jamie-Lynn Siegler from the Sopranos driving a Chevy Silverado EV to pick up her brother from the show. Tony may be gone, but his stage kids are driving on.

Toyota’s “The Joneses” pitted Tommy Lee Jones, Leslie Jones and Rashida Jones in a race behind the wheels of the auto maker’s Tundra truck. (LOL.)

The third quarter had two winners. Google Pixel’s “Seen on Pixel” spot, which shows that the company’s smartphone now fixes a problem with traditional cameras that cause Black Americans to be photographed as too dark. The spot uses personal testimonials to make the case particularly compelling. Pringles “Stuck In” took a much lighter approach and a gentle jab at its own stacked packaging.

The fourth quarter may have provided the most exciting moments, but were a dud in terms of commercials, according to Ad Age.

It’s often said that “everything old is new again” in the world of federal procurement. Showing the wisdom of this saying, the Department of Defense (DoD) issued two final rules last week allowing DoD to make greater use of prior commercial item determinations and put the burden back on the government to challenge data rights assertions based on the commerciality of a product. The rules should come as welcomed news to government contractors and government contracting officers alike, as they represent a small but important return to the “good old days” of commercial items contracting.

Commercial Item Determinations

The first final rule revises Defense Federal Acquisition Regulation (DFARS) 212.102, effective April 28, 2022, to make it easier for DoD contracting officers (CO) to rely on past commercial sales to the government as a prior commercial item determination for a particular item. The rule also updates DFARS 212.102(a)(iii) to clarify that commercial item determinations are only required for acquisitions that exceed the simplified acquisition threshold. 

The rule should benefit both the government and contractors because COs can soon determine that an item is a commercial product based on prior commerciality determinations in the Commercial Item Database, a prior contract, or other evidence that an item has previously been procured using FAR Part 12 procedures. This reduces the burden on COs to prepare new commercial item determinations and on contractors to provide information about commercial products they have already sold to the United States. 

Validation of Proprietary and Technical Data

The second final rule implements Section 865 of the National Defense Authorization Act (NDAA) for fiscal year 2019, which repealed years of legislative changes to the statutory presumption that commercial items are developed at private expense. Specifically, the rule revises DFARS 227.7103-13 (government right to review, verify, challenge, and validate asserted restrictions) and DFARS 252.227-7037 (Validation of Restrictive Markings on Technical Data) to again be consistent with “the original Federal Acquisition Streamlining Act (FASA).” 

Going forward, DoD must presume that commercial products were developed exclusively at private expense when evaluating data rights assertions made by contractors and subcontractors. Though the government still has the right to challenge such assertions under DFARS 227.7103-13, beginning April 28, 2022: (1) a contractor or subcontractor is no longer required to submit a justification in response to such a challenge, and (2) the government can only overcome the presumption of commerciality if it can provide specific information that demonstrates the item was not deployed exclusively as private expense. In most cases, this type of information “may exist but be in the custody and control of the contractor” and, thus, the contractor’s asserted rights likely will control.  

DoD notes several benefits stemming from this final rule. First, contractors will no longer be required to respond to challenges or pre-challenge requests for information when asserting data rights premised on commerciality or provide evidence establishing that an item was developed exclusively at private expense. Second, the government is less likely to initiate challenges because of the requirement that it already possess or be able to identify sufficient information to disprove the contractor’s assertions. 

Conclusion

The “new” DoD rules are a welcome throwback to the “old FASA days” and provide immediate, tangible benefits to contractors and subcontractors supplying commercial products and services to the government. With similar measures up next on DoD’s 2022 regulatory agenda (previously discussed here), here’s hoping DoD will consider making additional changes to streamline acquisition timelines and compliance obligations in commercial items procurements.

For more information about DoD’s changes to commercial item contracts, please contact one of the Miller & Chevalier attorneys listed below.

Alex L. Sarria, asarria@milchev.com, 202-626-5822

Jason N. Workmaster, jworkmaster@milchev.com, 202-656-5893

Connor W. Farrell, cfarrell@milchev.com, 202-626-5925

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