The Evolving Landscape of Insurance Coverage for False Claims Act (FCA) Probes: Understanding the Impact of a Delaware Court Ruling

Companies operating in heavily regulated industries are becoming increasingly familiar with Department of Justice (DOJ) Civil Investigative Demands (CID). Traditionally viewed as a pre‑suit investigative tool, a CID may require collecting, reviewing, and producing documents; preparing for and attending witness interviews; or meeting and negotiating with DOJ. These steps can impose significant legal and operational costs on an entity long before any complaint is filed.

A recent Delaware Superior Court decision, The Cigna Group v. XL Specialty Insurance Co., strengthens policyholders’ arguments that the costs associated with responding to a government demand may be reimbursable by insurers. In Cigna, the court held that a DOJ CID issued in connection with a False Claims Act (FCA) investigation constituted a covered “Claim” under a managed care errors and omissions (E&O) policy.  This ruling triggered the insurer’s obligation to reimburse defense expenses while responding to the CID. The Cigna decision has important implications for any company facing an FCA CID and seeking insurance coverage for response costs.

Claim vs. Government Investigation

In this matter, Cigna sought reimbursement for millions of dollars incurred responding to a DOJ CID focused on “one‑way chart reviews” allegedly conducted by Medicare Advantage Organizations to find ways to increase reimbursements, but not to seek avenues to decrease payments. The insurers denied coverage, arguing that a CID is merely a “Governmental Investigation” for which only limited, non-indemnity coverage was available under the policy. In contrast, if a CID were considered a “Claim,” Cigna’s response to the CID would have been subject to full defense cost reimbursement.

The policy at issue drew a formal distinction between the two concepts. A “Claim” was defined as any written notice indicating an intent to hold the insured responsible for a “Wrongful Act.” A “Governmental Investigation” was defined as requests for information as part of a governmental probe and specifically included civil investigative demands and subpoenas.

The insurers argued that because the policy explicitly listed CIDs under “Governmental Investigations,” a CID could never be a “Claim.” Further, they argued that treating a CID as a Claim rendered the “Governmental Investigation” provisions meaningless. The Cigna court rejected both arguments. It explained that some CIDs—such as those issued to third parties or witnesses unrelated to suspected wrongdoing—may remain purely investigative and fall outside claim coverage. What mattered under this policy was whether the CID sought to hold the recipient itself responsible for an alleged violation.

As it previously did in Conduent State Healthcare LLC v. AIG Specialty Ins. Co., 2019 WL 2612829 (Del. Super. June 24, 2019), the Delaware Superior Court emphasized that coverage turns not on labels, but on the specific language and context of the CID, as well as the function and effect of the government’s demand. The key question was whether the CID reflected the DOJ’s intent to hold Cigna responsible for alleged wrongful conduct, therefore qualifying under the policy’s definition of a “Claim.”

The outcome may have been different had the CID requested neutral, generic information. However, it identified specific conduct (Cigna’s alleged one‑way chart review practices), linked that conduct to a specific statutory violation (the FCA), and carried the force of the government’s enforcement authority. Further, because a government entity with police powers issued the CID, Cigna’s failure to comply could result in judicial enforcement and sanctions. Under those circumstances, the court found it artificial to distinguish between “investigating” misconduct and “alleging” misconduct.

This case shows that courts are now more likely to move beyond technical policy differences and focus on how government enforcement measures actually affect companies facing FCA CIDs.

Practical Action Steps After Cigna Ruling

For a company operating in a highly regulated industry seeking insurance coverage, this decision provides a blueprint to follow while negotiating coverage language with respect to CIDs.

For insureds already facing a CID, although coverage for compliance will ultimately depend on the actual language of the applicable insurance policies, there are several steps to consider in light of the Cigna decision.

• Conduct close legal review of policy language for all policies—including but not limited to E&O policies—to determine whether the Cigna case may provide latitude to seek coverage previously unavailable.
• Provide prompt notice to insurers in order to preserve rights while the investigation unfolds.

• Document how the CID signals an intent to hold the company responsible for alleged wrongdoing, relying on the CID’s description of the purported conduct and the statutory and regulatory backdrop. If possible, receive confirmation of the same from the issuing entity.
• Before sharing any information with insurers, consult legal counsel to consider whether to disclose and what to disclose to ensure privilege is not waived.

DOJ enforcement under the FCA continues to expand, particularly in healthcare and Medicare Advantage matters. CIDs are often the first—and most expensive—stage of that enforcement process. The Cigna decision strengthens policyholders’ ability to shift at least part of that financial burden to insurers, provided the CID reflects an intent to hold the company accountable for alleged wrongdoing.

Foley is here to help you address the short- and long-term impacts in the wake of change. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Government Enforcement Defense and Investigations Group with any questions.