By Michael Menapace, Esq.
Many individuals and businesses hold some amount of cryptocurrency. According to a recent survey, nearly 10 percent of Americans have invested in cryptocurrency since the first Bitcoin was “mined” in 2009. And, along with the rise in prevalence of virtual currencies in recent years has come a surge in cryptocurrency theft, with one Ponzi scheme defrauding cryptocurrency investors out of $2.9 billion dollars in 2019. Those who invest in, use, and hold cryptocurrency should protect their assets. While individuals can purchase insurance to protect themselves if certain types of assets are destroyed or stolen, such as a house, car, or personal property, individuals may have difficulty obtaining coverage for their cryptocurrency.
Bitcoin is just one cryptocurrency built on the technology called the blockchain. Other virtual currencies include Ethereum, Ripple, Litecoin, Monero, and ZCash.
Homeowner’s insurance protects an insured against the loss of certain property. For example, if a thief breaks into your home and steals your television, that loss will likely be a covered loss of property under a standard homeowner’s policy. For an overview of what homeowners insurance typically covers, see here.
Is theft of cryptocurrency covered under homeowners insurance?
But, is an owner of cryptocurrency insured if a thief hacks their computer and steals virtual currency? Part of the answer relates to the question – what is cryptocurrency? Are these virtual currencies a security, money, property, a commodity, or something else? As discussed below, it seems unlikely, and inappropriate, for the loss of cryptocurrency to be a covered loss under a homeowners policy.
The Securities and Exchange Commission takes the position that cryptocurrency is, or at least can be, a “security” and cautions that “issuers [of virtual currencies] cannot avoid the federal securities laws just by labeling their product a cryptocurrency or a digital token.” On the other hand, the IRS has issued Notice 2014-21, identifying cryptocurrency as “property” for federal income tax purposes. Still a third possibility is that cryptocurrency, which can be used to purchase goods and services, is properly classified as money.
As the above demonstrates, the same word, or virtual product, can have different meanings depending on the context. Here, we are considering how cryptocurrency is interpreted under an insurance policy. There does not seem to be any reason why cryptocurrency must be treated as the same thing by the SEC, IRS and insurers. Therefore, the pronouncements of the SEC or IRS should be only of limited assistance.
A common homeowners insurance policy states that the insurer will cover the loss of the insured’s dwelling, other structures, and personal property. Crytocurrency is clearly not a dwelling or structure, so the question is whether cryptocurrency is “property” in the general sense because homeowners policies often protect against the loss of property. Beyond the IRS guidance discussed above, there is authority for the position that cryptocurrency is property. For example, an Ohio state trial court held that cryptocurrency was property covered by a homeowners policy. That ruling is discussed further below.
Not all homeowners policies are the same
Even if cryptocurrency is property in a general way, however, the insurance analysis does not end there because not all property is treated equally under a homeowners policy. For example, coverage for the loss of personal property often has a $200 sublimit for “money, bank notes, bullion, gold and [other precious metals], coins, medals, scrip, stored value cards and smart cards.” Likewise, a homeowners policy may have a sublimit of $1,500 for “securities, accounts, deeds, letters, of credit, notes other than bank notes, . . . tickets and stamps.” When considering these common sublimits, is it more appropriate to apply the $200 limit for money or the $1,500 limit for those items akin to securities? At least for some cryptocurrencies, like Bitcoin, an analogy to money seems more appropriate because Bitcoin is specifically designed to be an alternative to traditional currency. Considering an individual’s ownership of Bitcoin a security does not seem to make sense. After all, when one thinks of a person owning a security, such as a share of stock in Acme Corp, the comparisons with Bitcoin are thin.
Beyond the issue of whether cryptocurrency is insured generic property, money, or a security, there is another fundamental issue to consider under a homeowners policy. The insuring agreement in many homeowners policies states that personal property is insured for “direct physical loss to the property described” such loss from vandalism or theft. Because cryptocurrency is a virtual currency, there is nothing to physically lose or destroy. What is lost or destroyed is the record of ownership or the “key” to demonstrate ownership of the currency. Cash can be burden by fire – not so for a currency that never exists physically. A policyholder would have a difficult time explaining how the plain meaning of “direct physical loss” is met when the virtual currency is stolen.
A couple cautionary notes are required for this discussion. First, not all homeowners policies are the same. The terms and conditions of each policy will control; therefore, a generalized discussion about homeowners policies is just that – general. For example, some policies treat money and securities the same, which could change or eliminate the need for the above analysis.
Is cryptocurrency considered property?
Second, individuals should not take too much comfort in the one reported decision on cryptocurrency as property under a homeowners policy. In the Kimmelman v. Wayne Insurance Group decision from an Ohio trial court, the court ruled that cryptocurrency was generic property, not money, and the policy’s $200 sublimit did not apply. Whether this decision is persuasive in other courts remains to be seen, but there are reasons why it should not. The Ohio court did not provide a fulsome analysis of the issues, which limits its usefulness. For example, there is no discussion on whether the policy’s submits for electronic funds or securities should apply. In addition, the policy language is at issue in that it was drafted in 1999, years before cryptocurrencies were invented. Newer policy language may not be the same. Finally, the court relied heavily on the IRS guidance mentioned above, which states that cryptocurrencies are treated as property. But that IRS guidance also states that cryptocurrency is treated as property “for income tax purposes.” While IRS guidance on tax issues is persuasive, that guidance should have no impact on how insurance contracts should be interpreted.
The court was also persuaded that Bitcoin was general property, not money, because it could be exchanged for money, i.e. it is a convertible virtual currency. But that rationale doesn’t explain that various forms of currency are converted to other kinds of currency all the time, e.g. Euros are converted into dollars. Indeed, Bitcoin was originally conceived as a currency “akin to cash” by Satoshi Nakkamoto in his whitepaper Bitcoin: A Peer-to-Peer Electronic Cash System. And outlets such as the Wall Street Journal report Bitcoin value under “Currencies” with the Euro, U.S. Dollar, the Japanese Yen, etc., not under Stocks, Bonds or Commodities. No one would argue that the Yen is not money but is property that can be converted into U.S. Dollars.
It also bears a mention that the focus on Bitcoin, even if the Ohio decision were correct, does not necessarily apply to other cryptocurrency platforms that have different purposes from Bitcoin. For example, Ethereum was created for a different purpose from Bitcoin. Ethereum, while it has a value associated with its coins/tokens, its original and fundamental purpose included providing a platform where one can build out new applications rather than simply being a substitute for traditional currency. (For an explanation of the different types of cryptocurrencies, see this tutorial (last updated Jan. 2020)). In all, I believe that Kimmelman was wrongly decided or, at least, of limited persuasive value that other courts should not find persuasive.
What Can Individuals Do?
The bottom line is that individuals should not rely on their homeowners policies to protect them from the loss of cryptocurrencies. Commercial entities, in contrast, can buy crime policies or cyber insurance policies, which are largely unavailable to private individuals. What can individuals do? They must take proactive steps to protect themselves rather than relying on someone compensate them if their assets are lost or stolen.
For example, if an individual is using “hot” storage for their Bitcoin, i.e. having the virtual currency accessible online, the currency is vulnerable to theft by hacking or ransomware attack. The owner might consider, therefore, having a commercial third party hold the virtual token or coin in its digital wallet for the individual. That commercial entity can be insured under a crime or cyber policy. If the individual is using “cold” storage, e.g. storing the currency offline on a flash drive, the cold storage is vulnerable to physical destruction or old-fashioned theft. In that case, the individual should secure the flash drive from theft and physical description by keeping it in a fire-proof safe. Frankly, these are precautions that individuals should be taking even if the risk of loss were covered by a homeowners policy. But, until coverage for cybercurrency for individuals is widely available under a homeowners policy, owners would be wise to take steps to protect their digital assets from bad actors and physical accidents.
Michael Menapace is a Non-Resident Scholar of the Insurance Information Institute, a partner at Wiggin and Dana LLP, and a professor of Insurance Law at the Quinnipiac University School of Law.