Insurer Not Required to Show Prejudice from an Insured’s Late Notice When the Parties Contract for a Specific Reporting Period

The Fifth Circuit Court of Appeals recently affirmed an order granting summary judgment in favor of the Firm’s insurer client on an issue of first impression in Texas. The issue before the trial court was whether, under Texas law, an insurer is required to demonstrate prejudice resulting from an insured’s failure to comply with an agreed term set in an endorsement to the parties’ insurance contract establishing a specific time limit for an insured to give the insurer notice of a claim.

The case involved alleged damage to an insured’s commercial property from a hailstorm. The insured did not report the alleged loss to its insurer until approximately 17 months after the date of loss. The insurer denied the claim based on a one-year notice requirement in a policy endorsement. The Texas Windstorm or Hail Loss Conditions Amendment Endorsement stated that:

In addition to your obligation to provide us with prompt notice of loss or damage, with respect to any claim where notice of the claim is reported to us more than one year after the reported date of loss or damage, this policy shall not provide coverage for such claims.

The insured sued the insurer in Houston federal court, alleging causes of action for breach of contract and violations of the Texas Insurance Code. The insured argued the insurer was required to show prejudice from the insured’s late notice; the insurer argued that a showing of prejudice was not required. The trial court recognized that this issue had not been decided by the Texas Supreme Court of the Fifth Circuit Court of Appeals.

The Firm moved for summary judgment on behalf of the insurer based on the policy’s endorsement. The trial court granted summary judgment in favor of the insurer and dismissed the insured’s claims.

The Fifth Circuit Court of Appeals affirmed the trial court’s order and held that while insurers are required to show prejudice following the insured’s breach of general provisions requiring notice of loss or damage “as soon as practicable” (and variations thereof), that shifting burden was not required in this case where the parties signed a very specific endorsement that required the insured to submit claims for wind or hail losses within one year.

The Fifth Circuit’s decision is a significant victory for insurers which are often faced with the heavy evidentiary burden of establishing prejudice from an insured’s late notice of property damage claims.

Large Insurer Overturns $12M Arbitration Award in New York Appellate Court

Gordon Rees Scully Mansukhani partners Dennis O. Brown and Greil Roberts obtained a significant appeal win in a complex insurance coverage case for a major insurer on October 25, 2018, when a New York state appeals court vacated a nearly $12 Million arbitration award to Allied Capital Corporation.

The appeal arose out of an arbitration that began in 2010.  Allied Capital sought coverage from its insurer for a $10.1 million payment made to settle claims by the federal government arising out of the False Claims Act. The insurer denied coverage, and Allied filed for arbitration under its insurance policies, seeking to be compensated for the $10.1 million settlement payment plus defense costs.

In March 2016, in a 2-1 decision, the arbitration panel said the $10.1 million settlement was not a “Loss” under the policy; thus, Allied could not recover that amount. However, the arbitration panel decided that Allied was entitled to its defense costs, though the arbitration panel reserved the amount of defense costs to be awarded for a subsequent proceeding.

Not long thereafter, Allied sought reconsideration of the March 2016 award on the basis that the majority of the arbitration panel erred in finding that Allied did not suffer a “Loss” under the policy. The arbitration panel, in another 2-1 decision, determined that it was permitted to reconsider the March 2016 award and reversed itself, finding that the $10.1 million amount was a “Loss” under the policy.

The insurance company petitioned in New York state court for an order vacating the reconsidered award as having been rendered in excess of the powers and authority available to the arbitration panel. Specifically, the insurance company argued that the panel exceeded its authority based on the common law doctrine of functus officio. Under functus officio, an arbitrator cannot alter its final award except in limited circumstances.

The insurer argued that the March 2016 partial final award was final in the sense that it determined the extent of the insurer’s liability for Allied’s claim.  The insurance company argued that Allied’s counsel agreed to bifurcation of two issues: (1) the issue of coverage for Allied’s claim to be indemnified for the $10.1 million, and (2) whether Allied was entitled to recover defense costs and, if so, the amount of such recovery. Since the arbitration panel had resolved the first issue completely in the March 2016 award, the arbitration panel had no authority to subsequently alter that award. For its part, Allied argued that there had been no bifurcation, and since the issue of defense costs had not been fully resolved, there was no final award and the arbitration panel was permitted to reconsider its decision.

The state court denied the petition, and the insurance company appealed.  On October 25, 2018, in a 4-1 decision, the Appellate Division of the Supreme Court of New York, First Department, agreed with the insurance company’s position that the panel exceeded its authority and improperly reconsidered the original partial final award:

There is nothing in the record that remotely suggests that the parties or the panel believed that the [March 2016 award] would be anything less than a final determination of such issues and under the functus officio doctrine, it would be improper and in excess of the panel’s authority for such final determination to be revisited.

The mere fact that the amount of defense costs had not been decided, the Court found, did not permit the panel’s reconsideration of the award: “In this case, the panel was functus officio with respect to the [partial final award] and thus, the panel’s reconsideration of the [partial final award] on substantive grounds was improper and exceeded its authority.”

The Court rejected Allied’s argument that, since the arbitration panel itself had found that it was not functus officio, it was entitled to reconsider the March 2016 award. The Court reasoned that, by Allied’s arguments, an arbitrator could avoid exceeding its authority when reconsidering a partial final award as long as the arbitrator stated that the parties did not bifurcate the proceedings or that the arbitrator did not intend for the award to be final as to a particular issue. However, “there is no support for such theory in the relevant case law,” the Court concluded.

Colorado Supreme Court Issues Decisions on Statute of Limitations for Statutory Bad Faith Claims and the Implied Waiver of Attorney-Client Privilege

The Colorado Supreme Court has been busy the past two weeks, issuing a couple rulings that should be of interest to the insurance industry:

Statute of Limitations for Bad Faith Statute: In Rooftop Restoration, Inc. v. American Family Mutual Insurance Co., 2018 CO 44 (May 29, 2018), the Colorado Supreme Court held that the one-year statute of limitations that applies to penalties, does not apply to claims brought under C.R.S. 10-3-1116, Colorado’s statutory cause of action for unreasonable delay or denial of benefits. Section 10-3-1116 provides that a first-party claimant whose claim for payment of benefits has been unreasonably delayed or denied may seek to recover attorney fees, costs, and two times the covered benefit, in addition to the covered benefit. A separate Colorado statute, CRS 13-80-103(1)(d) provides a one-year statute of limitations for “any penalty or forfeiture of any penal statutes.” To arrive at the conclusion that the double damages available under section 10-3-1116 is not a penalty, the Court looked at yet another statutory provision, governing accrual of causes of action for penalties, which provides that a penalty cause of action accrues when “the determination of overpayment or delinquency . . . is no longer subject to appeal.” The Court stated that because a cause of action under 10-3-1116 “never leads to a determination of overpayment or delinquency . . . the claim would never accrue, and the statute of limitations would be rendered meaningless.” Para. 15. Presumably, the default two-year statute of limitations, provided by CRS 13-80-102(1)(i), will now be found to apply to causes of action seeking damages for undue delay or denial of insurance benefits.

Implied Waiver of Attorney Client Privilege: On June 4, 2018, the Court held that the attorney-client privilege was not impliedly waived when former counsel for State Farm submitted an affidavit refuting factual allegations of plaintiff. In In re Plaintiff: State Farm Fire & Cas. Co. v. Defendants: Gary J. Griggs & Susan A. Goddard, 2018 CO 50, a State Farm adjuster had testified that a medical lien was in the amount of $264,075. State Farm’s attorney at the time then discovered that the lien was actually in the amount of $264.75. While the attorney was investigating the source of the error, plaintiff’s counsel moved to disqualify State Farm’s counsel (based on the attorney’s previous attorney-client relationship with the firm representing the plaintiff). The court disqualified the attorney. The new attorney for State Farm then disclosed the correct lien amount to plaintiff, and noted that the service provider was the source of the error. Plaintiff then sought sanctions against State Farm, in the form of a directed verdict on her bad faith claim, alleging that State Farm deliberately and intentionally concealed the correct lien information. In response, State Farm submitted an affidavit from the former attorney, which stated that at the time of his disqualification, he was still investigating the source of the lien error. Plaintiff argued that by submitting the attorney affidavit, State Farm put at issue the attorney’s advice. The Supreme Court disagreed, explaining that the mere possibility that privileged information may become relevant in a lawsuit is not enough to imply a waiver. Rather, the party asserting waiver “must show that the client asserted a claim or defense that depends on privileged information.” Para. 18. The Supreme Court found that the attorney affidavit did not refer to any claims or defenses, did not refer to advice provided by the attorney to State Farm, and was not offered in support of a claim or defense, but rather to rebut plaintiff’s factual argument. As such, the Court concluded that “State Farm’s submission of the [attorney] affidavit did not place privileged communications at issue and, therefore, did not result in an implied waiver of the attorney-client privilege.” Para. 24.

If there are any questions about either of the above cases or if you assistance with any insurance coverage, bad faith, or mountain states litigation issues, please contact

San Diego Team Prevails with Motion to Dismiss First Amended Complaint without Leave to Amend on behalf of Multi-National Insurance Company

On March 6, 2018, the United States District Court for the Southern District of California granted the firm’s client, a multi-national insurance company, the motion to dismiss the plaintiff’s first amended complaint without leave to amend. The motion was filed by Gordon Rees Scully Mansukhani San Diego partner Matthew G. Kleiner and senior counsel Jordan S. Derringer.

The plaintiff originally filed her complaint alleging causes of action for breach of contract, bad faith, breach of fiduciary duty and fraud based upon negligent misrepresentation and concealment. The plaintiff’s claims arose out of the insurer’s denial of a claim for accidental death benefits in connection with the death of her husband resulting from a plane crash. The plaintiff alleged that the insurer client provided inadequate notice of an aviation exclusion that was present in a replacement insurance policy and allegedly broader than an aviation exclusion in her prior policy issued by another insurer. According to the plaintiff, the exclusion was not clear and conspicuous and was unconscionable. The plaintiff further stated that the client’s letter advising that her policy was similar to her previous insurance policy was incorrect and therefore, Gordon & Rees’s client breached its fiduciary duty to the plaintiff. The plaintiff’s contention regarding the letter also formed the basis of the negligent misrepresentation and concealment causes of actions.

After Gordon & Rees’s attorneys were successful in filing a motion to dismiss, the plaintiff filed a first amended complaint setting forth identical causes of action but alleging that Gordon & Rees’s client’s policy included a sickness exclusion that was not present in her previous insurance company’s policy and that this policy contained a non-contributory benefit that was not available under the current policy. Gordon & Rees attorneys again filed a motion to dismiss the first amended complaint arguing that the plaintiff failed to correct the defects from the original complaint and that the additional allegations regarding the presence of a sickness exclusion and the lack of a non-contributory benefit were irrelevant as the plaintiff’s claim was not denied on the sickness exclusion and she failed to prove entitlement to any benefits under the her previous policy.

The trial court granted Gordon & Rees’s motion to dismiss the amended complaint without leave to amend and held that the aviation exclusion in the policy was plain, clear and conspicuous. The court also found that the exclusion was not unconscionable and that the notice of change of insurance was plain, clear and conspicuous because the aviation exclusion in the client’s policy was not a reduction in coverage because the plaintiff was not entitled to benefits under her current or previous policy. As the plaintiff’s breach of contract cause of action failed, the plaintiff was unable to state a cause of action for bad faith. The court held that the plaintiff failed to state a cause of action for breach of fiduciary duty because generally, an insurer is not a fiduciary of the insured and the plaintiff failed to demonstrate that the insurer assumed a higher duty of care or knowingly undertook to act on behalf of or for the benefit of the plaintiff. With respect to the plaintiff’s fraud claims, the court held that the insurer’s statement that the policies were similar was not a misrepresentation and, even if it were, the plaintiff’s reliance thereon was not justified. The court also held that the plaintiff did not sustain any damages in connection with these claims because she could not prove an entitlement to benefits under the previous insurance company’s policy. Finding that leave to amend would be futile, the court dismissed the first amended complaint with prejudice and ordered judgment in favor of Gordon & Rees’s client.

To read the court’s full decision, please click here.

Insurance Adjuster Employed by an Insurance Company May Be Liable for Bad Faith in Washington

As a general proposition, an adjuster working for an insurance company is not subject to personal liability under the common law or under state insurance laws for conduct within the scope of his/her employment. Recently, however, the Washington Court of Appeals, Division One, in Keodalah v. Allstate Ins. Co., 2018 Wash. App. LEXIS 685 (2018), held that an individual adjuster, employed by an insurance company, may be held liable for bad faith and violation of the Washington Consumer Protection Act (“CPA”).

In Keodalah, Moun Keodalah (“Keodalah”) was involved in an accident with a motorcycle, after which Keodalah sought uninsured/underinsured motorist (“UIM”) benefits of $25,000 under his auto policy issued by Allstate. Allstate offered $1,600 based on an assessment that Keodalah was 70 percent at fault, even though the Seattle Police Department and the accident reconstruction firm hired by Allstate concluded that the accident was caused by the excessive speed of the motorcyclist. When Keodalah questioned Allstate’s evaluation, Allstate increased its offer to $5,000. Thereafter, Keodalah sued Allstate for UIM benefits.  Despite having the police investigation report, its own accident reconstruction firm’s findings, and the 30(b)(6) deposition testimony of the Allstate adjuster, who acknowledged that Keodalah had not run a stop sign and had not been on his cell phone at the time of the accident, Allstate maintained its position that Keodalah was 70 percent at fault. At trial, the jury determined that the motorcyclist was 100 percent at fault and awarded Keodalah $108,868.20 for his injuries, lost wages, and medical expenses.

Keodalah then filed a second lawsuit against Allstate and the adjuster, including claims under the Insurance Fair Conduct Act (“IFCA”), the CPA, as well as for insurance bad faith. The adjuster moved to dismiss the claims against her under Rule 12(b)(6). The trial court granted the motion but certified the case for discretionary review. First, the court held that there was no private cause of action for violation of a regulation under the IFCA, following the recent Washington Supreme Court decision in Perez-Cristantos v. State Farm Fire & Cas. Ins. Co., 187 Wn.2d 669 (2017).

The Court of Appeals then addressed whether an individual insurance adjuster may be liable for bad faith and for violation of the CPA. The court looked to the Revised Code of Washington (“RCW”) 48.01.030, which serves as the basis for the tort of bad faith. RCW 48.01.030 imposes a duty of good faith on “all persons” involved in insurance, including the insurer and its representatives, and a breach of such duty renders a person liable for the tort of bad faith. The term “person” is defined as “any individual, company, insurer, association, organization, reciprocal or interinsurance exchange, partnership, business trust, or corporation.” RCW 48.01.070.  Because the adjuster was engaged in the business of insurance and was acting as an Allstate representative, she had the duty to act in good faith under the plain language of the statute. As a result, the Court of Appeals held that the adjuster can be sued for bad faith.

With respect to the CPA claim, the court noted that the CPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. The Court of Appeals, Division One, previously ruled that under “settled law,” the “CPA does not contemplate suits against employees of insurers.” International Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 87 P.3d 774 (Wash. App. 2004). There, the court held that to be liable under the CPA, there must be a contractual relationship between the parties and because there is no such relationship between an employee of the insurer and the insured, the employee cannot be liable for a CPA violation. The court in Keodalah, however, rejected the adjuster’s reliance on International Ultimate, holding that the prior decision was without any supporting authority, and it was inconsistent and irreconcilable with the Washington Supreme Court case of Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 208 P.3d 885 (2009) (Washington Supreme Court declined to add a sixth element to the Hangman Ridge elements that would require proof of a consumer transaction between the parties). It appears that the holding in International Ultimate may be losing ground, as at least two federal district court cases have questioned the validity of that case. Lease Crutcher Lewis WA, LLC v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2009 U.S. Dist. LEXIS 97899, *15 (W.D. Wash. Oct. 20, 2009), (statement at issue in International Ultimate “is unsupported by any citation or analysis); Zuniga v. Std. Guar. Ins. Co., 2017 U.S. Dist. LEXIS 79821, *5-6 (W.D. Wash. May 24, 2017) (pointing out at least two problems with the statement at issue in International Ultimate).

While the adjuster’s actions in Keodalah appear to have been extreme, presumably policyholders in Washington will rely on this case to sue an insurance company’s adjusters in their individual capacities for bad faith and CPA violations. The court’s holding may have far reaching consequences. For example, will insurers need to appoint separate counsel for their adjusters when the adjusters are personally named in litigation? How will this affect the practice of removing cases from state to federal court? To the extent an insured wants to destroy diversity jurisdiction for its out-of-state insurer, it may choose to name an in-state adjuster, which would limit the insurer to Washington State Court when litigating coverage issues. This is an extremely alarming development for insurers and their employee adjusters in Washington State, who should take this as a reminder to be vigilant in ensuring good faith claims handling and the aggressive defense of bad faith claims.

Court Enforces Automatic Additional Insured Provision’s Pre-Condition Requiring Underlying Contract to Be Fully Executed Pre-Loss

Many liability policies contain provisions, typically in endorsements, automatically bestowing additional insured status on third parties when called for in certain types of contracts. These endorsements usually require that such contracts be in writing and signed by both parties prior to the date of the event for which coverage is sought. In Selective Ins. Co. of Am. v. BSA, No. 15-0299, 2018 U.S. Dist. LEXIS 56178 (E.D. Pa. April 2, 2018), a Philadelphia federal judge recently enforced the signed written agreement requirement as an unambiguous condition precedent to coverage, denying additional insured status where the underlying contract had not been signed by the named insured.

At issue was a Blanket Additional Insured clause which provided coverage to any organization that the insured, Keystone College, agreed to add to the policy in a written contract, so long as the contract was signed by both the named insured and the additional insured before any loss. The Boy Scouts of America (“BSA”) sought coverage under this provision after a Keystone student was injured on campgrounds owned by BSA. The campground rental agreement required that Keystone add the BSA as an additional insured. Crucially, however, Keystone never signed it.

Rejecting the BSA’s argument that Keystone’s post-accident ratification of the contract sufficed to make BSA an additional insured, the Court held that Selective was entitled to insist upon true compliance with policy’s express requirement of “a written agreement signed by both parties.” The Court thus distinguished the legally-irrelevant issue of whether the policy holder and the BSA had entered a binding agreement among themselves from the distinct, and controlling, issue of whether the policy’s express conditions for automatic coverage had been satisfied. Because they were not, the court refused to find that the third-party agreement expanded the insurer’s coverage obligations under the policy.

The takeaway from this decision is that insurers are entitled to insist that unambiguous conditional language of policies be enforced as written. The relevant inquiry was not whether the parties to the incompletely-executed underlying contract considered themselves bound to it, but whether those conditions had been complied with. As is should be, the insurer was only bound by the terms it had agreed to in the policy, and the policyholder’s failure to comply with this unambiguous condition precedent precluded automatic additional insured status under the policy for its contractual counterparty.

New York High Court Reconfirms That Pure Pro Rata Allocation Remains the Rule in Continuous Trigger Situations, Rejecting Attempt to Shift Allocation to Insurers for Periods Where Insurance Was Commercially Unavailable

Rejecting policyholder arguments that losses during periods where pollution liability insurance was commercially unavailable should be allocated to insurers of other periods, the New York Court of Appeals recently confirmed that New York remains a pure pro rata/time on the risk allocation state. In Keyspan Gas East Corporation v. Munich Reinsurance America, Inc., the policyholder, Keyspan Gas East Corporation (Keyspan), sought coverage to clean up environmental contamination at a site that began in the 1890s and continued for decades. Century Indemnity Company (Century) issued eight excess insurance policies between 1953 and 1969, and the trial court found that environmental liability insurance was unavailable prior to 1925 and after 1970.

The Court of Appeals previously adopted the pro rata approach to allocating responsibility for coverage for progressive injury claims spanning across multiple policy periods in Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208 (2002). Keyspan, however, argued that an equitable exception should be created for periods where insurance was commercially unavailable, and that liability for such periods should be allocated to insurers of other time periods. Rejecting this so-called “unavailability rule,” the Court found Keyspan’s arguments irreconcilable with the unambiguous language of Century’s policies, which like nearly all general liability policies, limits the insurer’s liability to property damage that occurs “during the policy period.” Losses sustained outside that period – such as years insurance was unavailable – are not within the scope of coverage.

Importantly, the Court took pains to emphasize that its recent decision in Matter of Viking Pump, Inc., 27 NY3d 244 (2016), that “all sums” allocation is appropriately applied to policies containing “anti-stacking” or “noncumulation” clauses that collapse coverage across multiple policy periods into a single period, did not presage a retreat from the Court’s prior adoption of pro rata allocation. Instead, the Court emphasized that its fundamental rule is that policies must be enforced according to their contractual language and that so-called “public policy” or “equity” concerns cannot serve to permit New York’s Courts to rewrite the bargain between an insurer and its insured.

The Court’s holding is a significant win for insurers in New York involved in “long-tail” insurance claims, particularly those stretching across several decades. The holding reaffirms strict compliance with the pro-rata approach to allocation, and holds insurer’s liable only for their time on the risk. Emphasizing the importance of permitting insurers to select for themselves the risks they choose to underwrite, the Court rejected Keyspan’s bid to rewrite the policy for “public policy” reasons, and refused to find coverage that was never underwritten and never contemplated by the parties. While this case involved environmental contamination, it also can be expected to have important repercussions for long-tail personal injury claims such as asbestos, where coverage for asbestos claims has been commercially unavailable to most commercial insureds since the mid-1980s.

Why Insurers and Their Attorneys Need to Pay Close Attention to Their Discovery Burden in Washington

As previously reported in this blog, Washington case law generally affords insureds a broad right to the discovery of claim file materials, including information that should be protected from disclosure by attorney/client privilege or the work product doctrine. Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P. 3d 239 (2013). The discovery pitfalls created by Cedell were on full display in a recent Western District of Washington decision that granted an insured’s motion to compel production of work product and attorney/client communications from an insurer’s claims file. Westridge Townhomes Owners Ass’n v. Great American Assur. Co., 2018 U.S. Dist. LEXIS 27960 (W.D. Wash. February 21, 2018)

The background facts are somewhat unclear, but it appears that the insured in this case made a claim for coverage under two insurance policies and there was an allegedly inadequate response from the insurers. The insured sued its insurers for coverage in 2016 before the insurers issued a declination of coverage letter. The two insurers retained the same attorney to represent them, and that attorney subsequently wrote a declination letter on behalf of the insurers, which was sent to the insured on April 12, 2017. The insured ultimately sought production of the entire claim file, which had not been split between the claim investigation and the coverage litigation. The insurers argued, among other things, that the insured was not entitled to anything after the litigation commenced in 2016 on work product grounds, and certainly was not entitled to communications with their attorney.

In ruling on the insured’s motion to compel, the Court concluded that the insurers failed to satisfy their burden of showing that communications with their attorney up to the date of the declination letter were protected, even though the parties were in litigation, because the Court was convinced that their attorney acted as an investigator and evaluator of the claim while the litigation was proceeding. The Court stated that “nothing in Cedell limits the discoverability presumption to pre-litigation evidence…” Furthermore, the insurers failed to show that their communications with their attorney took place because of litigation as opposed to being created in the normal scope of their insurance business. The Court ordered production of all attorney/client communication and work product up to the date the declination letter was sent, ruling that “documents containing [the insurers’ attorney’s] mental impressions regarding the insurers’ quasi-fiduciary duties to the insured, including his liability assessments and coverage advice, are subject to production.”

The Court did not do an in camera review of the documents at issue, as requested by the insurers and authorized by Cedell, writing that the insurers had failed to meet their threshold burden to justify such a review. In this regard, the Court was critical of the insurers’ privilege logs and conclusory explanations in the briefing of why the documents should be protected. “The Court finds that it is insufficient for the parties to rely on a request for in camera review to avoid their responsibility to explain why such documents should be withheld.”

Additionally, one of the insurers moved that if it had to produce such information, the plaintiff should be compelled to produce the same. The Court denied that motion, noting that an insured does not owe a quasi-fiduciary duty to its insurer and that Cedell is not a two-way street.

This ruling should serve as an important reminder to insurers and their counsel about the dangers of discovery in Washington following Cedell. For insurers to chip away at the scope of Cedell, they must take their discovery obligations seriously and lodge specific, well-supported objections in order to protect certain categories of privileged information. Insurers must not only be aware of Cedell, but also be aware that they will often have the burden of convincing the Court that an attorney/client communication or work product document should be protected from discovery. Specifically, insurers should be prepared to argue that the privileged information was not related to the evaluation of the claim, but rather for the specific purpose of rendering legal advice.

What is certainly clear is that an insurer cannot make a blanket assertion that documents are protected and expect the Court to review the documents in camera, which appears to have happened in this case. An insurer should instead be prepared to address each document individually and explain why it is not related to the evaluation of the insured’s claim. Finally, when a claim has been pending and litigation is commenced, the file should always be split so that a new litigation file is created and claim evaluation materials are kept separate from litigation materials.

Insurance Coverage for Wrongful Incarceration Claims in Ohio

Over the past 18 months, we have examined numerous states’ approaches to insurance coverage for underlying claims of wrongful incarceration and malicious prosecution. See here, here, here and here.

Last summer, the Sixth Circuit Court of Appeals, interpreting Ohio law, weighed in on this issue. Selective Ins. Co. v. RLI Ins. Co., 2017 U.S. App. LEXIS 16327 (6th Cir. Aug. 24, 2017). The Sixth Circuit ruled that the district court erred in finding an excess insurer liable for a settlement of an underlying malicious prosecution claim arising out of a claimant’s wrongful conviction. The court concluded that coverage was not triggered because the claim did not occur until several months after the policy period expired, when police withheld new exculpatory evidence from the wrongfully convicted claimant and there was no longer probable cause for the claimant’s arrest and prosecution.

In Selective, “Insurer A” issued an excess policy to the City of Barberton (“City”) from June 29, 1997 to June 29, 1998, and “Insurer B” issued an excess policy to the City from June 29, 1998 to June 29, 1999. The underlying claimant, who was exonerated of rape and murder based on DNA evidence after spending several years in jail, sued the City and its police officers, alleging violations of state law and his federal constitutional rights. All claims against the City were dismissed. The surviving claims against the individual officers included a § 1983 claim for a violation of due process based on the officers’ failure to disclose exculpatory evidence, and state law claims of malicious prosecution and loss of consortium. Specifically, the failure to disclose exculpatory evidence, i.e., the Brady violation, involved an inter-departmental memorandum that a police officer drafted identifying a suspect in two other aggravated robberies as the likely suspect in the claimant’s rape and murder case. The civil case settled for $5.25 million, to which Insurer B contributed $3.25 million. Insurer A denied coverage, claiming that the malicious prosecution of the claimant did not “occur” during its policy period.

As part of the settlement, Insurer B took an assignment of rights from the insured and filed suit against Insurer A for a declaration of coverage under Insurer A’s policy. Insurer B argued on summary judgment that the malicious prosecution of the claimant “occurred” when the charges were filed against the claimant on June 11, 1998. As a result, coverage was triggered under Insurer A’s policy, whose policy period ended on June 29, 1998. Insurer A also moved for summary judgment, arguing that the tort of malicious prosecution occurred at the time of the Brady violation, which occurred in January 1999, six months after its policy expired.

The district court disagreed with Insurer A, stating that although the January 1999 concealment of exculpatory evidence was enough on its own for the claimant’s malicious prosecution claim, there was also evidence of wrongdoing by the police officers during the earlier policy period, such as the dismissal of alibi witnesses and a DNA mismatch. Therefore, the claimant may have had a viable malicious prosecution claim even prior to the alleged Brady violation, during the first policy period. The district court then relied on what it called the “majority rule” from other jurisdictions as to trigger of coverage for malicious prosecution claims, holding that coverage for such claims is triggered at the time that the underlying charges are filed. Because the claimant was first arrested during the first policy period, the court ruled that Insurer A owed coverage and had to reimburse Insurer B.

On appeal to the Sixth Circuit, Insurer A again argued that it was not liable for the excess liability claim because no tort occurred during the policy. The Sixth Circuit agreed, concluding that the district court erred in finding Insurer A liable for the settlement. According to the court, because there was probable cause to prosecute and detain the claimant until exculpatory evidence came into existence, the officers’ actions before the exculpatory evidence came into existence could not have caused a covered loss under the RLI policy. The court explained that under Ohio law, malicious prosecution requires the instituting or continuing of prosecution without probable cause. In Ohio, a claimant can recover for a prosecution that was not malicious at its inception, but became malicious later, when it continued without probable cause. The key issue is whether there was probable cause and when such probable cause disappeared. The court determined that in the underlying matter, the City and police officers had probable cause until the alleged Brady violation, such that the malicious prosecution and the deprivation of due process could only have occurred in January 1999, after expiration of Insurer A’s policy period. Therefore, the court concluded that under the plain language of the policy, the police officers’ liability to claimant was not covered under Insurer A’s policy.

The Sixth Circuit distinguished the district court’s “majority rule” based upon the policy language at issue in Insurer A’s policy and because none of the cases relied upon dealt with a situation like claimant’s case, “where the injury—i.e., the filing of charges—occurred before any tortious activity, and therefore could not have been caused by the tortious activity.”

This case demonstrates the importance of carefully analyzing the specific elements of a malicious prosecution claim in a particular jurisdiction, as well as the specific policy language at issue. Such careful analysis translates to a predictable conclusion in trigger of coverage for wrongful incarceration cases.

The next installment will review the law in Mississippi. In the meantime, if there are any questions about other jurisdictions or jurisdictions already discussed, please contact us ( or and we can address your questions directly.

New York’s Highest Court Expands the Phrase “Issued or Delivered” Under N.Y. Ins. Law § 3420(a)(2)

In a broad-reaching decision issued late last month, New York’s highest court, the New York Court of Appeals, clarified that the phrase “issued or delivered” in New York Insurance Law Section 3420 applies not only to policies issued by New York insurers or to New York insureds, but also to any policies insuring risks in the state.

Following a fatal automobile accident involving his wife, the plaintiff, Michael Carlson – individually, as the administrator of his wife’s estate, and as an assignee of the underlying individual tortfeasor who was a driver for an express shipping company – brought suit against the shipping company and it’s insurers pursuant to New York Insurance Law § 3420(a)(2) and (b) to collect on multiple insurance policies. Section 3420(a)(2) provides, in relevant part, that liability insurance “issued or delivered in this state” must contain certain provisions “that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors,” including the right of a direct action. Subsection (b) provides, subject to certain limitations that such actions may be brought by personal representatives of a judgment creditor and assignees of judgments obtained against an insured.

Because a plaintiff must establish that the policy sued upon was “issued or delivered” in New York in order to recover under the law, one insurer argued that the statute failed to apply where its policy was issued in New Jersey and delivered in Washington and then Florida. The court disagreed, stating that its prior decision in Preserver Insurance Company v. Ryba, 10 N.Y.3d 635 (2008) resolved the question in deciding that Section 3420 applies to policies that cover insureds and risks located in New York.

In Preserver the Court concluded that Section 3420(d) required insurers to provide written notice when disclaiming coverage under policies “issued for delivery” in New York. Preserver held that “issued for delivery” referred to the location of the insured risk, and not where the policy document itself was handed over or mailed to the insured. Applying this ruling to all subparts of Section 3420, the New York Court of Appeals thus held in its recent decision that a plaintiff can collect against an insurer if its insured has a “substantial business presence” in New York that “creates risks in New York,” and such an insurer must adhere to the requirements of New York Insurance Law § 3420.

Moreover, Carlson noted that the original legislative intent of Section 3420 was to protect tort victims in New York State. Further amendments to the statute in 2008 expanded the law’s reach. Those amendments also altered the “issued for delivery” language in Section 3420(d) to match the “issued or delivered” language elsewhere in the statute, but there is no indication that the legislature’s minor change to Section 3420(d) was intended to overturn the holding in Preserver. Carlson ruled that interpreting “issued or delivered in this state” narrowly, to apply only to policies issued by an insurer located in New York or by an insurer who mails a policy to a New York address, would undermine the legislative intent of the statute. The Court noted, however, that its interpretation of “issued or delivered” applies only to New York Insurance Law § 3420 and does not apply to other statutes.

In sum, Carlson held that the plaintiff was able to maintain his cause of action under New Yok Insurance Law § 3420 even though the insurer issued the policy in New Jersey and delivered it in Washington and Florida. The insured at issue in Carlson had a substantial business presence and created risks in New York, and therefore the insurer was subject to New York Insurance Law § 3420. The phrase “issued or delivered” in New York will continue to cover both insureds and risks located in the state.

Insurers in all jurisdictions should take note of this decision. As the dissent in Carlson observes, the majority’s ruling as to the meaning of “issued or delivered” in Section 3420(a) “enacts sweeping change across the Insurance Law, generating substantial implications, both known and unknown.” An insurer located outside of New York issuing a policy outside of New York may now be subject to New York law, whether or not a policy is issued in New York or to a New York-based insured.

A link to the decision (Carlson v. American Int’l Group, Inc., 2017 N.Y. LEXIS 3280, 2017 N.Y. Slip Op. 08163 (N.Y. Nov. 20, 2017)) is available on the New York State website: