Written by David O’Neill, JD, Director of Investigations, PolicyFind
As an insurance archeologist, the location and retrieval of historical insurance policies has long been my business. Policyholders with long-tail claims often rely on liability insurance policies issued decades ago to provide coverage. These policies provide the evidence of insurance necessary to tender environmental property damage claims, toxic tort claims, as well as sexual battery claims to insurance carriers. Where an actual insurance policy cannot be found, an endorsement, a premium notice, or broker correspondence may serve as the document to be authenticated and form the basis of the policyholder’s claim for coverage. These documents dating to the mid and late 20th century are typically found boxed in off-site storage facilities, in insurance broker archives, in government-retained microfilm collections, etc.
Policyholder’s counsel proffering decades-old documentary evidence in declaratory judgment actions to prove the existence, terms and conditions of liability insurance coverage have long done so with confidence, knowing that these types of documents were “self-authenticating.” Federal Rule of Evidence 901(b)(8) allows that such an “Ancient Document” can be relied upon as authentic if (a) it is “in a condition that creates no suspicion about its authenticity”; (b) was found “in a place where, if authentic, it would likely be” and (c) “is at least 20 years old when offered.” Federal Rule 803(16) provides a hearsay exception for these Ancient Documents. Therefore, news this summer that the United States Judicial Conference’s Committee on Rules of Practice and Procedure had issued a report proposing changes to the Federal Rules of Evidence that would repeal the hearsay exception for Ancient Documents is being met with some concern by policyholder’s counsel.