Author: ehemingway

The Power of Specimen Policies: A Primer for Policyholders

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BY: SAMANTHA DEELORRIETA

School districts, dry cleaners, and religious institutions may seem like an unlikely trio, but these entities have something significant in common: they have all derived immense value from PolicyFind’s extensive Specimen Policy Library.

Every day across the nation, lawsuits are filed by those seeking compensation for alleged bodily injury and property damage caused by incidents, accidents, or exposure to toxic substances that occurred decades ago.

While it is becoming common knowledge that historic liability insurance policies are the keys to protecting your organization or business from expending hundreds of thousands of dollars answering these demands, a lesser-discussed way to unlock the power of those CGL policies is through the use of ‘specimen policies’.

WHAT IS A ‘SPECIMEN POLICY’?

Traditionally, these documents are also often called “sample policies.” A specimen policy refers to an insurance policy lacking specific identifying information. While the insureds’ specific information is largely absent from these policies, the policy retains original language included within standard forms, within which insurance companies set forth the terms and conditions of coverage and exclusions of the insurance coverage provided.

PolicyFind’s extensive specimen policy library contains thousands of general liability and excess liability insurance policies. This library serves as a valuable resource for verifying coverage details and reconstructing potentially missing portions of policies.

WHAT IS A STANDARD FORM?

According to the International Risk Management Institute (‘IRMI’) “a standard form or policy describes an insurance policy form that is designed to be used by many different insurers and has exactly the same provisions regardless of the insurer issuing the policy.”

Before the introduction of standard insurance forms in the early 1970s, each individual carrier wrote the forms used within their insurance policies. This means that the terms and conditions of a 1965 general liability policy provided by Insurance Company “A” may differ from the terms and conditions of a 1965 general liability policy provided by Insurance Company “B”. Because PolicyFind’s specimen policy library holds policies dating to the 1940s, it holds the forms issued by both Insurance Company “A” and “B.”

Beginning in the 1970s, insurance carriers began using standard insurance policy forms. The bulk of these forms were created by the Insurance Services Office, or ISO, and were inserted within insurance policies by many insurance carriers. This means a policy written by Insurance Company “A” with standard forms could be used to prove coverage under a lost insurance policy underwritten by Insurance Company “B” – if both policies included the same standard forms.

MANUSCRIPT POLICIES

An important exception is that some organizations obtained what is known as a ‘manuscript policy.’ IRMI defines a manuscript policy as “a custom-designed insurance policy form for a specific insured. It is a contract that provides coverage against risks like property damage, accidental bodily injuries, or other losses, and has unique terms and conditions that are negotiated between the insurer and the insured.” In short, the language, terms and conditions contained within manuscript policies cannot be re-created using standard form specimen policies.

HOW IS A SPECIMEN POLICY USED?

There are many practical applications in which an experienced Insurance Archaeologist can put specimen policies to beneficial use.

Specimen policies are primarily used to recreate lost or mislaid insurance policies. In this way, a specimen policy can bolster scant amounts of insurance evidence found during an investigation, providing previously missing forms, endorsements, and/or terms and conditions contained in the policy.

Coverage patterns often appear when Insurance Archaeology investigations are conducted for the same type of client located within a particular part of the country. Time and again, researchers will identify and make special note of carriers that dominated certain geographic areas and/or industries. A skilled practitioner can use the investigative insurance findings in tandem with specimen policies to open meaningful and productive conversations with insurance companies.

Often, extraordinarily little information is known about an organization’s historical coverage. However, having just a policy number can be incredibly helpful when plugged into a meticulously kept library of specimen policies. There may only be a stray policy number written on a historical record, a rogue canceled check, or just a simple entry in an old ledger. Carrier information can often be figured out by cross-referencing the policy number with those kept within a specimen policy library.

Like policy number information, specimen policies can prove invaluable, and matches can be made when any of the following information is brought to light:

  1. Industry of the insured
  2. Policy type
  3. Known Policy forms
  4. Policy period.

Once this information is known, the skilled Insurance Archaeologist can begin work to determine the language within key portions of the missing policy. These re-created policies are then made available for generic use to prove which standard policy forms were in place during a given policy period.

GROUP PROGRAM COVERAGE IDENTIFICATION

Another value-add of PolicyFind’s Specimen Policy library is being able to identify associations with which our clients may have historically been members.

Historically, one of the draws of some associations or programs is that they offered their members insurance coverage at reduced rates.

PolicyFind’s expansive library is built to identify insurance carriers through these group insurance programs, which became common and popular across many industries in the 1970s and 1980s. Once an organization is identified as having been a part of one of the group programs, the documents within the specimen policy library can provide carrier information and, sometimes, policy numbers.

In addition to group insurance programs, some school districts, municipalities, and religious organizations have created their own shared risk insurance groups.

PolicyFind’s specimen policy library holds insurance policy information for multitudes of these group insurance programs and shared-risk insurance groups. We have proven success finding liability coverage for organizations and institutions based on their historical membership in one of these groups.

CONTACT POLICYFIND

PolicyFind’s expertise is two-fold. Its experts first find evidence of historical coverage to answer long-tail claims through Insurance Archaeology, then, through use of the specimen policy library, they can reconstruct these old policies. It’s a powerful ‘one-two punch.’

The best way to accurately assess whether PolicyFind’s Specimen Policy Library and Insurance Archaeology services are the right options for you, is to speak with us. Through a free consultation, we will learn more about your specific situation and advise potential paths forward to cost recovery. To get the process started, contact PolicyFind today.

Insurance Archaeology: From Niche to Necessity

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BY: KRISTEN DRAKE

Splashed across headlines throughout the country, is where to find situations in which Insurance Archaeology can provide potential pools of funds that may not otherwise exist. From the Biden-Harris Administration finalizing the EPA action designating PFOA and PFAS as hazardous substances under CERCLA (in effect on July 8, 2024) to billion-dollar talc cancer lawsuit settlements to million-dollar sexual abuse lawsuit settlements involving religious and educational institutions. Each of these present-day scenarios highlights the need to locate historical insurance policies for various claims, and the evolving nature of litigation and legislation.

Insurance Archaeology, once considered a niche industry, is now a mainstream construct and an integral part of legal strategies on both sides of the aisle. As societal awareness and legal frameworks evolve, it’s likely that the demand for such services will only continue to increase.

WHAT IS ‘INSURANCE ARCHAEOLOGY’?

Merriam-Webster would approve, as we begin with definitions. A practitioner for nearly a decade, I often define Insurance Archaeology as “the process of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed policies.”

If a more contemporary definition is preferred, ChatGPT defines the practice this way:

“Insurance archaeology refers to the process of researching and reconstructing historical insurance policies and coverage details for various purposes. This could include locating old insurance policies to determine liability, coverage, and obligations for environmental cleanup, asbestos claims, product liability, or other legal matters. It often involves delving into archives, records, and historical documents to gather information about past insurance arrangements.”

In short, Insurance Archaeology can be likened to genealogy – with an insurance bent. While PolicyFind’s investigators are proven experts at spotting even a modicum of potentially valuable information within old files and historical documents, those documents, oftentimes, are non-existent.

Insurance Archaeology is frequently suggested by an attorney, insurance broker, or environmental consultant, when all efforts to reconstruct historical insurance programs have failed. Searches that don’t involve Insurance Archaeologists typically arrive at dead-ends because 50- or 60-year-old business records were purged long ago.

WHAT DOES INSURANCE ARCHAEOLOGY ENTAIL?

Broadly, once armed with pertinent details about the historical operations of a business entity or institution, an Insurance Archaeologist will define and deploy a detailed and linear investigative strategy. The investigation typically takes 60-90 days to complete and may include boots on the ground research, interviews with stakeholders and key personnel, and research within public and private repositories. The aim in each investigation is the same: to locate potentially applicable policies by identifying and conducting a pain-staking review of priority sources of information. Generally, insurance archaeology strategies vary, as do the claims facing businesses, non-profits, and educational and religious institutions.

COMPONENTS OF THE INSURANCE ARCHAEOLOGY INVESTIGATIONS

While each Insurance Archaeology investigation is unique, there are some common strategies employed within the investigations. These components can be employed either within an insurance archaeology investigation, or employed as standalone options.

  • Use of a ‘Specimen Policy Library’. Specimen forms and policies provide additional information needed to determine the terms, conditions, and limits of coverage for policies that are identified by evidence of coverage, such as cancelled checks, ledger entries or certificates of insurance that provide policy numbers. PolicyFind uses a myriad of proprietary sources to find actual policies or significant evidence of coverage. Our extensive specimen policy library contains hundreds of general liability and excess liability insurance policies to ground-truth evidence of coverage and help reconstruct missing portions of policies.
  • Insurance Policy Audits. A valuable tool for those who have previously enlisted an Insurance Archaeology firm or for those who have received regulatory closure for prior environmental issues, but now may face additional PFAS-related concerns. This component is also vital when new claims or litigation has been filed alleging wrongdoing during a different policy period than when an Insurance Archaeologist previously investigated. An audit reviews and evaluates which policies may respond and which policy years are missing.
  • Corporate History Reconstruction. This is a critical component for companies with a corporate history rife with mergers and acquisitions. Through this process, insurance archaeologists perform a full historical insurance audit to identify with whom historical liability lies. This practice also provides benefit to corporations acquiring ownership of present-day companies that risk acquiring potential liabilities with roots in past practices of the companies they acquire.
  • PRP Research and Identification. Potentially Responsible Party (PRP) research comes into play when companies are unfairly singled out for environmental expenditures. More specifically, when regulatory agencies discover soil and groundwater contamination, the most obvious legally liable parties (responsible parties) are commonly the first to receive a demand. The most obvious party may be only one in a history of past owners and operators, waste transporters or generators that may have contributed to the environmental impairment. PRP research levels the playing field to involve all parties historically associated with a contaminated site.

The best way to accurately assess whether insurance archaeology is the right option for you is to speak with an insurance archaeologist who can learn more about your situation and advise you accordingly. PolicyFind’s experienced insurance archaeologists offer a confidential consultation to determine potential paths forward to cost recovery. Contact PolicyFind

Worried about TCE and PCE Contamination? Think Insurance Archaeology First.

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Many drycleaners engaging an Insurance Archaeologist fall into one of three categories: 1. They worry their property may be contaminated due to operations taking place prior to their (now green) operation; 2. They know there is likely contamination onsite, but they’re not ready to deal with it because it’s expensive; or 3. They’re not being asked to investigate it, so it’s being ignored.

If you fall into one of those categories, you’re in the right place.

Let’s start at the beginning and hit the high points.

The official definition of Insurance Archaeology is: “The practice of locating and retrieving the proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies.” We often liken it to ‘genealogy with an insurance bent’.

PolicyFind was conceived to work for dry cleaners. Over twenty years ago, our CEO, Steve Henshaw, assembled a team of investigators, geologists, and engineers to work with and for drycleaners, with a keen focus on marrying two concepts: cleaning up contaminated properties and finding funding to ‘turn liabilities into assets’.

Insurance Archaeology can be (and maybe should be) performed before there’s a known issue. We believe in two basic tenets: helping our clients protect their investment and leaving the environment better than we found it. The fact is, being a business or property owner is, at its core, an investment. It may be your savings plan, or it might be your children’s livelihood one day. If drycleaning operations existed at your property dating back decades, you owe it to your future self to protect your investment by investigating all funding sources available to you if you believe harmful chemicals may have been used in prior operations.

Steve Henshaw was one of the first to understand the immense value of historical general liability insurance policies as it relates to environmental matters. When leveraged, these historical insurance policies are assets that can be worth millions of dollars in legal defense, cost-sharing of defense, and settlements. More importantly, Henshaw understood these occurrence-based policies were worth more than their weight in gold when uncovered and applied properly and that most business owners would have purchased these policies to respond to everyday incidents – like slip and fall accidents.

The types of policies PolicyFind hunts for, most frequently, are those occurrence-based general liability and umbrella/excess policies. More specifically, in most states throughout the country, PolicyFind is tasked with locating policies issued prior to the 1985/1986 time period because that is when policies started to incorporate the Absolute Pollution Exclusion.

How is it possible new claims can still be made against old policies? First, you should know that these policies never expire. ‘Occurrence-based’ policies—are those policies that cover losses if the damage happened during the time the policy was in effect, regardless of when a claim is filed.

PolicyFind works with drycleaners across the nation, day in and day out, to locate, quantify, and bring to bear these decades-old policies to pay for clean-up and remediation. Because no vault or database exists in which old insurance information is held, we conduct interviews, put boots on the ground to physically search files, and develop and follow ‘leads’ to reconstruct insurance coverage portfolios. This, along with our knowledge of state-by-state case law relating to ‘long-tail’ environmental matters and our knowledge of how the insurance industry operates, is what gives our policyholder clients access to more funding options when facing large and expensive environmental clean-ups.

The best way to accurately assess whether insurance archaeology is the right option for you is to speak with an insurance archaeologist who can learn more about your situation and advise you accordingly.

PolicyFind’s experienced insurance archaeologists offer our future clients a confidential consultation to determine potential paths forward to cost recovery. Contact PolicyFind.

Arrowood Indemnity Heads into Liquidation

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On November 8, 2023, Arrowpoint Capital announced that Arrowood Indemnity Company has been placed into, and has consented to, liquidation by order of the Chancery Court of Delaware.

Arrowpoint Capital acquired the U.S. insurance operations of Royal & Sun Alliance Insurance Group plc in 2007. Arrowood Indemnity is formerly known as Royal Globe Insurance Company and/or Royal Indemnity Company.

Dennis Cahill, President & CEO, said the liquidation was due, in part, to “the enactment of child victim act statutes and the continued emergence and re-emergence of claims related to legacy insurance policies issued decades ago continue to adversely impact the company’s financial condition.” Read the company’s full statement here.

Like Bedivere Insurance Company’s liquidation in 2021, Arrowood Indemnity’s liquidation action has a potentially far-reaching impact in the world of long-tail, toxic tort, and latent injury claims, which are typically covered by general liability policies formerly written by companies like Arrowood Indemnity.

As a result of this liquidation order, all claims need to be filed with the Receiver on or before January 15, 2025, or “be barred forever from recovering on claims against Arrowood, or its estate.” The Delaware Department of Insurance Commissioner, Trinidad Navarro, serves as the Receiver.

LEARN MORE
For more information about the liquidation action, the Complaint for Entry of a Liquidation and Injunction Order with Bar Date can be viewed in full here.

THERE IS STILL TIME

If you’re facing a long-tail liability, toxic tort, or latent injury claim and any of the carrier names listed in this article sound familiar, please contact PolicyFind. There is still time for our team to help you locate and present your evidence of coverage and to submit Proof of Claim, ahead of the Claims Bar Date set for a little more than a year from now.

Insurance Archaeology and Maryland’s Child Victims Act of 2023

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BY: KRISTEN DRAKE

On October 1, 2023, Maryland’s Child Victims Act took effect. Here, PolicyFind explains what this new law means for survivors of childhood sexual abuse, defendant institutions, and what role Insurance Archaeology can (or should) play.

Over the course of the past several years, PolicyFind has closely monitored and reported on the wave of ‘reviver statutes’ sweeping the nation. The ‘reviver statute’ or ‘look-back window’ is legislation that temporarily lifts the statute of limitations for child sexual abuse claims to be filed in civil court. These reviver statutes have been enacted for finite terms in more than a dozen states, including New York, New Jersey, California, and Arkansas.

To be clear, Maryland’s Child Victims Act is not a look-back window. This law eliminates the statute of limitations permanently; and Maryland is not alone in enacting this type of legislation, Vermont and Maine have similarly removed their respective statutes of limitations for civil matters. These measures allow adult survivors of childhood sexual abuse to file a civil lawsuit, regardless of when the abuse occurred.

As adult survivors file civil lawsuits, they often name not only the perpetrator but also the associated educational or religious institutions as defendants. According to marylandmatters.org, “Maryland Child Victims Act caps liability for public entities at $890,000 and increases the liability limit to $1.5 million for claims against private institutions for non-economic damages such as pain and suffering.” So, once a judgment is derived, where does the money come from?

With public schools and churches already in need of monetary support, without having new civil lawsuits against them, how will these, and other struggling non-profit, youth-based organizations, handle meeting these obligations? One option is insurance. This insurance is likely not the defendant organization’s current coverage, rather historical occurrence-based general liability coverage – the kind that was in place when the alleged wrongdoing occurred. This type of insurance is the same kind that would have responded to slip and fall accidents. Because of its wide range of coverage, it left a footprint. The tracing of that footprint is also known as Insurance Archaeology.

Another option for defendant institutions are those actions outlined within the Archdiocese of Baltimore’s press release, issued days before the new law in Maryland took effect. That statement outlined the organization’s pre-emptive move of filing for Chapter 11 reorganization.

Over the past several years, PolicyFind has penned many articles extolling the virtues of defendant institutions that have engaged an Insurance Archaeologist to locate and bring to bear evidence of these valuable historical occurrence-based policies. That’s because, day in and day out, PolicyFind works directly with churches, schools, non-profits, and youth-based organizations, throughout the country, to identify and reconstruct historical liability insurance programs to respond to these types of complaints.

It has often been said, and it’s true, these oft-discarded old policies are worth more than their weight in gold. PolicyFind works with defendant institutions to locate evidence of these historical insurance policies because, once identified, they provide funding to answer these complaints spanning back four, five, or six decades.

Insurance Archaeology is the practice of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies. Under current and future reviver statutes and emerging new laws across the country, historical CGL policies issued to businesses, schools, churches, and other organizations, are the first line of assets to be explored to pay for claims against them.

Contact PolicyFind today to learn more about how to discover and reconstruct your organization’s historical liability insurance portfolio.

Child Sexual Abuse and Statute of Limitations Reform: An Ever-Evolving Landscape

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BY: KRISTEN DRAKE

Over the past several years, many school districts, youth-based organizations, religious institutions, and municipalities have enlisted PolicyFind’s Insurance Archaeologists to locate their lost liability policies. This sharp increase in the demand for insurance archaeology correlates with individual states passing legislation that expands the statute of limitations for filing civil lawsuits related to child sexual abuse claims. 

In recent years, more than a dozen states nationwide have opened reviver statute ‘windows’ – either for a finite term (1-2 years, generally) or permanently. These windows allow survivors of sexual abuse to file previously time-barred civil lawsuits against perpetrators and associated organizations decades after the alleged acts occurred.

PolicyFind has conducted Insurance Archaeology for defendant organizations throughout the country and has been engaged most frequently in (but not limited to) California, New York, and New Jersey. However, the landscape of reviver statutes seems ever-evolving.

MARYLAND’S CHILD VICTIMS ACT OF 2023

Most recently, in April, Maryland’s governor signed the Child Victims Act of 2023, eliminating the statute of limitations and allowing adult survivors of child sexual abuse to file a civil lawsuit, regardless of when the abuse happened. Maryland’s lookback window opens on October 1, 2023, and, similarly to Vermont and Maine, it will be open permanently.  

CALIFORNIA’S AB 452

In California, just over a month after the Child Victims Act reviver statute ended in December of 2022, lawmakers introduced AB 452, the “Justice for Survivors Act”. While the Child Victims Act window was open for a 3-year period, if passed, AB 452 would eliminate the civil statute of limitations for child sexual abuse. The prior version would have opened a permanent lookback window. AB 452 passed the Assembly on May 25, 2023, and is now in the Senate for review.

ARKANSAS’ SB 676

In February, SB 676, the “Justice for Vulnerable Victims of Sexual Abuse Act” became law in Arkansas. The law opened a two-year window allowing survivors aged 55 and younger to file civil lawsuits against alleged perpetrators or responsible organizations. This window closes on January 31, 2024.

These matters are sensitive and undoubtedly full of complexities for defendant institutions. When a school district, a religious institution, or a non-profit receives a civil complaint of this nature, they will likely begin to assemble a team to assist them. The team will probably be anchored by the attorney representing the defendant’s institution. An Insurance Archaeologist needs to have a place of prominence on the team, too. Insurance Archeologists are the experts at bringing to light those often long buried or lost general liability insurance policies issued to the school or non-profit. These old General Liability policies can respond today and provide the funds needed to answer revived claims of abuse – even if the allegations span back to the 1960s. While these old policies can provide monetary relief, the policyholder must first prove the policy existed. This can be problematic, especially when the policies have long ago been discarded. 

Insurance Archeology is the practice of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies. Under current and future reviver statutes and emerging new laws across the country, historical CGL policies issued to businesses, schools, churches, and other organizations, are the first line of assets to be explored to pay for claims against them.

Contact PolicyFind today to learn more about how to discover and reconstruct your organization’s historical liability insurance portfolio.

PFAS, Imminent National Standards, and the Value of Locating Old CGL Policies

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BY: KRISTEN DRAKE

Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are part of a very broad chemical group that have found their way into commercial and industrial use due to their unique chemical properties that repel oil and water and resist temperature, chemicals, and fire. This means PFAS are everywhere. As a contaminant resistant to degradation and requiring substantial remediation, PFAS are currently the subject of increased scrutiny by environmental regulators, private party plaintiffs, manufacturers, and the insurance industry. 

On March 14, 2023, it was announced that the Biden-Harris Administration will be proposing the first-ever national standards for six (6) per- and polyfluoroalkyl substances (PFAS) or “forever chemicals”. In addition, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance (OECA) held its first of two public listening sessions to obtain general comments about their proposed plans for enforcement of PFAS under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the financial obligations for responsible parties of PFAS contamination to further their development of a CERCLA PFAS enforcement discretion policy. Both actions build on President Biden’s PFAS pollution action plan and the EPA’s PFAS Strategic Roadmap, which were started over two years ago with the objectives of controlling and addressing PFAS pollution and holding PFAS polluters accountable to safeguarding public health and advancing environmental justice.

While progress is being made, additional questions arise on the future of PFAS regulation implementation and the potential financial obligations and risks to municipalities and other sectors. For instance, we do not have a clear understanding of who will be held responsible for funding the cleanup of PFAS contamination via the aqueous film forming foam (AFFF), a.k.a. firefighting foam, releases at many airports and fire departments, since the EPA is proposing to exempt these entities.

HISTORICAL COMMERCIAL GENERAL LIABILITY INSURANCE SHOULD BE LOCATED AND TENDERED TO PAY FOR PFAS INVESTIGATION, CLEANUP, REMEDIATION, AND LEGAL DEFENSE

Those who used or interacted with PFAS during their business operations and/or property ownership can face a variety of exposures due to PFAS – including product liability, bodily injury, and environmental cleanup claims. Policyholders should be ready to find and use their commercial general liability (CGL) policies written prior to 1986 to pay for the investigation, remediation, and legal defense of PFAS.

There are three reasons older CGL policies can protect business and property owners against claims for property damage and bodily injury:

1. Older CGL policies typically apply to an “occurrence” rather than “claims-made basis”, which means the policies in place when there was property damage during the policy period should continue to apply, even if the liability does not appear until decades later. So, as it relates to PFAS that have allegedly been in the soil, groundwater, or otherwise since the 1960s, 1970s, or 1980s, CGL policies from those years can pay for environmental investigation, cleanup, and legal defense.

2. Older CGL policies, issued prior to 1986, did not include the absolute pollution exclusion. This means older CGL policies can cover long-tail claims (including PFAS), such as environmental, investigation, cleanup, and legal counsel fees. 

3. Applicable CGL insurance policies never expire. PFAS claims don’t change this fact.

If you feel that you or your business may gain liability from the formal regulation of PFAS chemicals as hazardous substances, contact PolicyFind as soon as possible to get your historical CGL portfolio in order.

PolicyFind is watching the development of insurance coverage related matters regarding PFAS very closely, not only for bodily injury claims but also for property damage claims related to the investigation and cleanup of subsurface contamination. Significant developments will be shared in future blog posts. For questions or more information, please contact us.

California Bill Aims to End Statute of Limitations for Child Sexual Abuse

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On February 6, just over a month after California’s Child Victims Act reviver statute ended, California Assembly member Dawn Addis and Senator Nancy Skinner introduced AB 452, the “Justice for Survivors Act”. 

While California’s Child Victims Act provided childhood survivors of sexual abuse a 3-year period to file civil lawsuits against their abusers and associated institutions, this ‘lookback window’ closed on December 31, 2022. 

Currently, people who were sexually abused as minors in California can file civil lawsuits until they are 40 years old. If passed, AB 452, which awaits referral to its first policy committee, would eliminate those time constraints.  

OLD GENERAL LIABILITY INSURANCE POLICIES CAN HELP
Whether states enact lookback windows, or when new legislation is passed that removes or reduces the statute of limitations for sexual abuse civil suits, organizations that are linked to alleged abuses can get caught in the crossfire between plaintiffs and alleged offenders. Occurrence-based Commercial General Liability (CGL) policies issued to these organizations during the policy periods in which the alleged abuse occurred can respond to these new claims – even if the alleged abuse happened several decades ago.

WHY SHOULD YOU CONSIDER INSURANCE ARCHEOLOGY?
Upon receiving notice that a lawsuit has been filed against them under a reviver statute, or under a new law, defendant organizations typically first contact their attorneys, who then suggest contact should be made with their current insurance agents and brokers to find insurance. 

However, because of standard document retention practices, these organizations quickly learn their current agent/broker has no information dating back decades. Often, policyholders will next contact insurance companies, expecting that their old coverage information is still stored within the insurance company’s ‘old files’. These requests are often fruitless, as the burden of proving the existence of historical liability coverage falls to the policyholder. Furthermore, the insurance company is not required to keep a policyholder’s information. It’s at this point that defendant organizations should consider Insurance Archeology.

Insurance Archeology is the practice of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies. PolicyFind’s expertise is finding and bringing to light old insurance coverage for our clients. Under current and future reviver statutes and emerging new laws across the country, historical CGL policies issued to businesses, schools, churches, and other organizations, are the first line of assets to be explored to pay for claims against them.

Contact PolicyFind today to learn more about how to discover and reconstruct your organization’s historical liability insurance portfolio.

New York Adult Survivors Act ‘Lookback Window’ Opens

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BY: KRISTEN DRAKE

On May 24, 2022, New York Governor, Kathy Hochul, signed the Adult Survivors Act (ASA) into law.  The ASA creates a one-year ‘Lookback Window’ which opened on November 24, 2022, to allow survivors who were adults (18 and older) at the time they were sexually abused and assaulted to sue their abusers – regardless of when the offenses occurred.

In 2019, the state of New York enacted the Child Victims Act (CVA) which opened a ‘Lookback Window’ to commence civil actions.  The CVA was extended another year due to the COVID-19 pandemic, and when the window closed in August of 2021, nearly 11,000 lawsuits had been filed. During the CVA lookback window, countless churches, schools, foster care agencies, and youth-based organizations were obliged to respond to the alleged abuses. An important differentiation between the CVA and the ASA, is the age of the survivor when the sexual abuse or assault occurred, although both fall under the broader category of reviver statutes. Prior to the ASA, reviver statutes focused primarily on abuses against children.  With this new law, it’s likely that different types of organizations will face allegations dating back decades, because the survivors were 18 and older when the sexual assault or abuses happened. This expansion may include accusations made regarding assaults at colleges, in the workplace, and/or health care facility abuses – to name a few.

DECADES-OLD OCCURRENCE-BASED GENERAL LIABILITY POLICIES CAN HELP
When states enact these lookback windows, removing or reducing the statute of limitations for sexual abuse civil suits, organizations that were proximal to alleged abuses can get caught in the crossfire between plaintiffs and alleged offenders. Occurrence-based Commercial General Liability (CGL) policies issued during the policy periods in which the alleged abuse occurred can respond to these new claims – even if the alleged abuse happened in the 1960s.

DEFENDANT ORGANIZATIONS SHOULD CONSIDER INSURANCE ARCHEOLOGY
As more organizations are compelled to identify and locate their decades-old liability policies to help pay damages, they are oftentimes disheartened to learn how difficult it can be. Since the time of interest in reviver statute claims is oftentimes at least 40 years ago, many records could be lost, destroyed by fire or flood, or purposely purged.

Upon receiving notice that a lawsuit has been filed against them under a reviver statute, defendant organizations should contact their attorneys, who typically suggest contact with their current insurance agents and brokers. Because of standard document retention practices, these companies quickly learn their current agent/broker has no information dating back decades. It’s at this point, or perhaps following a fruitless internal archive search, that defendant organizations should consider Insurance Archeology.

Insurance Archeology is the practice of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies. PolicyFind’s expertise is finding and bringing to light old insurance coverage for our clients. Under current and future reviver statutes across the country, historical CGL policies issued to businesses, schools, churches, and other organizations, are the first line of assets to be explored to pay for claims against them.

Contact PolicyFind today to learn more about your organization’s historical liability insurance portfolio.

U.S. District Court Finds Absolute Pollution Exclusion Ambiguous; What This Could Mean for Dry Cleaners/Industrial sites in New Mexico

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LEARN HOW CASE LAW MAY BE FAVORABLE FOR POLICYHOLDERS FACING ENVIRONMENTAL LIABILITY IN NEW MEXICO

BY: DRU CARLISLE

Case law could be poised to become more favorable for Policyholders in New Mexico who are facing challenges related to Environmental Liability. In nearly every state in the country (with Indiana as an exception), courts have agreed that the Absolute Pollution Exclusion bars coverage for addressing environmental contamination. Typically, this would mean that most general liability policies written after 1985 would not provide a defense to the Policyholder related to environmental cleanup.

In Indiana, a ruling in 2010 determined that the Absolute Pollution Exclusion was considered “ambiguous,” making it possible for many Policyholders to use their insurance policies up until around the mid-2000s.

WHAT COULD THIS MEAN FOR YOU?

Hypothetically, let’s say that you’ve been operating a drycleaning business since 1988 in Santa Fe, New Mexico. You’ve recently discovered, after attempting to sell your property and performing a Phase II, as required by the lender, that there is perchloroethylene contamination within the groundwater. Previously, the General Liability policies that you procured for your business would not provide coverage for remediation because of the Absolute Pollution Exclusion. However, if this ruling were to move forward as expected, you could now have applicable insurance coverage.

Even though this ruling could open a larger opportunity for policyholders to seek coverage from their past insurers on more recent policies, the policies that would be responding to these types of claims could have been issued more than 20 years ago, or earlier. If you don’t know anything about your old occurrence-based general liability policies, contacting an Insurance Archeologist is the best way to find them and bring them to bear.

For over 20 years, PolicyFind has helped business owners and property owners alike, as they navigate expensive environmental contamination cleanup efforts, by finding lost or misplaced General Liability insurance policies that can respond to such claims. PolicyFind will continue to watch this ruling unfold in New Mexico and will provide updates as they arise.

Contact PolicyFind today to learn more about how we can help you find evidence of your organization’s historical coverage.