Author: ehemingway

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.

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.

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.

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.

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.

 

THE U.S. DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO HAS FOUND THE TERM “POLLUTANTS” TO BE AMBIGUOUS IN CERTAIN GENERAL LIABILITY POLICIES ISSUED IN THAT STATE. 

BY: DAVID A. O’NEILL, JD

The U.S. District Court for the District of New Mexico has ruled that this ambiguity renders the absolute pollution exclusions featured in these policies ineffective, reinstating coverage. That is the takeaway from the Court’s recent Memorandum Opinion supporting its summary judgment rulings in the case of Chisolm’s Village Plaza, LLC v. Travelers Commercial Insurance Co., et al., 2022 WL 3369202.

The City of Las Cruces and Dona Ana County had filed complaints against a shopping mall and dry cleaner, among others, seeking cost recovery and contribution under CERCLA for responses to releases and expected releases of hazardous substances at the Griggs & Walnut Superfund Site. The New Mexico Environment Department had detected PCE contamination in four city water wells. The resulting lawsuit was a diversity case in which the U.S. District Court was required to apply New Mexico law. Reviewing New Mexico court decisions, the District Court determined that this was a case of first impression. While New Mexico’s Supreme Court had determined that the qualified pollution exclusion was ambiguous in United Nuclear, 285 P.3d 644 (2012), no ruling had been made by that court regarding the absolute pollution exclusion. Further, while the Tenth Circuit Court of Appeals had ruled on the absolute pollution exclusion, these were rulings based on Colorado, Kansas, Oklahoma, and Utah law, not New Mexico law.

Encountering this lack of precedent relating to the absolute pollution exclusion, the District Court conducted an exhaustive review of various state supreme court decisions to determine how the Supreme Court of New Mexico would rule. In doing so, it grouped the decisions into three “camps”: (1) the literal approach, (2) the situational approach, and (3) the Indiana approach. The literal camp was comprised of opinions that apply the exclusion as “clear and unmistakable.” The situational camp was comprised of opinions that apply the exclusion only in situations of “traditional environmental pollution.” The Indiana camp was comprised of the Supreme Court of Indiana’s ruling in the case styled State Auto v. Flexdar 964 N.E.2d at 850-851.

The District Court predicted that the New Mexico Supreme Court would find enough similarity in Flexdar’s and United Nuclear’s approach to ambiguity to construe the absolute and qualified pollution exclusions in the same manner as Indiana has construed them. Like Indiana, the District Court expects that New Mexico will “require that the insurer specify what falls within its pollution exclusion.” It will find Flexdar persuasive because “its approach is the least tolerant of contractual ambiguity and provides the most protections for the insured.”

To learn more about what this could mean for those facing environmental liability in New Mexico, read U.S. District Court Finds Absolute Pollution Exclusion Ambiguous; What This Could Mean for Drycleaners/Industrial Sites in New Mexico.

An ineffective absolute pollution exclusion in New Mexico may be expected to create exposure for insurers under standard general liability policies issued to commercial businesses from 1985 through the present.

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