Tag: Insurance Archaeology

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.

Defense Lawyers Risk Federal Court Sanctions for Failure To Investigate and Present Applicable Insurance Evidence

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Increasingly, America’s civil courts are demanding that insurance defense attorneys be duly diligent in the handling of their client’s evidence of applicable insurance. Where attorneys fail to investigate and present what coverage may be available in their client’s insurance portfolio, they risk court sanction.

Tenth Circuit Upholds Counsel’s Duty to Investigate Coverage

Federal Rule of Civil Procedure 26(a)(1)(A)(iv) requires that parties to civil litigation in possession of insurance policies that may provide coverage be forthcoming even before discovery requests for insurance policies are made. It reads:

“[A] party must, without awaiting a discovery request, provide to the other parties… any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Fed. R. Civ. P. 26(a)(1)(A)(iv).”

So when Sun River Energy’s trial counsel argued before the District Court that it had born no duty to examine his client’s Director’s & Officer’s Liability insurance policy to see whether it provided coverage for securities violations and present it to opposing counsel, the 10th Circuit Court of Appeals found his argument wanting. In the case styled Sun River Energy v. Nelson decided in September, 2015, the appellate court determined that the District Court had not abused its discretion in sanctioning trial counsel for not disclosing its client’s policy until coverage had lapsed. It ruled that the attorney’s obligation “inherently includes an exercise of legal judgment regarding the possible availability of coverage under the specific terms of any insurance policies held by a party.” Where Sun River’s trial counsel “never took a serious look at whether there was applicable insurance,” the appellate court found that sanctions were in order even without a finding of intentional misrepresentation.

North Carolina Attorney Sanctioned for Failing to Disclose Umbrella Coverage

Not only is it necessary to investigate insurance coverage and present it to opposing counsel in discovery but it is necessary to present all the evidence of insurance in the client’s possession in addition to that policy under which you are providing a defense. In the recent case styled, Inc. Palacino v. Beech Mountain Resort, the U.S. District Court for the Western District of North Carolina found it necessary to sanction an insurance defense attorney for failing to properly discuss and review applicable insurance in her client’s insurance program. There, the attorney had revealed the first $1 million layer of commercial general liability insurance coverage but had failed to make additional inquiry that would have revealed a $10 million umbrella policy above the underlying coverage.

Insurance Archeology a Necessary Part of Defense

Given the growing insurance expertise demanded of insurance defense counsel, the hiring of an insurance archeologist to assist in the preparation of insurance evidence during discovery makes increasing good sense. Defense attorneys can likely protect against sanctions by showing that they were duly diligent in the accumulation and evaluation of applicable insurance documents at trial.

INDIANA SUPREME COURT REVERSES STANDARD FUSEE DECISION; “INTIMATE CONTACTS” REPLACES “SITE SPECIFIC” CHOICE-OF-LAW RULE IN MULTIPLE ENVIRONMENTAL SITE INSURANCE COVERAGE DISPUTES

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By David A. O’Neill, J.D.

The Indiana Supreme Court reached its decision in National Union Fire Insurance Company of Pittsburgh, PA et al. v. Standard Fusee Corp. on December 29, 2010.  In its soon to be published opinion, the Court announced its decision to overturn the Court of Appeals ruling that Indiana law governed the interpretation of general liability insurance policies in environmental remediation proceedings involving Standard Fusee sites in multiple states.

Given that Indiana insurance law concerning an insurer’s duty to defend is notoriously more policyholder friendly than that of most states, the “intimate contacts” rule outlined in the Supreme Court’s decision can be expected to discourage corporations with environmental contamination sites in Indiana and in additional states from bringing declaratory judgment actions in Indiana courts.  This is because the location of the contaminated property will no longer be the predominant factor in determining which state’s law the court will use to interpret the policies under which defense or indemnity for the characterization and remediation of the pollution is sought. Continue reading “INDIANA SUPREME COURT REVERSES STANDARD FUSEE DECISION; “INTIMATE CONTACTS” REPLACES “SITE SPECIFIC” CHOICE-OF-LAW RULE IN MULTIPLE ENVIRONMENTAL SITE INSURANCE COVERAGE DISPUTES”

Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language

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The Indiana Court of Appeals’ November opinion in the recent State Automobile Mutual Insurance Co. v Flexdar, Inc. (Ind. App. 2010) comes as good news to business owners like drycleaners who currently or have historically used tetrachlorethene (perc) or petroleum solvents that may have been released into the environment. The Appellate Court’s decision re-examined the landmark American States Insurance Co. v. Kiger (662 N.E.2d 945, Ind. 1996) as well as its progeny and found for Flexdar, Inc., the insured. (Kiger established that the absolute pollution exclusion found in many general commercial liability (GCL) policies is ambiguous and, as a result, ineffective in insulating insurers from their duties to defend and/or indemnify their insureds for claims made by the Indiana Department of Environmental Management that the insureds investigate and clean up releases of perc or other substances into soil and groundwater.) Continue reading “Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language”

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