Navigating high stakes litigation exposures
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Social inflation
There once was a time when experienced legal counsel and claims professionals could, with some level of accuracy, evaluate whether excess insurers needed to be placed on notice of a litigated matter. That time seems to have passed. Now, it can be extremely difficult to predict which layers of coverage will be impacted, largely because of the effect of “social inflation” on verdicts and settlement values. With that as a backdrop, it’s critical to remember that failing to provide timely notice to excess insurers can jeopardize your ability to collect the insurance purchased to offset otherwise covered litigation exposures.
You should take steps to avoid unnecessary conflict with insurers over notice issues and seek to understand your potentially available coverage, with a focus on how notices are driven by the nature of the coverage purchased. Below are some general notice-related recommendations to consider:
Whether you provided timely notice will ultimately come down to the specific policy language and the facts at issue as interpreted through the lens of relevant state law. Our recommendations above are designed to help you avoid disputes with insurers and receive the full benefit of the coverage purchased.
These are designed to cover claims involving a loss occurring on or after a specified retroactive date and filed during the policy period, or within an extended reporting period, but providing notice even a day late can result in a denial of coverage.
An occurrence policy provides coverage for harm alleged to have happened during the policy period, regardless of when you are sued or file a claim. The specific language can vary, but occurrence policies may require notice when a loss is reasonably likely to implicate coverage, immediately, or as soon as practicable/possible. Notice rules under occurrence policies may be a bit less harsh than under claims-made policies, but timely notice is still critical. State law can have a great impact on determining what’s timely. Some states have “notice-prejudice” rules, which may prevent insurers from denying your claim based solely on delayed notice; however, the application of “notice-prejudice” varies from state to state, with some states requiring the insurer to prove they suffered prejudice due to the notice delay and others requiring the insured to disprove such prejudice. Some states only require insurers to demonstrate a probability of prejudice to deny coverage.
The “occurrence reported” policy covers qualifying occurrences within the meaning of the policy which are reported during the relevant policy period. It is sometimes considered a hybrid of the Occurrence and Claims-Made policies discussed above. If any Executive Officer becomes aware of an occurrence likely to involve the policy, notice must be given as soon as practicable and, in any event, during the Policy Period or the Discovery Period, if applicable. Precisely when an occurrence becomes likely to involve the policy is a question of fact. If an occurrence is not likely to impact the policy, you can give “permissive notice” of that occurrence at any time during the Policy Period or the Discovery Period, if applicable. Such notice is meant to be precautionary in nature because the Occurrence(s) at issue do not involve the policy at the time notice is given but may conceivably do so at some point in the future. Finally, you can give permissive notice of an “integrated occurrence”/IO at your option by designating it as such. All covered damages falling within the scope of the IO may be integrated together as a single occurrence.
Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).
1 Hindsight bias is the human nature to look back at an event and believe you could have predicted the outcome. It makes you believe your judgment is better than it is because, once you know the outcome, it becomes much easier to construct a plausible explanation as to how things developed.