Definition of Claim

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The latest episode of The D&O Diary Podcast is now available. Kevin LaCroix and Sarah Abrams are joined by their first podcast series guest, Marissa Streckfus, Vice President & Claims Manager at RT ProExec, to discuss the current private company D&O claims environment.

The conversation covers a range of topics, including private company business disputes, increasing antitrust exposures, bankruptcy-related claims, and the ways in which D&O policy structure can affect claims resolution. The episode also examines practical claims handling issues, including notice requirements, interrelated claims concerns, and other recurring coverage challenges.

Continue Reading The D&O Diary Podcast Series – Episode 5: Private Company D&O Claims

In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, Anne Ray, Lead Counsel of D&O and EPL Claims, Bowhead Specialty Underwriters, Inc., Elan Kandel, Member, Bailey Cavalieri LLC, and James Talbert, Associate, Bailey Cavalieri LLC, take a look at the top professional liability insurance coverage decisions from 2024. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.

Continue Reading Guest Post: Lessons from 2024: A Review of Key Insurance Coverage Decisions

As readers know, issues surrounding the timeliness of notice of claim are among the most frequently litigated insurance coverage issues. Notice of claims delays occur for many reasons; sometimes, for example, the policyholder does not recognize a particular matter as constituting a claim within the meaning of the policy; sometimes there are process or communications issues that interfere with notice timeliness.

In a recent case and that touches on many of these issues, the Second Circuit, applying New York law, held that an earlier demand letter met the policy’s claim definition, and that the question of whether the provision of notice of claim on Monday morning just after the Saturday expiration of the policy was untimely must be remanded for further consideration by the district court. This case is a cautionary tale in many ways and provides an appropriate occasion to review of some of the first principles of claim notice. The Second Circuit’s August 13, 2024, Summary Order can be found here. (Hat Tip to Geoff Fehling of the Hunton Andrews Kurth law firm for his August 15, 2024 LinkedIn post about the decision, here).

Continue Reading Thinking About Notice of Claim Timeliness

It is frequently the case that lawsuits are preceded by a letter in which a prospective litigant identifies a grievance and makes various kinds of threats or demands. A perennial question is whether this type of pre-suit demand letter constitutes a “claim” within the meaning of a claims-made liability insurance policy. The Second Circuit, applying New York law, recently affirmed a district court ruling holding that a pre-suit demand letter, received before the applicable policy’s coverage inception date, was a claim within the meaning of the policy. Because the claim was first made prior to the inception of coverage, the court held that there was no coverage for the subsequently filed lawsuit. The Court’s ruling provides an interesting take on this frequently recurring issue.

Continue Reading When Is a Pre-Suit Demand Letter a Claim?

In the following guest post, Anne Catapano, VP Financial Lines Claims, Ascot Insurance Company, Christina Errico, VP, Professional Liability Claims Manager, Ascot Insurance Company, Elan Kandel, Member, Bailey Cavalieri LLC, James Talbert, Associate, Bailey Cavalieri LLC and Tyler Hopkins, Associate, Bailey Cavalieri LLC, review the past year’s key management and professional liability insurance coverage decisions. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.

Continue Reading Guest Post: Year in Review: 2023 Key Management and Professional Liability Insurance Coverage Decisions

In an insurance coverage dispute arising out of an unusual underlying criminal proceeding, the Fourth Circuit Court of Appeals, applying Maryland law, has held that a Maryland attorney indicted for his alleged actions on behalf of certain Somalian entities is not entitled to insurance for his fees incurred in defending against the indictment. The Court’s decision raises interesting issues about the applicable professional liability insurance policy’s definition of Claim and the definition’s application in the context of the attorney’s criminal proceedings. A copy of the Fourth Circuit’s January 4, 2024 opinion can be found here.

Continue Reading Attorney’s Post-Indictment Defense Fees Not Covered Under Professional Liability Policy

In the following guest, Yaminah Williams, Assistant Vice President, Hiscox USA, Alicia Garcia, Claims Counsel, Hiscox USA, Katherine Hausmann, Senior Complex Claims Specialist, Hiscox USA, Elan Kandel, Member, Bailey Cavalieri LLC and James Talbert, Associate, Bailey Cavalieri LLC, review the key 2001 D&O insurance coverage decisions. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.
Continue Reading Guest Post: The Year in Review: 2021 Key D&O Insurance Coverage Decisions

One of the perennial D&O insurance issues is the question of coverage for costs incurred by the corporate organization in connection with responding to an SEC investigation – what is often referred to as entity investigative cost coverage. These coverage questions are so fraught because of the sheer magnitude of the expense that entities often incur when they find themselves subject to an SEC investigation. In the latest example of this recurring insurance coverage issue, a federal district court has held that the costs the auto rental firm Hertz Global Holdings incurred in connection with an SEC investigation are not covered under its applicable D&O insurance program. The court’s decision illustrates many of the recurring aspects of this frequent insurance coverage issue. Southern District of New York Judge Alison J. Nathan’s March 30, 2021 opinion in the case can be found here.
Continue Reading Formal SEC Investigation not a “Securities Claim” Under D&O Insurance Policy

As the policy definition of the term “Claim” has expanded in recent years, the range of incidents and procedures for which the policyholder must provide notice to the insurer has also grown. Among the recent expansions has been the inclusion in many policies of a “subpoena” within the meaning of the term “Claim.” As a result, a policyholder’s failure to notify its insurer of a “subpoena” could imperil coverage for a later related lawsuit. However, as a federal district court recently held, applying New York law, the notice requirement is not triggered if the prior “subpoena” does not meet the professional liability insurance policy’s definition of  the term “claim,” and, the court further held that the failure to notify the insurer of the subpoena did not preclude coverage for a later suit. The court’s decision sheds interesting light on a number of frequently recurring coverage issues.
Continue Reading Not Providing Notice of Subpoena That Wasn’t a Claim Doesn’t Bar Coverage for Later Lawsuit