The December 31 law, in a reversal from the previous statute, provided that “an application for insurance shall be treated as part of an insurance agreement and shall be disclosed.” Section 3101(f)(3). It is not clear whether any of the triggering event options – injury/damage, claim made/reported, or occurrence/event reported – constitutes a “loss” in the context of liability insurance.Īs in the prior version, signed on December 31, plaintiffs can consent to production of declaration pages alone, with the reservation that they can seek more fulsome insurance disclosures later in the litigation when more detailed information might be needed. While some policies are triggered by injury or damage during the policy period, others are triggered by a claim made or reported during the policy period or reporting period, and others are triggered by an event or occurrence reported during the policy period or reporting period. Given the different types of insurance and differing triggering provisions of those different policy forms, this added phrase is hard to follow. Subparagraph (ii), which had required production of “a complete copy of any policy, contract or agreement …, including … declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions” that may respond to a judgment in favor of the plaintiff, now requires “proof of the existence and contents of any insurance agreement in the form of a copy of the insurance policy in place at the time of the loss” that may respond to a judgment for the plaintiff on the claims at issue in the case. On the other hand, the “sold or delivered” phrase may only modify “surplus line insurers and self-insurance programs,” which also makes little sense. Further, this portion of the statute might discourage use of New York insurance brokers. The rationale for such a limitation is hard to fathom since many defendants in New York civil proceedings are not based in New York and may buy their insurance in other markets. The statute’s disclosure requirements can be read to apply only to policies “sold or delivered within” New York, a limitation that did not appear in the prior version of the statute and continues in S7882/A8852. The drafting of subparagraph (i) is not a model of clarity. Narrowing new insurance disclosure requirementsįor any potentially responsive “insurance agreement,” the statute requires production within 90 days of the defendant’s answer of:Īll primary, excess and umbrella policies, contracts or agreements issued by private or publicly traded stock companies, mutual insurance companies, captive insurance entities, risk retention groups, reciprocal insurance exchanges, syndicates, including, but not limited to, Lloyd’s Underwriters as defined in section six thousand one hundred sixteen of the insurance law, surplus line insurers and self-insurance programs sold or delivered within the state of New York insofar as such documents relate to the claim being litigated Most significantly, the statute would no longer apply to cases pending prior to the statute’s effective date, only to those commenced on or after its effective date. On January 18, the Senate Rules Committee took up Senate Bill 7882, and the Assembly’s Committee on Judiciary took up the parallel Assembly Bill 8852, containing a raft of amendments that would, if passed and signed by Governor Hochul, substantially limit the scope of the statute she signed less than a month ago. As of this week, however, we have some insights. In signing the statute, which had flown under the radar since being worked up by the legislature last spring, however, the governor signaled that changes were needed, but it was unclear which of the many new requirements of the statute were the focus of her concern. The new statute by its terms applies to both pending cases and new filings, with continuing disclosure obligations through appeals, and places heavy burdens on defendants and their counsel, going far beyond the previous insurance disclosure rules for New York state courts and the rules that apply in federal courts. On December 31, New York’s Governor Kathy Hochul signed into law a change to the insurance disclosure requirements that applies to all civil cases filed in New York state’s courts. By Ann Kramer on 21 January 2022 Posted in Insurance Coverage, Insurance General
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