In a May 16, 2013 decision (here),
Eastern District of Missouri Magistrate Judge Terry Adelman,
applying Missouri law, determined that the failure of an insured under a
management liability insurance policy to provide timely notice of claim
precluded coverage under the policy, even in the absence of a showing of
prejudice to the insurer.
On December 28, 2007, Secure Energy's Board of Directors
received a demand from Michael McMurtrey regarding commissions he allegedly was
owed. On May 16, 2008, McMurtrey filed a lawsuit against Kenny Securities and
against John Kenny, a director and founder of Secure Energy. On April 13, 2009,
McMurtrey added Secure Energy as a defendant to the lawsuit. McMurtrey sought
to recover $1.8 million in commissions and $2 million in punitive damages.
McMurtrey alleged breach of contract, unjust enrichment, fraud, negligent
misrepresentation, and conspiracy against Secure Energy. McMurtrey voluntarily
dismissed his suit on June 25, 2009 but refilled it against the same defendants
on July 8, 2009.
Secure Energy's management liability insurance policy
provided that the insured must provide notice of claim to the insurer as soon
as practicable after becoming aware of the claim but no later than 60 days
after the expiration of the policy. However, Secure Energy did not notify the
insurer of the claim until May 4, 2011. According to the Magistrate Judge's
opinion, the reason for Secure Energy's delay in providing notice was it was
unsure whether it had a claim. However, the Magistrate Judge also noted that in
2009, the company's insurance broker had advised the company that while there
may be little or no coverage under the policy for the claim, the only way to
determine coverage is to submit a claim.
The insurer rejected coverage for Secure Energy's claim
on the grounds of late notice. Secure Energy then filed an action seeking a
judicial declaration that there was coverage for the claim under the policy.
The insurer filed a motion for summary judgment arguing that coverage was
precluded because Secure Energy had failed to provide timely notice. Secure
Energy argued that coverage was not precluded because the insurer had suffered
no prejudice from the untimely notice.
The May 16, 2013 Decision
In a short May 16 opinion, Magistrate Judge Adelman
granted the insurer's motion for summary judgment. Secure Energy had tried to
argue that under Missouri law, an insurer cannot deny coverage for a claim
based on late notice unless the insurer can demonstrate that the insured's
failure to comply with the notice provisions prejudiced the insurer. The
insurer argued that under Missouri case law, in order to deny coverage on the
basis of late notice, an insurer under a "claims made" policy need not
After reviewing the case law, Magistrate Judge Adelman
observed that "the Missouri Supreme Court distinctly held that an insurer is
not required to show prejudice in a 'claims made' policy. Several Missouri
state and federal courts have followed this reasoning." Magistrate Judge
Adelman concluded that the insurer "is not required to demonstrate that it was
prejudiced by Secure Energy's failure to provide notice under the claims made
policies. Secure Energy's failure to give the requisite notice precludes it
Delayed notice is a recurring problem for policyholders
seeking to obtain insurance coverage for claims. The reasons that the notice is
delayed are innumerable. All too often, it will emerge that the reason the
notice was delayed is that the policyholder did not think there was coverage
or, as apparently was the case here, the policyholder did not think there was
yet a claim. In other cases, the insured simply concluded that the claim was no
big deal - only to find out later that it is a bigger problem than first
appeared. Because I have seen these patterns so many times over the years, I
have developed a simple rule - always give notice. No good comes from
withholding notice. If you are asking the question whether or not you should
give notice, then you should give notice.
But if policyholders sometimes hurt themselves by
withholding notice, it can sometimes appear that some carriers in some
instances seek to use the notice requirements as a coverage dodge. (Please note
that in making this observation here, I am in no way commenting on the
carrier's behavior in the Secure Energy case.). For that reason, I am concerned
when late notice can serve as a basis to deny coverage even in the absence of
prejudice to the insurer. In fairness, the notice here was years late. The
tardiness of the notice here is hard to excuse, particularly when two years
prior to actually providing notice, the company had been advised by its broker
to go ahead and give notice. But even here, the carrier does not appear to have
prejudiced by the delay - or, at a minimum, did not claim to have been
prejudiced by the delay.
The best way for companies to avoid problems with the
notice requirement is to have processes to ensure that notice to the insurer is
quickly provided after a claim has arisen. However, long experience has taught
me that in the real world, the insurer is not always notified right away. The
simple fact is that company management, particularly at some smaller companies,
is focused on operational issues and is not always sophisticated about
insurance issues. Courts evolved the "notice prejudice" rule in recognition of
this practical reality.
I know that there are a number of jurisdictions where the
courts have held that the "notice prejudice" rule is not applicable in the
claims made context. I would argue that the "notice prejudice" rule has a
place, even in the world of "claims made" policies. As I discussed in a prior
some courts have applied the notice prejudice rule even in the claims made
context (although, it should be noted, in that prior post, I noted some
concerns with the court's application of the rule in that specific case).
My concern is that without the application of the "notice
prejudice" rule, the notice requirements can become a trap for the
unsophisticated or uninformed insured and result in an inadvertent loss of the
insured's rights under the policy. I recognize that insurers want to be able to
be involved in claims and don't want to get caught up in murky questions about
what may constitute "prejudice," and therefore prefer a bright-line notice
test. I would argue that the "notice prejudice" provides an appropriate
balancing of interests. Obviously, the later a policyholder's notice of claim is,
the harder it would be for a policyholder to obtain coverage under the
I know my friends on the carrier side may have differing
views, and in particular may well contend that the notice provisions serve
important purposes that should not lightly be set aside. I invite readers to
add their views using this blog's comment feature in the right hand column.
BlackRobe Litigation Funding Firm Shuts Down: In
recent posts (most recently here),
I have noted with alarm the apparently proliferation of firms in the U.S.
formed to provide litigation financing. The firms are in the business of
providing funding for litigation as a form of investment. Among the many
developments in this area that captured my attention was the 2011 formation of
BlackRobe Capital Partners. The firm's principals included Sean Coffey, a
former partner at the Bernstein Litowitz plaintiffs' securities firm, joined a
year later by retired Simpson Thacher partner Michael Chepiga. As I noted
at the time, the involvement of highly respected attorneys like Coffey and
Chepiga added an entirely new dimension to the emerging litigation funding
Now comes the news that BlackRobe is closing down. As
reported in a May 14, 2013 Wall Street Journal article (here),
the firm's founders are "walking away from the litigation-finance firm, citing
internal disagreements and a failure to attract enough outside capital from
investors." Though the firm has made over $30 million in investments, "the firm
wasn't able to raise a large discretionary pool of capital."
It is hard to know how much significance to attach to
BlackRobe's demise. On the one hand, a significant factor contributing to the
firm's closure were philosophical differences among the firm's founders. On the
other hand, the firm was also having trouble raising capital, which could
suggest an overall lack of investor support for the litigation funding project.
However, representatives of several more established litigation funding firm
are quoted in the Journal article to the effect that their firms have
had no difficulty raising money. So it is possible that BlackRobe's quick end
reflects nothing more than the difficulty that startups face in an evolving
Susan Beck's May 16, 2012 Am Law Litigation Daily
article about the BlackRobe firm's demise (here),
includes comments from several of the firm's principals that seem to
corroborate the conclusion that firm's end was in large measure the result of
company-specific factors, including in particular differences among the firm's
principals about how to run the firm.
Although the demise of the BlackRobe firm unquestionably
is noteworthy, it may or may not say anything about the emergence of the
litigation funding phenomenon. Certainly the firm's difficulties raising
capital suggest that it may be a difficult field for startups. Overall, it
seems that litigation funding will continue to be a factor, notwithstanding
LIBOR Claimants Face High Hurdles: As
readers of this blog know, the civil claimants attempted to recover damages
against the LIBOR benchmark rate-setting banks have found the going difficult.
For example, most recently the claimants in the LIBOR scandal-related
securities suit filed against Barclays had their action dismissed (about which
A May 16, 2012 Law 360 by Michael Gass, Stuart Glass and Kevin Quigley
of the Choate Hall law firm entitled "LIBOR Litigation Must Overcome
Significant Obstacles" (here,
subscription required) reviews the various adverse litigation developments
the LIBOR scandal claimants have had to face and concludes that the claimants'
"obstacles to recovery are inherent and, perhaps, insurmountable."
other items of interest from the world of directors & officers liability,
with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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