By Stephen M. Feldman and Nicholas P. Gellert, Attorneys, Perkins Coie LLP
Although the case arose within the unique framework of Louisiana's Direct Action Statute and was said to be an issue undecided by the Louisiana Supreme Court requiring an "Erie guess," the Fifth Circuit's decision in First American Title Ins. Co. v. Continental Cas. Co., 2013 U.S. App. LEXIS 4153 (5th Cir. Feb. 28, 2013), that an insurer was excused from a claim for which it did not receive notice within the policy period of a "claims-made-and-reported" policy is far from unique. The case highlights the importance of complying with the notice provisions set forth in insurance policies, especially claims-made-and-reported policies. This commentary examines the facts and holding of the First American case, and discusses the differing notice provision rules under "occurrence," "claims-made" and "claims-made-and-reported" policies, as well as certain developments with respect to the notice rules under these various types of policies. It further discusses some exceptions to the general rules as to notice, including a state supreme court decision finding that "late" notification of a claim barred insurance recovery even when there had been no prejudice to the insurer and another state's appellate court decision that recognized that, under certain circumstances, there may be equitable grounds to excuse the failure to comply with the timely reporting requirement.
Stephen Feldman and Nick Gellert are commercial litigators at Perkins Coie LLP, respectively in the firm's Portland and Seattle offices. Mr. Feldman is a 1993 graduate of Lewis & Clark Law School, and focuses his practice on representing policyholders in connection with insurance coverage disputes, as well as representing clients in connection with intellectual property matters. Mr. Gellert is a 1988 graduate of Georgetown University Law Center. He too focuses on policyholder insurance representation, as well as other commercial disputes, including real estate and construction related matters. Both Mr. Feldman and Mr. Gellert are Senior Counsel at the firm, having spent their entire careers since law school at the firm, and both have handled numerous insurance-related matters throughout their combined nearly 50 years of practice.
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