Supreme Court Addresses Really, Really Late Notice: Like, After Settlement

Supreme Court Addresses Really, Really Late Notice: Like, After Settlement

Tapas: Small Dishes of Insurance Coverage News & Notes

An insured settled a case and then gave notice to its insurer. As you may expect, the Supreme Court of Nebraska in Rent-A-Roofer, Inc. v. Farm Bureau Property & Casualty Ins. Co., No. S-14-895 (Neb. Sept. 11, 2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], did not deliver good news to the insured.

On one hand, the court held that the insurer was still obligated to prove that it was prejudiced by the insured’s breach of the policy’s voluntary payments provision. But after that it went downhill fast for the insured. Addressing such proof of prejudice, the Supreme Court of Nebraska held:

“We conclude that prejudice may be shown as a matter of law where the insured’s settlement deprived the insurer of the opportunity to protect its interests in litigation or participate in the litigation and settlement discussions. In this case, at the time the insured entered into an enforceable settlement agreement, it was too late for Farm Bureau to act to protect its interests. There was nothing left for Farm Bureau to do but issue a check. An insurer cannot fail in defending a suit that it has no knowledge of. In this case, we conclude that this complete denial of Farm Bureau’s opportunity to engage in the defense, take part in the settlement discussions, or consent to the settlement agreement was prejudicial as a matter of law to Farm Bureau and find that Farm Bureau is not liable for defense costs.”

    Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.

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