The Institutes

Court Requires Insurer Show Prejudice for Coverage Denial

 Thursday, September 22, 2022

 JD Supra

The United States District Court for the Eastern District of Oklahoma, applying Oklahoma law, granted an insured’s motion for summary judgment, finding that a claim was sufficiently made and reported during the policy period.

The court ruled that the insurer would be required to show prejudice to decline coverage on late reporting outside of the policy’s ten-day reporting window because the claim was noticed within the policy period. The court also ruled that notice to the broker constituted effective notice to the insurer because of the specific language addressing notice in the policy.

A physician purchased a claims-made-and-reported professional liability insurance policy for the policy period of May 20, 2018 through May 20, 2019. The policy afforded coverage only if ‘[s]uch claim or potential claim is reported to us in writing within ten (10) days of receipt by the named insured of a written notice of claim.’

The physician treated a patient who later died. The administrator of her estate brought a malpractice action against the physician on April 27, 2019. The physician notified his insurance agent of the malpractice action on May 13, 2019 (more than 10 days after the claim was made but within the policy period). The agent then notified the insurer on June 6, 2019 (more than ten days after the claim was made and outside the policy period).

The insurer denied coverage on the basis of late notice and filed a declaratory judgment action. The parties cross-moved for summary judgment as to whether the claim was properly noticed.