We previously explained how a claims-made coverage gap can occur when a law firm switches insurers.
Another type of claims-made coverage gap can occur if attorneys are lax in re-porting a claim to their insurer.
This is due to the fact that the term “claims-made” is a misnomer, because most such policies are actually “claims-made and reported”, which means that the claim must be made against you during the current policy period, i.e., while you have a policy in effect with that insurer, and you must re-port the claim to your insurer during same policy period in which it was made, i.e., your current policy period.
This language from Aspen Insurance Company’s legal malpractice policy is typical:
I. INSURING AGREEMENTS
A. Coverage
The Company will pay on behalf of the Insured all sums in excess of the deductible that the Insured shall become legally obligated to pay as damages and claim expenses as a result of a claim first made against the Insured and reported in writing to the Com-pany during the policy period…(emphasis added)
This means that if you had a policy in effect from, i.e., January 1, 2015 – January 1, 2016, received a claim on the December 31, 2015, and reported it to your insurer on January 2, 2016, the insurer could deny coverage, since you didn’t report the claim during the policy period in which you received it. That’s true even if you renewed your policy with that insurer.
Many insurers avoid this problem by allowing a grace period to report claims after the end of the policy period, usually 30 or 60 days. For example, here’s the language in CNA’s policy:
CONDITIONS
A. Notice
1. Notice of Claims
The Insured, as a condition precedent to the obligations of the Company under this Policy, shall as soon as reasonably possible after learning of a Claim give written notice to the Company during the policy period of such claim. The Company agrees that the Insured may have up to, but not to exceed, sixty (60) days after the Policy expiration to report a claim made against the Insured during the policy period if the reporting of such claim is as soon as reasonably possible. (Emphasis added)
The grace period applies whether or not you renew your policy.
Other insurers handle the problem by including a “continuous coverage” clause in their policy, which applies only to insureds that renew with the insurer:
“if any Insured gives written notice of a Claim to the Company…during the Policy Period of any subsequent policy issued to the Named Insured as a result of continuous and un-interrupted coverage with the Company, any Claim subsequently made against any Insured shall be considered to have been first made during the Policy Period the In-sured first became aware of a Potential Claim”. (Emphasis added)
In other words, if you received a claim during your current policy period, you can report it without penalty during the next policy period, if you renewed your policy. However, these “continuous coverage” policies are often only issued to large law firms, which usually have a large deductible or self-insured retention.
So, if your policy is claims-made and reported, and has neither a grace period nor a con-tinuous coverage clause, your insurer could deny coverage if you report a claim even one day after the end of your policy period.
Further, the courts (properly) treat each policy like a self-contained unit, even if it’s been renewed for many years, and would likely affirm any denial of coverage based on a claim being reported after the policy in which it was received, even if it was just one day late.
For example, in A.B.S. Clothing Collection, Inc. v. Home Ins. Co. (1995) 34 Cal.App.4th 1470, 1476-78 [41 Cal.Rptr.2d 1667], the court ruled that the renewal of an insurance policy is a separate and distinct contract from the prior policy, not a continuous contract, “unless there is clear and unambiguous language showing the parties intended to enter into one continuous contract.” In other words, the courts won’t find that a continuously renewed policy is a ‘de facto’ continuous contract.
This clearly creates a potential gap in coverage for attorneys whose policy doesn’t have either a grace period or continuous coverage clause. However, insurers rarely, if rarely, exploit it, because denying coverage to a firm merely because it reported claim a day or two after the policy period ended, would make for terrible customer relations, and would generate “pushback” from brokers, because it exposes them to an E&O claim from their client.
That notwithstanding, the solution to avoiding a claims-reporting gap is to promptly re-port all claims or potential claims to your insurer,. However, sometimes a lawyer com-mits an error but believes that it can be fixed, or that the client won’t actually file a claim, and doesn’t report it to the insurer, because s/he’s afraid that doing so will increase their premium.
Further, many lawyers believe that if they maintain continuous coverage with the same insurer, they can report a claim in the policy period after they received it (within reason, i.e., a couple of days into the new period, if they received it in the last few days of the prior period).
However, as shown above, this isn’t true.
The safest action is to report all potential claims to your insurer right away. However, if you think you can resolve a potential claim without involving your insurer, then at least check your policy’s claim reporting requirements before you do so, i.e., determine if your insurer allows a grace period to report claims after the policy period ends. If so, then you can try to resolve the matter yourself, but make sure that if you can’t, you report it to your insurer before the grace period expires.
If your policy lacks a grace period, and you receive a potential claim near the end of your policy period, the prudent thing to do is to report it to your insurer before the end of your policy period. You can still try to resolve it with the client on your own, or even hope it just “goes away”, but be sure to protect yourself by reporting it before your policy expires.
About Curtis Cooper