New York State recently passed the Comprehensive Insurance Disclosure Act, signed into law and effective as of December 31, 2021. The act amended the disclosure provisions of Civil Practice Law and Rules § 3101 to significantly increase the insurance information required to be provided to opposing parties during litigation.
Previously, section 3101(f) simply required a defendant to disclose the “existence and contents” of any insurance policy that may provide coverage for the claims asserted against that defendant.
The newly amended section 3101(f) requires the following information to be disclosed:
- Complete copies of all primary, excess, and umbrella policies that may indemnify a party for the claim
- Contact information, including telephone number and email address, of anyone adjusting the claim; if the adjuster is employed by a third-party administrator, the disclosure also has to include the contact information for the person within the insurer to whom that adjuster reports
- The amount of coverage available under any policy
- Any lawsuits that have eroded any policy limits as well as any lawsuit that could erode the policy limits in the future, including the caption of the lawsuit, date filed, and contact information for all attorneys in each lawsuit
- The amount of any attorneys’ fees that have eroded any policy limit, along with the name and address of the attorney who received those fee payments
A party has to provide this information within 60 days of serving its answer and update that disclosure within 30 days of any changes during the entire litigation and for 60 days after settlement or entry of judgment. Either the party or their attorney has to certify that the information is accurate and complete and that reasonable efforts will be made in the future to ensure the disclosure remains accurate and complete.
In light of the substantial burden imposed by this law, amendments have been introduced in both the New York State Assembly and Senate that would slightly narrow the new disclosure requirements—such as increasing the time for the initial disclosure to 90 days, requiring updated disclosures only at discrete points of litigation (e.g., filing the note of issue), permitting the parties to accept policy declarations instead of the entire policy, and limiting the adjuster disclosure to one individual. Those amendments also clarify that the disclosure requirements only apply to lawsuits commenced after the law’s effective date.
Practical Tips
Barclay Damon is counseling its clients regarding satisfying the substantial burden imposed by the new law. More specifically, parties and insurers should consider the following: in the first instance, defense counsel has the responsibility with regard to compliance with the disclosure; insurers should promptly respond to requests for insurance information and whether there are other pending claims under the same policy or policies; and agents and brokers can serve as a resource for companies with large insurance programs—especially for identifying and obtaining excess or umbrella policy information.
If you have any questions regarding the content of this alert, please contact Joe Wilson, counsel, at jwilson@barclaydamon.com; Tony Piazza, Insurance Coverage & Regulation Practice Area chair, at apiazza@barclaydamon.com; Tom Cronmiller, Professional Liability Practice Area chair, at tcronmiller@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Carol Snider, Mass & Toxic Torts Practice Area chair, at csnider@barclaydamon.com; or another member of the firm’s Insurance Coverage & Regulation, Professional Liability, Torts & Products Liability Defense, or Mass & Toxic Torts Practice Areas.