THE RECENTLY ENACTED COMPREHENSIVE INSURANCE DISCLOSURE ACT AND THE RAMIFICATIONS IT HAS ON DEFENDANTS, THEIR ATTORNEYS, AND THEIR CARRIERS
January 5, 2022 Posted By Beth Rex, Esq. Insurance Coverage
On December 31, 2021, New York State Governor Kathy Hochul approved Senate Bill 7052, the Comprehensive Insurance Disclosure Act (“CIDA”), which became effective immediately upon signing. The CIDA has huge ramifications for insured defendants and their carriers; however, cognizant of the opposition to the Bill and the complaints that the Bill, in its original form, would require disclosure of personal and confidential business information, such as gross revenue, and disclosure of other burdensome information not relative to a claim, Governor Hochul “redlined” the Bill with numerous proposed changes. The New York Legislature, scheduled to meet on January 5, 2022, could approve the changes in the next few weeks; however, both the New York State Senate and Assembly must pass the amended version and Governor Hochul must sign it before it supersedes the CIDA currently in effect.
The original Bill requires that defendants provide copies of all applicable liability policies within 60 days after answering a complaint, but the proposed revisions provide that the disclosure must be made within 90 days. They also provide that the “proof and existence” of coverage can be in the form of a copy of the policy, or if agreed to by the plaintiff or party in interest in writing, by a copy of the Declarations Page. However, a party who agrees to accept only a Declarations Page can revoke the agreement and demand a copy of the policy at any time. In addition, the proposed revisions provide that the policies and agreements that must be disclosed are only those that relate to the claim being litigated.
The original Bill requires disclosure of the policy application, not currently discoverable under CPLR 3101(f). This requirement was vehemently objected to by insurance carriers, the Professional Insurance Agency of New York, and the defense bar, because insurance applications contain important personal and financial information, which while necessary to permit a carrier to assess the risks being insured, have no bearing on the amount of insurance coverage available to resolve a claim. Fortunately, the revised Bill eliminates this mandate and disclosure of policy application information would no longer be required.
The original Bill requires disclosure of the contact information, including telephone number and email address, of all persons responsible for adjusting the claim, including Third Party Administrators and the person to whom the TPA reports, but the proposed revision mandates that only the name, not the telephone number, and email address of the person responsible for adjusting the claim at issue must be disclosed.
The original Bill requires disclosure of any lawsuits that have or may reduce or erode the limits of any policy, including the caption, the date the lawsuit was filed, the identity and contact information of all attorneys for all represented parties, and disclosure of the amount of attorneys’ fees that eroded the policies. The proposed revisions modify this, and provide that only the actual, total limits available under the policy be disclosed, meaning the actual funds available after erosion of the policy by other claims and offsets.
The original Bill mandates updating of the policy information within 30 days of receiving information that the insurance disclosure is inaccurate or incomplete, including reductions in available funds because of erosion. This is also modified by the proposed revisions, which provide that defendants must make reasonable efforts to insure that the information provided remains accurate and complete, and provide updated information to any party to whom insurance information has been disclosed, at the filing of the Note of Issue, when participating in a formal settlement conference or voluntary mediation, when the case is called for trial, and within 60 days of settlement or entry of final judgment, inclusive of appeals.
The double certification mandate in the original Bill, pursuant to CPLR 3122-b, remains. The Bill provides for certification by the defendant or third-party defendant, and the attorney for the defendant or third-party defendant, by affidavit or affirmation that the information provided is accurate and complete and that the party and the attorney will undertake reasonable efforts to ensure that the information remains accurate and complete.
We are in agreement with the opponents of the bill, who take issue with even this “lightened” version of the CIDA. For one, notably absent is a compelling reason for the amendment to the insurance disclosure rules, as there were clear, unambiguous rules already in place, compelling disclosure of primary, excess, and umbrella policy information pursuant to CPLR 3101(f), which adequately provides for discovery of the contents of insurance agreements.
Moreover, the “double certification” mandate requiring both the party and the party’s attorney to certify by sworn affidavit or affirmation, under penalty of perjury, that the information provided is complete, puts an undue and impossible burden on persons, businesses, and their attorneys, who are not in the position to know whether the information about the policy, claims against the policy, and reductions to the available policy limits is accurate.
As for now, the original CIDA is in effect. We look forward to enaction of the modified version, and hope for further revisions.
French & Casey, LLP is available to assist you with any issues arising from the recently enacted Comprehensive Insurance Disclosure Act, or any other issues. Please contact Beth Rex at firstname.lastname@example.org to discuss any of the foregoing or for more information.
Beth Rex, Esq.