Natasha Romagnoli, Steven J. Roman, Anna K. Milunas, and Amit Roitman ●
New York’s Child Victims Act (“CVA”), which opened a one-year revival window extending the statute of limitations for claims of childhood sexual abuse, had a substantial impact on the state’s businesses and other institutions. The impact of New York’s Adult Survivors Act (“ASA”), signed into law this summer, will be even greater.
In Part 1 of this two-part series, we covered the implications of the ASA, preparing for ASA claims, and insurance coverage for sexual abuse claims.
This post (Part 2) gives practical guidance on how to prepare for and mitigate your risk under the ASA.
Locating Coverage Years—or Decades—After the Fact
Locating old insurance policy documents can be difficult, time consuming, and sometimes ultimately fruitless. Like some of the most famous texts of antiquity, we can today only catch glimpses of them in fragments or passages quoted and requoted in other texts down the centuries. The analogy serves as a reminder that the absence of coverage documents from the period in question does not signify an absence of coverage.
In sexual abuse cases, the state of New York encourages a generous interpretation of evidence of past insurance coverage, no matter how scant. In the courts, defendants can use secondary evidence such as policy renewal documents, supplementary policy documents from the period, letters and meeting minutes, and even certificates of insurance to establish the coverage in place at the time of the abuse. During the CVA revival window, the state’s Department of Financial Services asked insurers to go above and beyond and “act in good faith” in determining historical coverage, “so that victims will be compensated.”
Whether the same spirit will be brought to bear on ASA cases remains to be seen. While New York has been clear in its commitment to restorative justice for sexual abuse survivors, having the actual documents in hand allows targeted entities to develop a detailed defense strategy well in advance of the anticipated trial. Businesses and other organizations that believe they could be named as defendants under the ASA should begin the work of locating old policies now.
Continue reading “Policyholders Should Prepare Now to Demand Coverage for New York Adult Survivors Act Claims (Part 2)”
An issue frequently raised in coverage disputes involving claims-made liability insurance policies is determining whether certain pre-lawsuit events or disputes constitute a “claim” sufficient to trigger coverage.
In April 1977, a few weeks before I began practicing law, senior claims executives of eighteen liability insurance companies met to discuss the insurance implications of asbestos bodily injury claims. A majority of those at the meeting concluded: