Also, there are a lot of places to find clues about a
policyholder’s historic insurance program outside
of the company:
• Insurance Companies: Upon request, some will
at least make a nominal attempt to search their
files. If pressed, they may look at their databases.
• Insurance Brokers: A great resource for documents
as well as personal knowledge of insurance placed.
• utside Underlying Defense Counsel: They
O
may have files with evidence of policy information, often in relation to old third-party lawsuits
or claims they defended (maybe at the cost of the
insurance company). Outside legal counsel also
may be able to advise you regarding what secondary evidence constitutes the “best” evidence of a
policy’s existence.
• The Government: If you sold products to, or did
work for, a local, state or federal entity, chances
are you had to provide evidence of insurance.
The document probably still is kept in a box (indexed) at a warehouse in Bethesda, Maryland,
monitore d by the U.S. Navy.
Even if your search fails to find the policies themselves, “secondary evidence” may suffice to prove
their existence and terms. The starting point is a
policy number, because from that number a skilled
insurance archeologist can ascertain the type of
coverage (i.e., workers’ compensation vs. CGL vs.
first-party property, etc.), the issuing insurance
company, and possibly the standard insurance form
that was used. An insurance archaeologist or
expert then can reconstruct the policy from
a library of policy forms historically
used by many insurance companies. In addition, it is important
to find evidence of the policy
period and the limits of
liability for the policy.
With this basic information and proof of a diligent search, many
courts will find
that a policyholder
has sustained its
burden of proving
the existence and
terms of coverage.
Other People’s Insurance
Policies sold to your company may not be your
only source of coverage. Many companies have
themselves designated as “additional insureds”
on other company’s policies. These policies may
provide millions of dollars in additional coverage.
Review old contracts and agreements with contractors, subcontractors, franchisees, and other
business partners to see whether they agreed to
purchase insurance that will cover your company.
If the answer is yes, contact them at once and ask
for policies, certificates and any other evidence of
potential coverage.
Conclusion
Old insurance policies may provide coverage for
current claims. Companies potentially exposed to
long-tail claims should ensure that their old insurance policies have been archived properly. If there
are gaps, start looking for policies or evidence of
policies now, so that you will be prepared in the
case of a lawsuit alleging an old injury. And going
forward, if you have to make room, make sure
you don’t toss your insurance. You wouldn’t throw
away gold, would you? s
Robert M. Horkovich is a shareholder in Anderson
Kill’s New York office, and chair of the firm’s
insurance recovery group. He is a trial lawyer
with substantial experience in trying complex
insurance coverage actions on behalf of corporate
policyholders and has obtained over $5 billion
in settlements and judgments from insurance
companies for his clients over the past decade.
212-278-1322
[email protected]
Diana Shafter Gliedman is a shareholder in
Anderson Kill’s New York office. Ms. Gliedman
represents policyholders in actions ranging from
small insurance coverage disputes to multi-party,
multi-issue insurance coverage litigations.
212-278-1036
[email protected]
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