New York Defendants Must Comply with New Insurance Disclosure Requirements

Author: Cian McGeever

Guest Editor: Grace Shuman

Related Articles: New York, Insurance, Law Update

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June 7, 2022 9:38am

 

On February 24, Governor Kathy Hochul signed Senate Bill 7882A into law, making amendments, effective immediately, to the Comprehensive Insurance Disclosure Act passed by both the state Assembly and Senate.[i]

New York’s Comprehensive Insurance Disclosure Act was signed into law by Governor Hochul on December 31, 2021.[ii]  The Disclosure Act enacted more stringent requirements on defendants to “disclose the existence and contents of any insurance agreement under which any person or entity may be liable to satisfy part of all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of the final judgment.”[iii]  Further, it required defendants to disclose the identity of the claims handler or third-party administrator, amongst other duties.  Most importantly, the law applied retroactively to all cases, requiring compliance within 60 days and the disclosure was required to be certified as complete and accurate by defense counsel.[iv]

The amendments in Senate Bill 7882A seek to relieve some of the burdens placed on defendants.  Notably, the amendments removed the applicability of the law to prior cases and only applies to cases filed on or after, December 31, 2021.[v]  Additionally, the deadline to disclose insurance-related information in applicable lawsuits has been extended from 60 to 90 days following the service of an answer.  Automobile no-fault and personal injury protection policies are exempted.[vi]

The amendments impose the following duties on defense attorneys:

  • Complete copies of all potential applicable primary, umbrella, and excess policies, but allow for the disclosure of only declaration pages rather than complete copies of the policies by agreement between the parties;[vii]
  • Provide total limits available under the policy, including the amounts still available under the insurance policy to satisfy, or reimburse for, the judgment, taking into account any erosion or other offsets; and[viii]
  • Name and email address of the individual responsible for adjusting the claim; and[ix]
  • Requires a duty on the party to make “reasonable efforts” to ensure the disclosure is accurate and complete, but requires updates to the information at the filing of the Note of Issue, before mediation or settlement conferences and trial…[x]

 

Defendants no longer need to provide the phone number of the handling adjuster, nor do they need to identify any lawsuits which have reduced or eroded the limits of any available insurance. Further, defendants are no longer required to disclosure the amount of any payment of attorneys’ fees that have reduced or eroded the limits of any available insurance or any applications for insurance. [xi]

Although the amendments represent a step in the right direction for defendants, burdens remain.  Crucially, both the disclosing party and its attorneys must certify the disclosures required by the Act are accurate and complete through affidavits and affirmations.[xii] Further, the agreement between parties allowing for only the disclosure of the declaration page may be revoked by plaintiff’s counsel at any stage of litigation.

The disclosure obligations will likely be cumbersome for mass tort litigation with numerous defendants needing to disclosure lengthy insurance policies. Nonetheless, it is important for defendants ensure compliance with the disclosure requirements.

 

 

 


[i] https://www.nysenate.gov/legislation/bills/2021/s7882

[ii] McKinney’s CPLR § 3122-b

[iii] Id.

[iv] Id.

[v] McKinney’s CPLR § 3101(f)(1)

[vi] McKinney’s CPLR § 3101(f)(5)

[vii] McKinney’s CPLR § 3101(f)(1)

[viii] McKinney’s CPLR § 3101(f)(1)(ii)

[ix] McKinney’s CPLR § 3101(f)(1)(iii)

[x] McKinney’s CPLR § 3101(f)(2)

[xi] McKinney’s CPLR § 3101(f)

[xii] McKinney’s CPLR § 3122(b).

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