Low, Ball & Lynch’s

WEEKLY LAW RESUME

July 7, 2005 Issue   By: Ray Coates

Coverage - Malpractice Policy - Claims Made and Reported

Walter R. Root v. American Equity Specialty Insurance Company

  Court of Appeal, Fourth District

(June 28, 2026)

A “claims made and reported” policy is generally interpreted very strictly with respect to the reporting of claims.  This case examines whether equity can excuse those provisions under certain circumstances. 

Walter Root was insured by American Equity Specialty Insurance Company under a legal malpractice policy from February 28, 2026 to February 28, 1999.  On February 25, 1999, Farideh Jalali filed a malpractice suit against Root.  On that date, Root received a telephone call from a person identified as an employee of a legal journal who sought Root’s reaction to this suit.  Root thought the call was a prank.  On March 2, Root read an article in the legal journal describing the lawsuit.  He immediately notified American Equity of the claim.  American Equity denied coverage because Root had not reported the claim during the policy period.  Root defended himself and sued American Equity for breach of contract.  American Equity obtained summary judgment based upon the lack of reporting during the policy.

The policy required the claim to be have made in and reported by the insured during the policy period.  The policy obligated the insured to notify the company as soon as he became aware of any act which could form the basis of a claim.  If notice was immediately given during the policy period, coverage was extended for any lawsuit subsequently filed, even after the policy period.  American Equity did not offer an extended reporting period endorsement, which would have extended the time to report claims. 

On appeal to the Court of Appeal, the judgment was reversed.  The Court stated that a claim was made against Root during the American Equity policy period.  The filing of the lawsuit, even if unserved, fit the definition of a claim against Root.  The issue before the Court was whether a report of the claim, after the expiration of the policy and where the insured was unaware of the claim prior to the policy’s expiration, with no extended claim reporting endorsement, was fair under all the circumstances. 

 

The Court noted that under traditional “occurrence” policies, the notice - prejudice rule applies.  This rule holds that late notice is not a defense to coverage as long as there is no prejudice to the insurer.  The notice - prejudice rule has not traditionally been applied to “claims made and reported” policies.

Under a “claims made and reported” policy, the reporting provision is a condition precedent of the policy.  Most professional malpractice insurance has been traditionally written on a “claims made and reported” basis.  This different form of coverage affects the costs of such policies.

The Court stated that a condition precedent could be excused where an inequity would result.  This is different from an application of the notice - prejudice rule.  The notice - prejudice rule requires that an insurer show that the delay in reporting  has prejudiced it.  This is a fairly inflexible standard.  However, application of an equitable excuse to the condition precedent would not result in the application of a bright line test.  Rather, its’ application would vary with the particular facts of each case. 

In this case, the fact that the insured could not buy an extended reporting endorsement was one factor of significance.  Other factors were whether Root had sufficient time to conduct an investigation as to whether indeed a claim had been made against him or whether he simply delayed in reporting the claim until after he received confirmation of it.  The Court felt that the record indicated sufficient facts to support an equitable excuse for not reporting the claim.  Therefore, summary judgment should not have been granted.  The Court reversed the case and returned it to the trial court to conduct further hearings to determine whether an equitable excuse should be applied to the condition precedent required for reporting during the policy period.

COMMENT

The “claims made and reported” policy has been traditionally considered a policy that requires strict compliance with the reporting requirements.  This decision, which the Court acknowledged is narrow, provides an exception to that rule. 

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