Companies faced with asbestos, toxic tort, and environmental claims can tap into their historic insurance policies to help provide defense and indemnity coverage for those claims. But what if the companies have no idea where those historic insurance policies are? What can they do?
Hire an insurance archaeologist.
Insurance archaeologists identify possible sources to search for the missing policies, then develop a plan for locating the missing policies by tracking down those sources. Sources can include current and former employees, internal files, insurance company files, insurance agents and brokers, attorney files, accountant and bookkeeper files, the national archives, military archives, federal and state court files, customer files, regulatory agencies, customer files, state agencies, and independent archives.
Sometimes the actual insurance policies cannot be located, but secondary evidence of the policies may be found, and can be used to prove coverage. That secondary evidence may be:
- Partial policies, declaration pages or other records showing policy numbers and dates of coverage
- Unexecuted policy forms accompanied by a declarations page or other supporting evidence
- Certificates of Insurance
- Subsequent policies suggesting prior similar coverage
- Records produced by insurance brokers, including ledgers or schedules of insurance
- Interoffice memoranda and correspondence proving the insurer believed a policy existed
- Premium invoices
- Proof of premium payment, such as checks
- Board of Directors’ meeting minutes
- Excess policies providing reference to primary policies
- Loss prevention surveys conducted by insurers
- Specimen or sample policies used by the insurer during the policy period in question
- Accounting records or billing information
- Binders or cover notes
- Retrospective premium reports
- Reinsurance records
- Placing slips
- Loss history cards
- Schedules of underlying policies
- Testimony from an insurer’s employees concerning coverage
- Testimony of the insured’s employees as to the minimum amounts of insurance maintained by an insured
- Testimony of brokers, consultants or insurance experts s to policies that were issued to an insured
- Testimony of insured’s employees regarding insurance policies issued to the insured
There are a number of court cases which have discussed the use of secondary evidence to prove coverage. See Dart Industries, Inc. v. Commercial Union Insurance Co., 28 Cal.4th 1059, 52 P.3d 79 (Cal. 2002); Century Indemnity Company v. Aero-Motive Company, 254 F. Supp.2d 670 (W.D. Mich. 2003); PSI Energy, Inc. v. The Home Insurance Company, 801 N.E.2d 705 (Ind. App. 2004); Burt Ridge Box, Inc. v. Travelers Property Casualty Corp., 302 F.3d 83 (2nd Cir. 2002); and Coltec Indus. v. Zurich Ins. Co., 2002 U.S. Dist. LEXIS 18979 (N.D. Ill. Sept. 30, 2002).
Lost or missing insurance policies do not have to be a bar to coverage. Often, with a diligent search, such policies, or secondary evidence of them, can be found and then used to demonstrate that coverage exists for the claims faced by the company.