In its recent decision in Berkley Regional Ins. Co. v. Philadelphia Indemnity Ins. Co., 2012 U.S. App. LEXIS 15998 (5th Cir. Aug. 2, 2012), the United States Court of Appeals for the Fifth Circuit, applying Texas law, had occasion to consider how and under what circumstances an excess/umbrella insurer is prejudiced as a result of an insured’s failure to provide timely notice of occurrence or suit.
The insured, Towers of Town Lake Condominiums (“Tower”), had a $1 million primary policy with Nautilus and a $20 million excess/umbrella policy with Philadelphia. Towers was sued when a dentist slipped and fell on its premises. It placed Nautilus on notice of the suit, but did not give immediate notice to Philadelphia. At a mediation held prior to trial, the plaintiff’s “bottom” demand was $215,000 and Nautilus’ “top” offer was $150,000. The parties reached an impasse and the case, therefore, proceeded to trial. A jury subsequently rendered a verdict in favor of the plaintiff in the amount of just under $1.7 million. On the day of the verdict, Towers finally gave notice to Philadelphia. Philadelphia thereafter denied coverage based on late notice.
The Philadelphia policy required prompt notice of any occurrence involving permanent disabilities, or otherwise involving a coverage issue that could result in a reservation of rights or disclaimer of coverage. Additionally, the Philadelphia policy had a provision allowing it to associate in the defense, settlement and investigation of any underlying claim, at the discretion of Philadelphia. Nautilus, suing on behalf of Towers, argued that Philadelphia’s late notice disclaimer was not valid as Philadelphia was not prejudiced by Towers’ untimely notice. The lower court held in Nautilus’ favor. On appeal, the Fifth Circuit was asked whether as a matter of law “[d]oes the failure to give notice to an excess carrier until after an adverse jury verdict constitute evidence of prejudice that forfeits coverage?”
Looking to Texas case law on late notice, the Fifth Circuit observed that the purpose of notice provisions are to protect the insurer’s right and ability to participate in the underlying suit and to minimize its potential loss. While these cases generally involved primary insurers, the court could find no basis for drawing a distinction between the interests of primary insurers and excess insurers, explaining:
While their responsibilities are different and, thus, they may not suffer prejudice in all circumstances where a primary carrier would, [excess insurers] nonetheless have a contract with the insured and are entitled to rely upon the same contract principles [as do primary insurers].
The court noted that while it is not always easy to determine prejudice, certain bright lines can be drawn. For instance, prejudice will be presumed where notice is first given after a default judgment. The court further observed that notice given once the case is “over” is too late, citing to the Texas Supreme Court decision in National Union Fire Ins. Co. v. Crocker, 246 S.W.3d 603 (Tex. 2008). Nautilus nevertheless argued that Crocker was inapplicable because the case was defended by Nautilus. In other words, a distinction should be drawn between a situation where a primary insurer does not have a chance to defend and where an excess insurer does not receive notice until after verdict. The Fifth Circuit rejected this distinction, explaining:
[Nautilus] argues that this case is more like the “better late than never” cases and not like Crocker because no default was entered; rather, the case was litigated by competent counsel to a jury verdict. We disagree … Philadelphia was not just notified “late,” it was notified after all material aspects of the trial process had concluded and an adverse jury verdict was entered. It lost the ability to do any investigation or conduct its own analysis of the case, as well as the ability to “join in” Nautilus’ evaluation of the case.
Just as important for the court was that Philadelphia lost its opportunity to participate in the pretrial mediation:
Mediation, by nature, is a dynamic process, and for that very reason, parties are expected (and usually ordered) to appear ready to negotiate and with “full” settlement authority … Thus, we cannot fully know what effect, if any, Philadelphia’s participation would have had on this process – e.g., convincing Nautilus to take [plaintiff’s] offer of $215,000, convincing [plaintiff] to come down further or accept Nautilus’ offer of $150,000, or even “dropping down” to pay the $65,000 difference between the parties’ offers (with or without a side agreement between itself and Nautilus to litigate who must ultimately pay that amount). All of these rights were lost, leaving Philadelphia holding the bag for more than $700,000 in excess liability …
Finally, the court rejected Nautilus’ argument that Philadelphia’s rights were protected since it had an opportunity to participate in the appeal of the underlying verdict. Given the posture of an appeal and the standard of review applicable to the appellate issues, the court observed that the “cows had long since left the barn when Philadelphia was invited to close the barn door.”