Over the last several months, courts in Washington, Kansas, and Virginia have awarded victories to carriers asserting a suit limitation defense, and there are three valuable takeaways from the decisions. First, the insurer need not demonstrate that it was prejudiced by the failure to file suit within the limitations period; suit limitation provisions are not like notice of loss or proof of loss clauses. Second, the clock starts running on the suit limitation period when the policyholder has knowledge of the occurrence which ultimately gives rise to his or her loss, not when he or she has knowledge of the cause of that occurrence. Third, the provision is a contractual limitations period and, as such, not subject to state laws governing the operation of statutes of limitations.
The first case was Andrews v. St. Paul Guardian Ins. Co., 2015 U.S. Dist. LEXIS 104172, 2015 WL 4724574 (W.D. Wash., Aug. 9, 2015). The insured’s home in Seattle experienced the Nisqually Earthquake in February 2001, but he saw no sign of structural distress at the time. In 2014, he was planning a home improvement project and had the deck inspected, and it was then that he first learned of what he characterized as “massive visible damage” to foundation footings which “may” have been caused by the quake eleven years earlier. He brought suit after the carrier denied liability.
The contract of insurance had a three-year suit limitation clause, but the policyholder invoked Washington’s “late tender” rule. That stands for the proposition that failing to tender the defense of a third-party matter to a liability insurer only relieves the carrier of the duty to defend if there was “actual and substantial prejudice.” Judge Barbara Rothstein rejected the argument and granted summary judgment on the insured’s breach of contract count, stating that:
the “late tender” rule has no impact on an insurer’s ability to invoke a limitation clause in its insurance policy. Washington law is clear [that a] finding of prejudice is not required before an insurance company may rely on an insured’s failure to bring suit within the contract limitation period.
One month later, a unanimous panel of the Tenth Circuit Court of Appeals reached exactly the same result when construing Kansas law in B.S.C. Holding, Inc. v. Lexington Ins. Co., 2015 WL 5333086, 2015 U.S. App. LEXIS 16408 (10th Cir., Sep. 15, 2015). The policyholder owned the Lyons Salt Mine, which began experiencing abnormally high floor-to-ceiling closure rates in 2004. On January 18, 2008, water began to enter in large quantities (30,000 gallons per day), and outside mining experts were retained to investigate. They ultimately concluded in April 2010 that an abandoned surface gas well had been improperly sealed, deforming overlying rock formations and creating a path between the mine and an aquifer.
The insured made claim in May 2010, seeking $7.5 million for expenses it had incurred in attempting to diagnose and remedy the situation. It filed suit one year later only to have the district court grant the insurer’s motion for summary judgment. The trial judge found that the policyholder had discovered the occurrence giving rise to its loss by January 2008 at the latest, and he held that the action was time-barred by the policy’s twelve-month suit limitation provision. On appeal, the appellate court affirmed in an opinion by Judge Timothy Tymkovich.
The insured initially argued that Kansas courts disfavor the forfeiture of insurance benefits unless the carrier has been substantially prejudiced by a failure to comply with them, citing case law to that effect with respect to notice of loss and proof of loss clauses. The panel was unconvinced.
Although notice-of-loss and suit-limitation provisions may share some superficial similarities, their purposes are quite different. “ ‘The fundamental purpose [of notice-of-loss provisions] is that prompt notice will afford the carrier an opportunity to investigate the occurrence and thereafter properly dispose of any claims through settlement or defense. . . . In contrast, the purposes underlying suit-limitation provisions are much broader [and they] serve a number of purposes even when the insurer is not directly prejudiced by a late filing. . . . Although a majority of jurisdictions require an insurer to show prejudice to enforce a notice-of-loss provision, . . . most do not require an insurer to show prejudice to enforce a suit-limitation provision. . . . We have no reason to doubt that the Kansas Supreme Court would apply the majority rule.
Secondly, the policyholder contended that the clock on the twelve-month limitation period: (1) should not have started until April 2010, when its investigative team discovered the cause of the loss; and (2) was tolled while the insurer considered the claim. The first of these arguments fell on deaf ears as well, obviating the need to reach the second. The judges held that the suit limitation provision’s language (suit within twelve months “after discovery by the Insured of the occurrence which gives rise to the claim”) established that the limitations period begins to run when the insured has knowledge of the loss that ultimately results in a claim and not knowledge of the cause of that loss.
Nothing in the policy requires that the exact cause of the event be identified with any precision. What is important is the infliction of “direct physical loss” or damage to the insured’s property.
The panel distinguished cases in which the limitation period did not begin to run because without knowledge of the cause the policyholders had no reason to believe that a covered event had occurred, saying that this was simply not such a case.
ESC was well aware that it had substantial problems by mid-2008. . . . This was not latent damage . . . – 28,000,000 million gallons of water were introduced into the mine by the time notice was given.
Finally, September also saw Virginia’s highest court weigh in in Allstate Prop. & Cas. Ins. Co. v. Ploutis, 2015 Va. LEXIS 109, 2015 WL 5448064 (Va., Sep. 17, 2015). The contract of insurance had a two-year suit limitation provision, and the policyholder’s home suffered water damage in March 2010. After a dispute arose over the amount compensable under the policy, the insured filed a timely lawsuit in March 2012. At her request, however, an order of nonsuit was entered in that action one year later, and she subsequently filed a new suit in August 2013, well over two years after the damage had been sustained.
The carrier filed a demurrer, but the circuit court overruled it because Code § 8.01-229(E)(3) tolled “the statute of limitations” with respect to nonsuited actions. The standard policy in Virginia is the 172-line form contained in Code § 38.2-2105(A), and the trial court held that the two-year suit limitation provision in that form was “the Virginia statute of limitations, which would include all the tolling,” for fire insurance policies.
Speaking for a unanimous Virginia Supreme Court, Justice Elizabeth McClanahan disagreed, and she reversed. According to the high court, Code § 8.01-229(E)(3) meant “that after a voluntary nonsuit, the statute of limitations, not a contractual period of limitations, is tolled” (emphasis by the court). As the opinion explained:
The circuit court’s conclusion that the contractual limitations period in Allstate’s policy was a statute of limitations . . . ignores the voluntary nature of insurance contracts and the essential difference between a contractual period of limitations and a statute of limitations. In contrast to statues of limitations such as those found in Chapter 4 of Title 8.01 of the Code, contractual periods of limitations are incorporated into terms and conditions of contracts which the parties have voluntarily entered. . . . [N]either Code § 38.2-2105 nor the contractual period of limitations provided in Allstate’s policy is “statute of limitations” within the meaning of Code § 8.01-229(E)(3).