On December 31, 2021, Governor Kathy Hochul signed the Comprehensive Insurance Disclosure Act which significantly amended New York’s Civil Practice Law and Rules (“CPLR”) pertaining to disclosure of insurance information and imposes obligations on defendants, their counsel and insurance carriers to provide extensive information pertaining to applicable insurance policies, including primary, excess and umbrella policies, at the onset of a litigation.
Previously, CPLR 3101(f) simply provided that “[a] party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in an action or to indemnify or reimburse for payments made to satisfy the judgment.” CPLR 3101(f) (2021). In enacting the Comprehensive Insurance Disclosure Act, the New York State Legislature sought to eliminate delay in disclosing the information required and eliminate the “confusing and conflicting array of case law regarding what must be disclosed and when.” An Act to Amend the Civil Practice Law and Rules, In Relation to Insurance Disclosures, S7052 (2021-22) (Sponsor Mem.).
The newly enacted CPLR 3101(f)(2) now requires defendants to provide all parties to an action with complete information for any insurance agreement through which a judgment could be satisfied within 60 days after serving an answer. The information required to be disclosed is specifically enumerated as follows:
(1) all primary, excess and umbrella policies;
(2) a complete copy of any policy, including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements and similar provisions, as well as an application for insurance;
(3) the contact information, including telephone number and email, of any person or persons responsible for adjusting the claim, including third-party administrators and persons within the insuring entity to whom the third-party administrator is required to report;
(4) the amounts available under any policy;
(5) any lawsuits that have reduced or eroded or may reduce or erode such amounts, including the caption of the lawsuit, the date the lawsuit was filed, and the identity and contact information of the attorneys for all represented parties therein;
(6) the amount, if any, of any payment of attorneys’ fees that have eroded or reduced the amount available under the policy, along with the name and address of the attorney who received such payments.
Once disclosed, a defendant is under “an ongoing obligation to make reasonable efforts to ensure that the information remains accurate and complete” throughout the pendency of the litigation and for 60 days after settlement or entry of final judgment in the case inclusive of all appeals. Any updates to the information must be provided within 30 days of receiving information that renders the prior disclosure inaccurate or incomplete. Lastly, the act also amends a separate CPLR provision which requires that any disclosures provided by CPLR 3101(f) must be certified by the defendant and its attorney (in separate affirmations) that the information is accurate and complete, and that reasonable efforts have been undertaken and will be taken to ensure that the information remains accurate and complete.
The new law clearly requires a significant undertaking for defendants, defense counsel and insurance carriers. Additionally, the law raises many questions which are undoubtedly going to be subject to litigation, challenges and interpretation. For example, what is defined as a “pending” action pursuant to the Act? Does this include actions that are stayed? Actions where a dispositive motion has been filed? Actions that have been settled but are pending Surrogates’ Court approval? In these cases, insurance disclosures may only serve to frustrate the progress of a litigation rather than eliminating delays on the over-burdened courts which the act was designed to do. Further, is a defendant required to update its insurance disclosure each month with the amount of attorneys’ fees that may have eroded the available limits of an insurance policy in the previous month? Based on the plain language of the Act, it appears that this would be the case, but such a task certainly seems unduly burdensome and arguably raises questions of attorney-client privilege.
When signing the bill into law, Governor Hochul proposed some changes which are currently under review by the Legislature. These changes include expanding the time frame to 90 days from service of an answer as opposed to 60, eliminating the requirement for disclosure of an insurance policy application, limiting the policies that must be disclosed to those that relate to the claim being litigated, and eliminating the requirement for disclosure of the claims adjuster’s telephone number. Nonetheless, the bill is effective immediately (as of December 31, 2021) and applies to all pending actions. Any information required by the law that has not previously been provided in pending cases shall be provided within 60 days of the effective date, or by March 1, 2022.
Gordon & Rees maintains four offices in New York State with 150 attorneys. Our attorneys have drafted the certifications required by the new CPLR sections and are prepared to assist our clients with navigating the changes required by the Act, including any changes or interpretations that may come at the legislative or judiciary level.
Please contact the authors of this article for any assistance in this regard.