On December 31, 2021, New York Governor Kathy Hochul signed the Comprehensive Insurance Disclosure Act (Senate Bill S7052). This new law amends Civil Practice Law and Rules (CPLR) Section 3101(f) to require that within sixty (60) days of serving an answer, all defendants must provide the plaintiff with proof of existence and the contents of any insurance agreement under which any person or entity may be liable to satisfy part or all of a judgment. It takes effect immediately, applies to all pending actions, and places an increased burden on insurance carriers and their defense counsel to provide additional policy materials. Compliance is required and penalties for non-disclosure can be expected.
In essence, this act requires that “all parties provide notice and proof of the existence and contents of any insurance agreement, including coverage amounts, under which any person or entity may be liable to satisfy part or all of a judgment within sixty days of serving an answer in an action.” The disclosure obligation has been broadened well beyond policy limits and coverage forms and must now include:
- A complete copy of any applicable insurance policy
- The contact information for all assigned claims adjusters
- The amounts available under the policy
- A detailed list of all lawsuits that have reduced or may reduce or erode the amount of available coverage
- The amount of any attorneys’ fees that have eroded the face value of the policy along with contact information for all law firms that received such payments
- The insurance application
This information must be provided within 60 days of the filing of the defendant’s answer. Notably, information concerning the insurance agreement is still not admissible as evidence at trial.
Comment: According to the sponsor memo, the legislative purpose is to require defendants to provide plaintiffs with early and complete information about any insurance agreement through which a judgment could be satisfied and it appears to be a solution to an alleged delayed disclosure problem that prejudiced plaintiffs. While disclosure of policy limits and the amount of remaining coverage is certainly relevant, this act goes far beyond. How disclosure of an insurance application, which may contain an assortment of details regarding a defendant’s assets, holdings, and financial health is relevant when insurance is in place remains an open question. Further, the prior thought that asset discovery is irrelevant before judgment is entered now seems to be history.
The policy application and other newly discoverable materials may contain information that the insured will need to address during the course of discovery, including issues relating to prior claims of negligence and ownership of other properties. In addition to the more robust disclosure burden, discovery motion practice regarding the contents of these policy documents is sure to increase.
Until the rule is reduced in scope, however, which we expect may occur in the future, an insurance carrier would be well advised to start compiling the policy documents, application and claim history before defense counsel is retained so it can be timely exchanged.