It's not too late for Rapture Insurance

You can buy it on ebay here. Act now, because by 6:05 tonight the Rapture will be a known loss and no longer insurable.

Here's a great blog post on other Rapture-related insurance issues.

First Circuit distinguishes policy condition regarding knowledge of existing claim from known loss doctrine

In my last post I discussed the recent First Circuit decision in Employers Reinsurance Corp. v. Globe Newspaper Co, Inc., which held that a likely loss is not a known loss.

Although the court found that coverage for the Globe was not barred by the known loss doctrine, it went on to state in dicta that coverage may be barred by a condition of the prior acts endorsement of the policy. That condition required that the Globe not have had, prior to the new policy, "notice or knowledge" of the claim in question or of "circumstances that would give rise to such claim." The court distinguished that condition from the known loss doctrine, stating that the condition "bars insurance not for a known loss but merely where there is notice on the insured's part, not conveyed to the insurer, of 'circumstances which would give rise to such claim.'"

First Circuit holds that "likely loss" is not a "known loss"

In Employers Reinsurance Corp. v. Globe Newspaper Co., Inc., the United States Court of Appeals for the First Circuit held last month that the known loss doctrine, which I discussed here, here, and here, does not bar coverage for a libel claim against a newspaper that knew a loss was "likely" at the time that it purchased insurance, but not that the loss was "substantially certain."

The Boston Globe ran an article in March 1995 which wrongly stated that Dr. Ayash had countersigned a medicine dosage order that resulted in two patients receiving overdoses. An attorney contacted the Globe on behalf of Dr. Ayash. The Globe printed a correction. Dr. Ayash did not withdraw her demand for damages.

That was the state of affairs when the Globe applied for insurance. In its insurance application the Globe listed past and present litigation but did not list the dispute with Dr. Ayash. The Globe stated in its application that it received many threats from people seeking to have the Globe print more favorable information about them, and that it was difficult to separate the inconsequential threats from the serious ones.

Dr. Ayash subsequently sued the Globe and was awarded more that $2 million in damages.

The United States Court of Appeals held that coverage for the Globe was not barred by the known loss doctrine, stating, "The loss here may have been likely, but it was not substantially certain or known by the Globe to be so when the policy was obtained."

How to read an insurance policy: the known loss doctrine, part 3

In previous posts I have discussed the known loss doctrine here and here. The insuring agreement typically defines when a loss is deemed to have been known to have occurred as the earliest of when:


--An insured reports a loss to any insurer; or


--An insured receives a written or verbal demand or claim; or

--An insured becomes aware by any other means that a loss has occurred or has begun to occur.


Those definitions are important not only for the known loss doctrine, but also because insureds are required to report losses to their insurers immediately ("as soon as practicable") and their failure to do so could result in denial of coverage for the loss. (I will discuss in a future post when an insurer can get away with denying coverage as a reult of late notice).


Insureds often fear to report claims because the mere reporting of a claim may result in their premiums going up. Although I am not an expert in this subject (and any of you who are should feel free to chime in here), my understanding is that reporting a single potential claim that never materializes into an actual claim typically does not affect premiums. On the other hand, failing to report a potential claim that does materialize could substantially affect your right to insurance coverage for that claim.


The lesson: Report to your insurer any claim as soon as you learn of it.

How to read an insurance policy: the known loss doctrine, part 2

I am making time to post again at the inspiration of Michael Aylward, a partner at Morrison Mahoney specializing in insurance coverage issues. I met Michael years ago when we represented codefendants in a rather silly copyright violation case. Since then I have relied on his excellent articles on allocation issues; been riveted (no, I'm not kidding) by his talks at seminars on insurance coverage; and imposed upon him for advice both legal and practical which he has always graciously given.


In my last post I discussed the known loss doctrine. One question that frequently comes up with respect to that doctrine is whether there is coverage when the insured knew of the facts that created tort liability before the policy period, but did not subjectively know that such facts could actually lead to liability.


The United States Court of Appeals for the First Circuit explored this issue under Massachusetts law in United States Liab. Ins. Co. v. Selman, 70 F.3d 684 (1995). In that case the insured was a landlord who was informed prior to the policy period that his apartment had lead paint in it and his tenant's child had lead paint poisoning. The court held that the lead paint injury was not a known loss because discovery had shown that the insured had not made a subjective connection between the lead paint in his building and the underlying plaintiff's future medical risks.

In my next post I'll discuss how the known loss doctrine should affect an insured's decision about reporting to its insurer a potential claim.

How to read an insurance policy: the known loss doctrine, part 1

The insuring agreement often incorporates the "known loss doctrine," generally with words to the effect that the policy covers "bodily injury or property damage that was not, prior to the policy period, known to have occurred by any insured."


The known loss doctrine is one of the most basic concepts of insurance coverage. Insurance is supposed to be a gamble: You pay $1.00 in premiums now as a gamble against the risk that without the insurance you would have to pay $10.00 in loss (or attorney's fees) in six months. You can play the odds by negotiating premiums against limits. If the premiums become too high vis a vis the chances of the insured event occurring (many people--but not me--say this is the case with disability insurance) or the maximum payout is too low (generally, dental insurance), you choose not to purchase the insurance.


The whole system falls apart if you purchase insurance for a loss you already know has occurred. In law school parlance, the insurance is no longer against a "fortuitous" event.


Litigation around the known loss doctrine predictably concerns what it means to be "known": who knew, what they knew, and when they knew it. The issue frequently comes up in environmental contamination litigation: An insured may argue that although there was some evidence of contamination at the time the policy began, the insured did not know the extent of the contamination. The Supreme Judicial Court of Massachusetts has stated in this context that the only requirement for the loss to be exempt from coverage is that "the insured has evidence of a probable loss when it purchases the policy." SCA Services, Inc. v. Transportation Ins. Co., 419 Mass. 528, 533 (1995).


Another common context for the known loss doctrine is construction defect litigation. Arguments frequently arise about punch lists demonstrating problems such as lack of caulking or other insufficiencies in the building envelope. Insurers argue that those punch lists show that the insured contractor was aware of probable water infiltration into the building, while the insureds argue that the punch list only demonstrated that the contractor had work to do before the job was finished.


In a future post I will discuss how the known loss doctrine applies where the insured knew of the occurrence but did not know that the occurrence could lead to liability.