Harvard’s Claim Rejected for Untimely Notice
Harvard College's claim for excess coverage was properly denied for failure to provide timely notice on a claims-made policy. President and Fellows of Harvard College v. Zurich Am. Ins. Co., 2023 U.S. App. LEXIS 20715 (1st Cir. Aug. 9, 2023).
Harvard had a one year liability policy with National Union Fire Insurance Company of Pittsburgh, Pennsylvania. The claims-made policy had lmits up to $25,000,000. The policy required prompt notice of any claim filed against Harvard. In addition, Harvard also purchased an excess policy from Zurich to insure against an additional $15,000,000 should a claim exhaust the National Union coverage. The Zurich policy required notice "in the same matter required by the terms fo the [National Union] policy." Under both policies, therefore, a claim had to be reported within ninety days of the end of the policy period. Both policies had policy periods ending on November 1, 2015. Therefore, any claim had to be reported no later than January 30, 2016.
On November 17, 2014, Harvard was sued by students for violating Title VI of the Civil Rights Act of 1964. Harvard gave notice to National Union and thereby secured coverage under hte policy. Harvard neglected, however, to notify Zurich until May 23, 2017 – well beyond the excess policy's ninety day notificaiton window. Consequently, Zurich denied coverage for failure to provide timely notice. Harvard sued. The district corut granted summary judgment to Zurich.
On appeal, the First Circuit noted that under Massachusetts law, notice provisions of claims-made policies were enforced even if the insurer was not prejudiced by the late notice. Therefore, Zurich had every right to deny coverage.
Harvard argued for the first time on appeal that the notice requirement was ambiguous and further discovery might show Zurich had notice through a newspaper or other mediat outlet. The argument was rejected, however, because it was not raised below.
