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'Prejudice'
It is fairly well established in many courts across the United States that “late notice” of a claim under an occurrence-based commercial general liability (“CGL”) policy presents a problem for insureds only when it “actually” and “substantially prejudices” an insurer. Many courts also have held that insurers that seek to rely on a late notice defense may do so only if they themselves can prove the “actual” and “substantial prejudice” they suffered. In light of that standard, insurers appear to face high hurdles if they rely on notice issues to avoid coverage. At the very least, it seems that the question of prejudice is highly factual and thus should be preserved for a jury to decide.
Insurers, however, often seek to avoid jury consideration of the issue. Instead, these insurers file motions for summary judgment on the issues of late notice and substantial prejudice. In their motions, the insurers argue that not only was an insured's notice untimely, but also that the court can rule, as a matter of law, without any consideration of the facts, that the prejudice was “actual” and “substantial.” Courts should not take the bait. The late notice defense is riddled with factual issues: 1) Was the notice in fact “late”? 2) Did the insurer suffer prejudice? 3) Was that prejudice “actual” and “substantial”? Thus, by its nature, the late notice issue in the vast majority of cases should go to the jury. Courts should reject insurer efforts to have the issue decided as a matter of law on summary judgment.
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