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MD High Court: Prejudice Stemming from Late Notice Must Be Shown
Medical professionals frequently carry claims-made, not occurrence-type, insurance. With occurrence policies, injuries suffered at the hands of the insured are covered if they occur during the policy period. With a claims-made policy, the insured is entitled to defense and indemnification of a claim if the claim is lodged during the term of the policy, even if the injury complained of happened years before the policy went into effect. However, if the insured drops his claims-made insurance and is sued three years later, his insurer will disclaim liability even if the injury occurred during the term of the policy.
The terms of the policy will determine the period in which such notice of a claim having been made may be given to the insurer. If the policy is what is known as a “pure claims-made” policy, notice of the claim to the insurer must generally be given “as soon as practicable.” This can be during the policy period or, arguably, any time thereafter. The more common type of policy is of the type known as “claims-made and reported.” Under this type of policy, the insured must report a claim against it within certain time periods, such as “during the policy period” or “within 90 days of the end of the policy period.”
While these requirements may seem fairly straightforward, disputes concerning notice often arise between medical caregivers and their insurance carriers. One party may have a different idea of what constitutes notice “as soon as practicable.” Sometimes there is confusion because a policy states that it is a claims-made policy but, after further investigation into its terms, it turns out that it is a claims-made-and-reported policy.
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