New York law requires that defendants to a lawsuit disclose insurance-related information. On December 31, 2021, New York Governor Kathy Hochul signed the Comprehensive Insurance Disclosure Act (the “Act”) into law, amending New York Civil Practice Law and Rules (“CPLR”) §3101(f) to expand the scope of insurance-related disclosure requirements in pending civil lawsuits. The aim of the Act is to ensure full disclosure of insurance information during litigation, including 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.
From day one, however, the new law faced backlash from the insurance industry, which considered the new disclosure requirements to be unduly burdensome on both insurers and insureds. Governor Hochul appeared to agree, such that she identified several possible changes before signing the legislation into law. Within two months, on February 24, 2022, Governor Hochul signed into law amendments to modify the most onerous requirements in the Act.
Under CPLR 3101(f)(1), as amended, the production of a copy of the insurance policy in place at the time of the loss that may satisfy all or part of a judgment is required, unless a party agrees, in writing, to accept a declarations page. A party that agrees to accept a declarations page in lieu of a policy may revoke such agreement at any time, and demand the production of the full copy of the insurance policy in place at the time of the loss. The copy of the insurance policy or the declarations page produced must include:
- All primary, excess and umbrella policies that relate to the claim being litigated. CPLR §3101(f)(1)(i).
- Full and complete insurance agreements, “including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions.” CPLR §3101(f)(1)(iii).
- “[T]he contact information, including the name and e-mail address, of an assigned individual responsible for adjusting the claim at issue.” CPLR §3101(f)(1)(iii).
- The total limits available to satisfy a judgment or to reimburse for payments made to satisfy the judgment. CPLR §3101(f)(1)(iv).
The Act sets time limits to effect the mandatory disclosures. The automatic insurance-related disclosure applies to lawsuits filed on or after December 31, 2021. The first disclosure must be made within 90 days of filing an answer and continue throughout the litigation. CPLR §3101(f)(1). At certain specific points throughout the litigation, the disclosing party must update information disclosed. Additionally, the parties are required to maintain the accurate and complete insurance information for 60 days after any settlement or entry of final judgment, inclusive of all appeals. CPLR §3101(f)(2).
The Act, as amended, also adds a certification requirement for insurance-related disclosure. CPLR §3122-b mandates that the parties and counsel certify the accuracy and completeness of the documents and information disclosed, and that reasonable efforts have been taken and will be taken to assure that the information remains accurate and complete.
Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and of the Duane Morris Cuba Business Group. Mr. Aquino focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.