N.J. Court Upholds Claims-Made Policy Where Insured Refused ‘Lookback’

January 17, 2006

In what lawyers say is a precedent-setting decision, a New Jersey court has ruled that a claims-made insurance policy that did not include retroactive coverage does not violate public policy and is enforceable.

An insurance company had offered a home inspector retroactive coverage, but the inspector had declined it when he purchased the insurance policy. The inspector later sued the insurance company, claiming that a liability policy without retroactive coverage was illegal and violated New Jersey public policy.

Representing the insurance company, attorneys from Traub Eglin Lieberman Straus LLP demonstrated that the insurance company provided many written opportunities, in easy-to-understand language, for the inspector to purchase the retroactive coverage; however, each time the inspector had declined the coverage.

Given the facts of the case, The Superior Court of New Jersey in Essex County ruled that the policy did not violate New Jersey public policy and was perfectly legal.

The case arose when theinsured inspection company was sued for negligence arising from a home inspection performed in 1999. The inspection company sought coverage under its liability policy, but was denied coverage because the retroactive date of the policy was the same date that the policy began (meaning there was no retroactive coverage for prior acts).

After being denied coverage, the inspection company subsequently filed suit against the insurance company, claiming that the lack of a retroactive “lookback” period was illegal and violated New Jersey’s public policy.

Attorneys Jonathan Reed and Aileen Droughton represented the insurer in the case, arguing that the insured had been offered the choice of an extended “lookback” period in plain language. However, the inspection company refused the extended coverage for economic reasons. All of the applications and renewal forms made clear reference to the retroactive date. They also pointed to the home inspector’s written request that said, in effect, that the inspector did not wish to pay an additional premium for coverage for acts occurring before the beginning of the policy.

In a clear victory for companies issuing claims-made policies, the court agreed with the insurer’s arguments, ruling that the insurance company’s New Jersey Notice of Election of Retroactive Coverage Form was clear and “straightforward.” The court opined that, when faced with a choice between the two policies, the insured knowingly opted not to purchase retroactive coverage prior to the date of inception.

The case involved was Caine, et al. v. Dorval, et al. and R.K.M. Inspection Services, Inc. v. Evanston Insurance Company, et al. (New Jersey Superior Court, Law Division, Essex County, docket number ESX-L-9485-02).

Source: Traub Eglin Lieberman Straus LLP

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