Just before New Year’s, the Governor gifted litigators, practitioners and the entire insurance industry with a signed a bill that greatly expands current disclosure requirements by revising CPLR § 3101(f) and adding a new § 3122-b. This change in statute was effectuated through the enactment of the New York State Comprehensive Insurance Disclosure Act (“Act”). The Act is now in effect even though amendments have been proposed and are being considered (see below). Currently, the Act requires the following disclosure within 60 days of serving an answer:
Complete copy of all primary, excess, and umbrella policies including insurance applications
The contact information (including phone number and email address) of insurance representatives/adjusters and third-party administrator representatives
The policy limits or residual limits if applicable
Identification of all lawsuits that have reduced or eroded, or that may reduce or erode the limits, including the caption, date of filing, and identity/contact information of the parties; and
The amount, if any, of attorney fees that have reduced/eroded the limits, and the identity/address of any attorney receiving such fees
Defendant and counsel must certify the information provided pursuant to 3101(f) is accurate and complete, and that reasonable efforts to ensure accuracy and completeness have been and will be taken on an ongoing basis.
There is a timing element to the Act. Currently Defendants have an ongoing obligation to provide updated information within 30 days of receiving new or different information. The obligation exists and continues throughout the litigation and for 60 days after settlement or entry of final judgment in the case inclusive of all appeals.
Proposed Amendments
Numerous amendments have been proposed, and the Governor redlined many offensive provisions. The changes must still be voted on and the revised bill signed into law, however the revised stature would provide the following:
Disclosure of insurance information 90 days after answering the Complaint;
No requirement to provide the entire insurance policy if plaintiff
agrees to accept the Declaration page;
Policy application is not required to be disclosed;
Disclosure of policy limits that covers the claim being litigated;
Limits disclosure of the assigned claims adjuster to name only;
No requirement for TPAs to disclose the name of the person to whom they
are reporting;
Eliminates the ongoing nature of the disclosure. This means the insurance
information is provided after service of the answer, on filing a note of issue, for court conferences, and for court supervised settlement negotiations or mediation;
Applies to lawsuits filed after 12/31/2021 effective date, and will not retroactively apply to all pending cases;
Total limits available under the policy (after taking into account policy erosion);
Eliminates disclosure of lawsuits and contacts for those lawsuits that may erode the policy;
Eliminates attorney fee disclosure;
Dual certifications are still required;
Does not apply to PIP lawsuits; and
Adds language that the disclosure of insurance information that would not be construed as an admission of coverage.
Presently, the amendments have not been accepted. While clients and insurers should anticipate having to comply with the new disclosure requirements, we expect that the legislation will be altered in some manner and very shortly.
While the Act appears overwhelming at first glance, it should not be interpreted or treated as a complete disgorgement of information. The disclosures are still subject to discovery objections and legal scrutiny. Confidentiality cannot be overlooked and all efforts should be made to preserve proprietary information.
If you have any questions or need guidance on navigating the new legislation, please contact Brian Biggie, bbiggie@gerberciano.com; Joanna M. Roberto, jroberto@gerberciano.com or Brendan Fitzpatrick bfitzpatrick@gerberciano.com
