On February 25, 2022, Governor Kathy Hochul passed into law Senate Bill 7882 scaling back the Act’s most stringent requirements including, among other things, eliminating the disclosure requirements for defendants in litigation pending prior to the Act’s passage, extending the time to make disclosures from sixty days to ninety days after service of an answer, and removing from disclosures information about unrelated litigation and attorneys’ fees expended.
Also removed from mandatory disclosures is the requirement to provide the contact information of all persons and third party administrators involved in the claim. Now only the contact information (name and e-mail address) of the assigned individual responsible for adjusting the claim is required to be disclosed.
In an effort to be less burdensome, the amended Act now permits defendants to prove the existence and contents of any applicable insurance in the form of the insurance policy in place at the time of the loss, or if agreed by the plaintiff or party in writing, in the form of the policy’s declaration page. Previously, the Act required disclosure of even insurance applications. However, a plaintiff or party may revoke their agreement to accept a declaration page in lieu of the full copy of any insurance policy at any time, and the initial agreement to accept the declaration page does not waive the ability to receive any other information required to be provided under the Act. Upon notice of such revocation, any applicable defendant must provide a full copy of the insurance policy in place at the time of the loss.
The amendment also puts into place certain protections for defendants and insurers, namely, that disclosure of policy limits does not constitute an admission that any alleged injury or damage is covered by the policy.
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On December 31, 2021, New York State Governor Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act. The Act amends CPLR §3101(f) of which addresses the scope of disclosures on the contents of insurance agreements. The Act calls for defendants to provide complete insurance information for any insurance agreement through which a judgment could be satisfied within 60 days after serving its answer. Information and documentation to be provided include:
- all primary, excess and umbrella policies
- complete copies of insurance contracts, including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements, application for insurance etc.
- contact information, including telephone number and e-mail address, of any person or persons responsible for adjusting the claim. Contact information for third-party administrators and persons within insuring entity to whom the third-party administrator is required to report is also required
- the amounts available under any policy, contract or agreement to satisfy a judgment or to reimburse for payments made to satisfy the judgment
- disclosure of any lawsuits that have reduced or eroded or may reduce or erode the amounts available to satisfy or reimburse a judgment, including: the caption of any such lawsuit, the date the lawsuit was filed, and the identity and contact information of the attorneys for all represented parties therein
- disclosure of the amount, if any, of any payment of attorney’s fees that have eroded or reduced the value of the policy, along with the name and address of any attorney who received such payments
The Act’s amended version of §3101(f) also mandates an ongoing obligation to make reasonable efforts to ensure that the information disclosed remains accurate and complete. Additionally, defendants are required to provide updated information within thirty days of receiving information rendering the prior disclosure inaccurate or incomplete. This obligation exists during the entire pendency of the litigation and for sixty days after any settlement or entry of final judgment in the case inclusive of all appeals. However, disclosure of information related to insuring agreements are not by reason of disclosure admissible in evidence at trial.
The Act also adds a new section to CPLR §3122, a New York statute on the objections to disclosure, inspection or examination and compliance with discovery. CPLR §3122(b) now requires that information disclosed pursuant to §3101(f) be sworn in the form of an affidavit or affirmation by the defendant and defendant’s counsel that the information is accurate and complete, and that reasonable efforts have been and will be undertaken to ensure its accuracy and completeness.
The Act takes effect immediately and applies to all pending actions. Any information required that was not previously disclosed are now to be provided within sixty days from the Act’s effective date (March 1, 2022).
UPDATE: On January 18, 2022, Senate Bill 7822 was introduced which, if passed, would scale back the Act’s most stringent requirements including, among other things, eliminating the disclosure requirements for defendants in litigation pending prior to December 31, 2021, extending the time to make disclosures from sixty days to ninety days after service of an answer, and eliminating from disclosures information about unrelated litigation and attorneys’ fees expended. The Senate Bill remains pending in the legislature.