Foley Hoag LLP, on behalf of United Policyholders, intervened at the U.S. Court of Appeals for the First Circuit by filing an amicus brief in the appeal known as President and Fellows of Harvard College v. Zurich American Insurance Company.

The brief asked the First Circuit to overturn Judge Allison Burroughs' District Court ruling issued on November 2, 2022. In that ruling, Judge Burroughs granted Zurich American Insurance Company's motion for summary judgment that Zurich has no obligation to pay for any of Harvard's defense costs in connection with the widely-publicized lawsuit alleging that Harvard's race-conscious admission policies are unlawful. The District Court held that Harvard forfeited its right to recover under the $15 million excess insurance policy issued by Zurich as a consequence of Harvard's alleged failure to provide formal written notice of the suit to Zurich within 90 days after the end of the policy period, even though Zurich allegedly had actual notice of the suit during the policy period.

Harvard is now appealing that ruling in the First Circuit. The brief argued that Harvard's appeal should be granted, and that Judge Burroughs' ruling upholding Zurich's disclaimer of coverage should be overturned because it misconstrues the relevant policy wording and would impose an unreasonable forfeiture of coverage as a consequence for a non-material breach of a policy condition (even assuming there was a breach). The brief goes on to state that granting Harvard's appeal would protect policyholders and small businesses against future attempts by insurers to disclaim coverage based on mere technical breaches of policy conditions.

According to the brief, "The District Court's ruling, if not reversed, will lead to more denials of coverage based on technicalities, will give rise to more risk and uncertainty for insureds, and will create perverse incentives for insurers not to follow up with insureds when they are on inquiry notice of a claim."

United Policyholders is a non-profit organization whose mission is to be a trustworthy and useful information resource and an effective voice for consumers of all types of insurance in all fifty states.

The Foley Hoag attorneys who represented amici are Martin Pentz, Creighton Page and Neil Austin.