New York, N.Y. (January 18, 2022) - Following up on our recent alerts regarding the New York legislature's newest insurance disclosure requirements under CPLR 3101(f) (available here and here), the amended text of Senate Bill S7882 has now passed committee and is waiting for the floor calendar before being presented to the Senate and Assembly. If passed and then signed by the Governor, the amended bill would differ from the prior version as follows:
- The amendments to the statute are only retroactive to December 31, 2021 and would only apply to prospective cases received after that date.
- For those cases, the defendants would have 90 days (rather than 60 days per the prior version) to provide the required disclosure of insurance policies and accompanying information.
- The defendant has the option to submit either the entire policy or the declaration page.
- However, the plaintiff would be permitted to request a complete copy of the policy at any time.
- Either the policy or declaration page must set forth: "all primary, excess and umbrella policies...insofar as such documents relate to the claim being litigated."
- Defendants must provide the adjuster's name and email address.
- Defendants must disclose the "total limits available" under the policy, defined as "the actual funds, after taking into account erosion and any other offsets, that can be used to satisfy a judgment described in this subdivision or to reimburse for payments made to satisfy the judgment."
- Defendants must engage in reasonable efforts throughout the litigation to ensure the insurance disclosure remains accurate at certain stages of the proceeding, such as "at the filing of the note of issue, when entering into any formal settlement negotiations conducted or supervised by the court, at a voluntary mediation, and when the case is called for trial, and for 60 days after any settlement or entry of final judgment in the case inclusive of all appeals."
- The amendments retain the dual certification requirement of both the defendant and defendant's counsel under new CPLR §3122-b.
- The amendments exclude PIP / no-fault cases from these disclosure requirements.
- The amendments would still exclude disclosure of the policy and its limits from being an admission at the time of trial.
- The amended bill would not require disclosure of the application for insurance, and the application is not considered part of the policy.
Lewis Brisbois' attorneys are closely monitoring this situation and will provide regular updates as this important legislation makes its way through the legislature. These proposed changes would be beneficial and we hope they are passed by the legislature soon. To schedule a training session on this law for your claims department, click here or contact any of the attorneys listed below. We will schedule a webinar to provide further updates and tips for compliance after the statute has been amended with the proposed changes.
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