News

Amendments to New York Comprehensive Insurance Disclosure Act Partly Loosen Disclosure Mandate

Following the enactment of New York's Comprehensive Insurance Disclosure Act ("CIDA") in January (see "New Legislation Requires Insurance Disclosure, Amends Hearsay Rule", Newswire, January 4, 2022), lawmakers acted quickly to amend the new statute. On February 24, 2022, Governor Kathy Hochul signed the legislation enacting several changes to the original law. The new amendments significantly lessen the burden on insurers and insureds, but the basic disclosure duties created by CIDA remain in place.

As amended, New York CPLR 3101(f) now requires Defendants to disclose within 90 days of answering a pleading all sources of insurance coverage that could satisfy a judgment or settlement (specifically, any agreement "under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment"). The Amendments make the following changes:

1. CIDA no longer applies retroactively to pending cases but only to lawsuits filed after the effective date, February 24, 2022.
2. The Amended Act makes the deadline for disclosures of policies or declarations pages 90 days after answer is filed. If a declarations page is accepted, a party can still request policies.
3. Disclosure of contact information for person adjusting the claim is limited to the name and email address.
4. The producing party no long has to disclose of the name of the person to whom TPAs are reporting.
5. Disclosure of limits only includes the total limits available under the policy, after taking into account policy erosion.
6. Parties are no longer required to disclose lawsuits and contacts for those lawsuits that may erode the limits of a policy or amounts of attorney fees that have eroded limits.
8. Continuing obligations to make disclosures have been refined, and CIDA now requires updating disclosures at the filing of the note of issue, entering into negotiations, or mediation.
9. Parties are not required to produce applications for insurance.
11. CIDA no longer applies to motor vehicle PIP lawsuits.

With these amendments, Defendants, Third-party Defendants and Counterclaim Defendants still must disclose insurance information that includes "proof of the existence and contents of any insurance agreement in the form of a copy of the insurance policy in place at the time of the loss"; except, if the plaintiff or other party agrees in writing, the disclosure can be "in the form of a declaration page, under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment." Providing the declaration page will be preferable because if a complete copy of the insurance policy is provided, it must include "declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions".

Agreeing to accept just the declaration page will not be deemed a waiver of the right to receive other information, and the agreement can be revoked later.

The Defendant still must disclose the "total limits" available under the policy, meaning "the actual funds, after taking into account erosion and any other offsets, that can be used to satisfy a judgment ... or to reimburse for payments made to satisfy the judgment". A protective clause clarifies that, "[d]isclosure of policy limits ... shall not constitute an admission that an alleged injury or damage is covered by the policy."

Parties must still identify the adjuster responsible for the claim with its insurance disclosures and give the person's email address.

Parties, and their counsel, must also certify the accuracy of the disclosures by an Affidavit or Affirmation (i.e., under penalties of perjury).

For more information on how these new provisions will apply, contact Glenn A. Jacobson (gjacobson@agfjlaw.com), Steven Disiervi (sdisiervi@agfjlaw.com) or Thomas Maeglin (tmaeglin@agfjlaw.com).