GVK'S Petition is Partially Successful: Comprehensive Insurance Disclosure Act is Signed Subject to Modification Agreement

By William Parra and Corey Reichardt

Source: Gallo Vitucci Klar LLP

Governor Hochul signed the Comprehensive Insurance Disclosure Act ("CIDA") into law on December 31, 2021. However, she did so subject to a "signing memo" stating that she agreed with the intent of the bill but had reached an agreement with the Legislature to ensure that the scope of the disclosure it required was "properly tailored for the intended purpose," i.e., to ensure litigants were adequately notified about of the potential limits of insurance coverage.

There are two important points to consider. First, the CIDA is presently the law and effective immediately. Defendants' compliance in pending actions is presently due in 60 days (March 1st), and within 60 days of answering in new actions. However, the Governor's agreement with the Legislature refers to chapter amendments modifying the CIDA which must be agreed to and passed by the Legislature and Governor. We understand that proposed amendments have already been drafted that address many concerns raised in our petition against the CIDA's present form. When passed, the proposed changes should significantly lessen the time, expense and burden to defendants and their insurers, in complying with the CIDA.

Since the CIDA is presently law, the proposed amendments have not been agreed to or passed, and it is unclear when they may be, we summarize the CIDA's requirements due by March 1st, as well as the proposed modifications. The CIDA significantly expands defendants and their insurers' obligations, amending CPLR §3101(f) to require the following additional disclosures:

• Complete copies of all primary and excess policies or other agreements (SIRs, captives, etc.) that may cover any part of a judgment, including their related policy applications, which were previously expressly exempt from disclosure under CPLR §3101(f);
• Identification of any other lawsuit(s) that have or may deplete the limits of such policies, including their caption, filing date, identity and contact information for each party's attorneys, claims adjusters, TPAs and claims adjusters the TPAs report to;
• The amount of legal fees/expenses in other suits that have eroded such policy limits, including identity of the receiving attorneys/law firms;
• The present/remaining amount of such policies' coverage limits;
• Defendants have an "ongoing obligation," through the course of litigation and for 60 days after any settlement, judgment or appeal, "to make reasonable efforts to ensure" this information remains "accurate and complete," and to provide updated information within 30 days of when defendants or their attorneys become aware of it; and
• Pursuant to newly created CPLR §3122(b), defendants and their attorneys must each certify that all required disclosures are accurate and that they will take reasonable efforts to ensure that they remain accurate, as described above.

Compliance with these directives will significantly increase the time and expense required of defendants, their attorneys and adjusters alike. There is understandably confusion and concern over whether to immediately begin complying with them in pending matters or wait and see whether less onerous changes will be enacted in time to render the present requirements moot.

The most significant proposed amendments to the CIDA, include:

• Deleting the CIDA's retroactive effect, limiting its application to actions commenced after the amendments' effective date;
• Increasing the disclosure deadline in new actions from 60 to 90 days;
• Deleting the obligation to disclose policies and all other suit/attorney/adjuster information in other actions that have or may erode policy limits;
• Deleting the policy application disclosure requirement; and
• Limiting the "ongoing [disclosure] obligation" to require reasonable efforts to provide accurate information initially, at the note of issue filing, and when engaging in court-conducted settlement negotiations, mediations or at trial.