{"id":722,"date":"2013-12-03T15:30:34","date_gmt":"2013-12-03T15:30:34","guid":{"rendered":"http:\/\/www.joneslemongraham.com\/blog\/?p=722"},"modified":"2021-12-21T20:04:40","modified_gmt":"2021-12-21T20:04:40","slug":"claim-under-title-companys-professional-liability-policy-first-made-prior-to-policy-period","status":"publish","type":"post","link":"https:\/\/www.joneslemongraham.com\/blog\/claim-under-title-companys-professional-liability-policy-first-made-prior-to-policy-period\/","title":{"rendered":"Claim under title company’s professional liability policy first made prior to policy period"},"content":{"rendered":"

by Christopher Graham<\/a> and Joseph Kelly<\/a><\/p>\n

\"Texas\"<\/a><\/p>\n

When is a Claim first made within the meaning of a professional liability policy? This is a recurring issue under claims-made policies. And that was the issue in Regency Title Company, LLC v. Westchester Fire Insurance Company, et al<\/em>, Case No. 4:11-cv-390 (E.D. Tex. Nov. 15, 2013)<\/a>.<\/p>\n

This time the controversy involved whether a written demand sent to a third party rather than to the insured, albeit addressing the insured’s alleged misconduct, qualified as a Claim made against the insured. If it did qualify as a Claim, then the insured would have no coverage — because the Claim would have been made before rather than within the policy period, as required for coverage.<\/p>\n

Westchester denied coverage for a July 29, 2010 suit against Regency for breach of contract, negligence, conversion and breach of fiduciary duty. Regency then sued Westchester Fire for a declaratory judgment and breach of contract.<\/p>\n

Claimant sued Regency within the September 1, 2009-2010 policy period. But Westchester argued that the “Claim” was first made before the policy period, on September 30, 2008 — because claimant filed a complaint on that date with the Texas Department of Insurance alleging the same facts as in the July 29, 2010 suit.<\/p>\n

The policy defined “Claim” as including:<\/p>\n

\n

“a written demand against any Insured for monetary or non-monetary damages;”<\/p>\n

and<\/p>\n

“a civil, administrative, or regulatory investigation against any Insured commenced by the filing of a notice of charges, investigative order, or similar document.”<\/p>\n<\/blockquote>\n

Written demand<\/em><\/strong><\/p>\n

Regency argued claimant made no written demand before filing suit during the September 1, 2009-2010 policy period; that claimant’s pre-policy period complaint with the Texas Insurance Department wasn’t a “demand against an insured” because it was sent to a third party.<\/p>\n

Westchester argued the Insurance Department complaint was a written demand.<\/p>\n

The Court sided with Westchester: Claim wasn’t defined as “demand to an insured”, “demand sent to insured”, or “demand on an insured,” but rather as a “demand against<\/em> any insured.” Claimant’s Insurance Department complaint was a written demand against an insured, namely, Regency — whether sent to Regency or not.<\/p>\n

Civil, Administrative, or Regulatory Investigation<\/em><\/strong><\/p>\n

Regency argued the Insurance Department didn’t undertake any an “investigation;” the Department characterized its actions as “evaluation” in a letter to Regency; and it did very little, namely review the claimant’s complaint and Regency’s response and suggest claimant seek a private remedy. The Department, moreover, found no violations of Texas insurance laws and wasn’t taking action against Regency.<\/p>\n

The Court disagreed. The Department referred to its actions as an “investigation” in certain correspondence. And “a cursory investigation is still an investigation within the plain meaning of the word.”<\/p>\n","protected":false},"excerpt":{"rendered":"

by Christopher Graham and Joseph Kelly When is a Claim first made within the meaning of a professional liability policy? This is a recurring issue under claims-made policies. And that was the issue in Regency Title Company, LLC v. Westchester Fire Insurance Company, et al, Case No. 4:11-cv-390 (E.D. Tex. Nov. 15, 2013). This time […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"_links":{"self":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/722"}],"collection":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/comments?post=722"}],"version-history":[{"count":8,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/722\/revisions"}],"predecessor-version":[{"id":3170,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/posts\/722\/revisions\/3170"}],"wp:attachment":[{"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/media?parent=722"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/categories?post=722"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.joneslemongraham.com\/blog\/wp-json\/wp\/v2\/tags?post=722"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}