Triggering Claims-Made Policies

Two recent cases consider the triggering of coverage under “claims-made” insurance policies: MWH International, Inc. v. Lumbermens Mutual Casualty Company, 2007 BCCA 164 and Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21.

In MWH International, Inc. v. Lumbermens Mutual Casualty Company, 2007 BCCA 164, the British Columbia Court of Appeal held that a “claims-made” professional liability insurance policy had not been triggered by the insured. The insured had given notice of an event from which it expected a claim could be made. Adopting a commercially sensible reading of the policy, the Court concluded that before the insurer’s defence obligations could be triggered, a third-party claim seeking damages must be made against the insured during the policy period.

The Supreme Court of Canada’s decision in Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21 predates MWH International. However, the B.C. Court of Appeal did not cite Jesuit Fathers in its reasons. Jesuit Fathers stands for the principle that under claims-made policies, during the policy period the injured third party must communicate an intention to the insured to hold the insured responsible for damages suffered. The insured’s speculation or investigations revealing that a future claim is likely is insufficient to trigger coverage.

Practice Tips

The following practice tips may be drawn from MWH International and Jesuit Fathers.

1. The threat of a future lawsuit is insufficient to trigger defence obligations under insurance policies. This general principle may be applicable to all liability policies, whether claims-made or occurrence-based.

2. In relation to claims-made policies, during the policy period the injured third party must communicate an intention to hold the insured responsible for damages suffered. The potential for a future claim based upon the insured’s own speculation or investigations does not trigger coverage. The communication must be made directly or indirectly by the insured.

3. Costs incurred by an insured before a claim seeking damages has been commenced may not be recovered from the insurer.

Discussion

(i) MWH International, Inc. v. Lumbermens Mutual Casualty Company, 2007 BCCA 164

In MWH International the insured’s coverage claim arose in the following context. The insured had performed certain work on a power-plant project. In April 2004, a major part of the structure of the project failed and was largely destroyed. The plant had to be shut down, with losses estimated at $50 million.

Two months after the project failed, the insured notified its insurer about the incident, in part, as follows: “Although no formal proceedings or formal claim has yet been advanced against [the Insured], [certain third parties] have intimated that a claim may well be made depending on the outcome of the current investigation into the cause of the failure . . .”. Subsequently, the insured asked the insurer to reimburse it for solicitors’ accounts relating to steps taken by the insured to protect its interests.

The insurer refused to pay the insured’s legal accounts, taking the position that it was not obligated to defend the insured unless and until a claim against the insured was actually made.

The Policy at issue contained the following standard “claims-made” insuring clause:

To pay on behalf of the INSURED all sums in excess of the retention amount stated in the Declarations which the INSURED shall become legally obligated to pay as DAMAGES as a result of CLAIMS first made against the INSURED and reported in writing to the Company during the POLICY PERIOD by reason of any act, error, or omission in PROFESSIONAL SERVICES rendered or that should have been rendered by or on behalf of the INSURED; provided always that such act, error, omission is committed during the POLICY PERIOD, or prior to the POLICY PERIOD and subsequent to the Retroactive Date stated in the Declarations

The Defence clause in the Policy required that “the [Insurer] shall defend any CLAIM against the INSURED seeking DAMAGES to which this insurance applies, even if any of the allegations are groundless, false, or fraudulent. . . .”

The Policy defined “CLAIM” as “a demand received by the INSURED for money or services, including the service of suit or institution of arbitration proceedings against the INSURED”; and “DAMAGES” as “a monetary judgment, award or settlement . . .”

The BCCA majority held (at para. 11) that “It is clear that, without a broader obligation than is found in [sections of] the policy as quoted, the Company could have had no obligation to defend based on the [insured’s June 2004 letter]. No CLAIM (a demand for money) against [the insured] seeking DAMAGES (a monetary judgment, award, or settlement) to which the insurance applies had been made. As the [insurer] says, there was nothing to defend.”

However, the insured cited an endorsement to the policy which purported to expand the definition of “CLAIM” to include “CIRCUMSTANCE” and that “CIRCUMSTANCE means an event reported during the Policy Period from which the insured reasonably expects that a claim could be made.”

The Court of Appeal noted that a “circumstance” could not be defended; only a third party claim seeking damages could be defended. The fact that “Claim” included “circumstance” did not mean that in every case throughout the Policy the “claim” was to be read as “circumstance”. As the Court held (para. 18): “. . . it stretches common usage to suggest that a circumstance or an event can be defended. It is claims against insureds that are defended. . . . it is not sensible to speak of settling a circumstance or an event.” And, further, “The endorsement modifies the definition of CLAIM to include CIRCUMSTANCE; it does not define it as a CIRCUMSTANCE.”

However, most notably, the Court simply looked to the literal wording of the defence clause in the Policy, which required that the insurer “defend any CLAIM against the INSURED seeking DAMAGES to which this insurance applies . . .” In June 2004, the third parties were not “seeking anything from MWH and certainly not a money judgment, award, or settlement to which the insurance applies.” (see para. 21). And, continuing, the Court observed:

. . . The most that could be said is that because of the CLAIM (i.e., the event) DAMAGES might be sought against [the Insured] that might be insured under the policy. There was no CLAIM against [the Insured] whereby DAMAGES were then being sought. There was at best only a CLAIM. It existed because of the event and the insured’s expectation of what might be sought against it.

. . . without a claim being made against [the Insured], there was no claim to consider in the context of the professional services coverage afforded by the policy.

The Court of Appeal then cited Supreme Court of Canada decisions in Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 S.C.R. 551, and Monenco Ltd. v. Commonwealth Insurance Co., [2001] 2 S.C.R. 699. In each case, the insurer involved was held to have no obligation to defend on the policy it had issued because the obligation was limited to defending claims to which the insurance applied, and on the pleadings no claim was made that could possibly require the insurer to indemnify the insured.

After reciting the principles derived from the Supreme Court of Canada’s “duty to defend” cases, the Court of Appeal concluded (at para. 25)

There are of course no pleadings here to be considered. Indeed, in June 2004 there was nothing but what the solicitors characterized as an “intimation” that a claim might be made against [the insured]. Despite this authority, [the insured] maintains pleadings are not essential to the assessment of an insurer’s obligation to defend, but whether that is so, there must at least be a claim the nature of which is such that if the claim were proven it would possibly fall within the terms of coverage. I am unable to see how it could be said that there existed in June 2004 a CLAIM against [the insured] seeking DAMAGES to which the insurance applies.

The Court of Appeal’s approach follows upon Supreme Court of Canada precedent on the scope of an insurer’s duty to defend. Furthermore, the approach adopted, as highlighted above, follows a commercially sensible reading of the policy.

While the Court of Appeal did not discuss the issue, it is necessary to clearly demark communications outlining possible future damages claims against an insured, and those which actually identify a claim seeking damages. The former communications are important to insurers in making underwriting decisions including whether to continue to insurer a policyholder in future. The latter actually trigger the insurer’s defence and indemnity obligations under the policy.

In MWH International the Court of Appeal did not discuss Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, which highlights this issue.

(ii) Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21

In Jesuit Fathers,the Jesuits were insured by a “claims made” policy issued by Guardian Insurance and covering the period 1988 to 1994. The insuring agreement provided as follows:

To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages, because of injury arising out of the rendering of, or failure to render professional services in the practice of the Insured’s profession, provided however, that coverage as provided herein shall apply only to claims which are first made against the Insured during the policy period as stated in the Declarations.

Thus, as in MWH International, coverage was only available for claims “first made against [the insured] during the policy period.”

The underlying facts in Jesuit Fathers are, in brief, as follows. Certain members of the Jesuit allegedly committed sexual assaults prior to the coverage period. During the period of cover, allegations of the abuse circulated in the community, a police and an internal Jesuit investigation ensued, and the Jesuits’ lawyer delivered notice to the Jesuits’ insurer (Guardian).

In his letter, the Jesuits’ lawyer identified the allegedly offending Jesuits, dates and locations of offending acts, nature of possible claims, and he named ten alleged victims including one Peter Cooper. Mr. Cooper sought to settle his case with the Jesuits. The other nine alleged victims were simply identified through the Jesuits’ internal investigations, and there was no indication of whether or not they would sue in future. The Supreme Court of Canada noted that the information provided by the Jesuits in their lawyer’s letter complied with notice requirements set out in the Policy.

After the policy expired in 1994, approximately 100 claims were made by alleged abuse victims. These claims involved allegations similar to those reported to Guardian by the Jesuits’ lawyer during the policy period. Guardian argued that there was no coverage as these claims were “first made” after the policy expired.

The Supreme Court of Canada explained that the Guardian policy included reporting obligations requiring the insured to report both occurrences and claims. The Court held that this did not mean that all occurrences were covered. Rather, it was necessary to consider whether the information provided during the coverage period constituted a “claim” for the purposes of the claims-made coverage.

Unlike the policy in MWH International, the Guardian policy did not define “claim”. However, LeBel J. held that the word “claim” considered in the context of the insuring agreement suggested that “. . . a claim must be actively made as opposed to merely being discovered. The Policy also distinguishes between a ‘circumstance or occurrence’ and a ‘claim’.”

The Supreme Court of Canada also considered the “common law doctrine” concerning claims requirements. In this regard, at para. 50, the Court set out the following passage from McLachlin J.’s reasons in Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252:

The authorities establish that as a general rule, for a “claim” to be made there must be some form of communication of a demand for compensation or other form of reparation by a third party upon the insured, or at least communication by the third party to the insured of a clear intention to hold the insured responsible for the damages in question. [Emphasis added]

From this passage, the Supreme Court of Canada in Jesuit Fathers held as follows (at para. 51):

In essence, a claim at common law requires a third party to communicate an intention to hold the insured responsible for damages. Naturally, the third party may communicate through a representative, whether a legal representative such as a lawyer or any other advocate such as a band leader, a friend or a counsellor. The key is that the representative be accurately communicating the intent of the claimant and that it be done with the claimant’s full knowledge and approval. . . .

The Supreme Court of Canada cited with approval from Andy Warhol Foundation for the Visual Arts Inc. v. Federal Insurance Co., 189 F.3d 208 (2nd Cir. 1999) for the following propositions: “for an assertion or notice to the insured to be a claim it must be made by the party whose rights allegedly have been violated.” And, further, “To constitute a claim within the meaning of an insurance contract, the assertion must be made by or on behalf of the party making the claim.” LeBel J. concluded that “The requirement that the claimant be the source of the claim is sensible. Since the claimants own the right to damages, their permission is required to further pursue the claim whether through negotiations or legal action.”

The Supreme Court then applied the above principles to the facts. In relation to Peter Cooper, the Court explained that Mr. Cooper had “. . . informed the Jesuits, through his legal counsel, that he had suffered injuries due to the lack of administrative supervision at the Spanish School and inquired about the possibility of a legal settlement. . . .” The Court found this sufficient to constitute a “claim under the Policy.” In particular, “. . . It communicated an intention [by Mr. Cooper] to hold the Jesuits responsible for his injuries. The claim was made prior to the expiry of the policy . . . and, therefore, Guardian’s duty to defend was engaged, as it acknowledges.”

The Court then considered the series of claims which were made following expiry of the policy, but discovered by the Jesuits and reported to Guardian during the Guardian policy period. During the period covered by the Policy, the Jesuits had gained knowledge of the circumstances which eventually gave rise to the claims through review of publication of a newspaper article in 1988, internal Jesuit investigations, and reports from Jesuit parishioners. Further, the Jesuits had reported these circumstances to Guardian.

However, the Supreme Court of Canada found this insufficient to qualify as claims made during the policy period:

Other than the case of Peter Cooper, the Jesuits were not aware of any other persons intending to hold them responsible for damages arising from the situation prevalent at the SpanishSchool until after the expiry of the Policy. Since the claimants did not communicate during the coverage period, either directly or indirectly, their intention to hold the Jesuits responsible for the damages they suffered, the duty to defend is not engaged.

Concerning the nine other victims named in the Jesuits’ lawyer’s letter delivered during the policy period, the Supreme Court of Canada held that the trial judge erred in finding that these constituted claims made during the policy period. The Supreme Court of Canada noted that the identity of these nine alleged victims was discovered by the Jesuits during their own investigations. However, “Nothing in the record suggests that [the Jesuit’s investigator] had the permission of the named victims to communicate this information.” As such, the Court held that these did not constitute “claims” within the meaning of the policy, and, further:

Consequently, [the investigator] could not make a claim within the meaning of the Policy. Moreover, a claim would need to communicate an intention to hold the Jesuits’ responsible for injuries suffered at the Spanish School. Without the victims’ permission, either express or implicit, [the Jesuit’s investigator] could not communicate such an intention on their behalf. In fact, it is unclear whether the nine victims ever had such an intention. It was, therefore, an error for the trial judge to conclude that there were claims made by these nine individuals. Notably, his error has nothing to do with the form of communication, i.e. direct versus indirect. The error related to what was or, more accurately, what was not communicated.

In concluding, the Supreme Court of Canada explained that an occurrence policy would have covered the Jesuits in relation to the allegations made against them by the numerous alleged victims. However, their claims-made policy failed to afford coverage given that (with the exception of the Cooper claim) the “claims” were all made after the policy had expired or were never made at all (the nine alleged victims).

In short, pursuant to Jesuit Fathers, under claims-made policies the injured third party must actually communicate to the insured during the period of cover, either directly or indirectly, an intention to hold the insured responsible for damages suffered. Unless that occurs, the duty to defend is not engaged.