Director & Officer Liability insurance (“D&O”) and professional liability insurance are written on a claims-made basis, and through either definitions or exclusions, treat claims that are related as one claim. Why does it matter if various claims made against an insured are related? There are several answers. Whether different claims are related could mean the difference between having insurance coverage or not; whether the insured has to pay one retention or several retentions; or whether one policy limit applies or several limits are available. This post will discuss the last of these.
The purpose of “related claim” language in an insurance policy is to require that separate claims, or lawsuits, are treated as one claim made at the time the earliest claim was made. In an unpublished opinion earlier this year, the Ninth Circuit affirmed a district court’s ruling where 28 lawsuits filed over a three-year period against the insureds were all one claim, and only one policy limit applied. In Previti v. National Union Fire Insurance Co. of Pittsburgh, PA, the insureds were various individuals who owned or controlled numerous affiliated entities. National Union had issued three D&O insurance policies to the insureds—Policy No. 1 (2007-2009), Policy No. 2 (2009-2010), and Policy No. 3 (2010-2011). National Union’s insurance policy defined Related Wrongful Acts as “Wrongful Acts which are the same, related or continuous, or Wrongful Acts which arise from a common nucleus of facts. Claims can allege Related Wrongful Acts regardless of whether such Claims involved the same or different claimants, Insureds, or legal causes of action.” Continue Reading