February 2022: The New Comprehensive Insurance Disclosure Act.

• Author: Kronberg, Howard S.
• Position: GUEST COLUMN

* There is an old English proverb that says: "You don't know where you're going until you know where you've been." On the afternoon of December 31, 2021, New York Governor Hochul signed into law New York Senate Bill "7052." Called the "Comprehensive Insurance Disclosure Act," ("CIDA"), it amends the rules that apply to civil litigation in New York as to the production of insurance information by a party in lawsuit. At the time when she signed the Bill, the Governor made clear that she was only signing it on the condition that the legislature would quickly make various changes to it. [ 1 ] Some of these changes came about as a result of the lobbying efforts of Big I NY, and various other interested parties. In this issue of The E&O Report we will review the elements of this new law (based upon both the amendment and the changes that are being made to it) and the potential impact it may have for New York insurance agencies and brokerages.[2]

This amendment to the law, which is retroactive to all pending litigation, represents a change in insurance disclosure in civil cases and may affect your business. Given the complexities involved with this amendment, this E&O Report is a mere summary of the original law, the amendment to the law, and the impact that it may have on New York insurance agencies and brokerages.

PRIOR INSURANCE DISCLOSURE RULE

New York Civil litigation practice, (no matter the nature of the case, claims, or relief sought), is governed by the Civil Practice Law and Rules, ("CPLR"). Despite the word "Rules" in the title, the CPLR is a compilation of state statutes, (similar to the New York Insurance Law), created by the legislative process. The rules contained in the CPLR govern everything from how to start a lawsuit, to how to appeal, and even how to conduct discovery.

Article 31 of the CPLR sets forth the rules for discovery, including depositions, demands for documents, etc. CPLR [section]3101, titled "Scope of Disclosure" is the threshold section that governs everything that comes after it. This section provides the guidelines for discovery in New York civil litigation. Subsection "(f)" states as follows:

(f) Contents of insurance agreement. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy...