While analyzing liability policies, courts grapple with a common issue: what constitutes a claim under a claims-made or claims-made-and-reported provision? When third-party claimants file suit, the analysis is often straightforward; the complaint itself is the claim. The analysis becomes murkier, however, when courts must determine whether a pre-suit notice—such as a demand letter—constitutes a claim.

While insurers often argue that attorney demand letters do not constitute claims—and thereby do not trigger coverage—under liability policies, two recent cases, one from the Delaware Supreme Court and one from the Second Circuit Court of Appeals, analyzed insurers arguing the opposite: that because attorney demand letters were claims asserted before the policy period, the insureds should not be entitled to coverage.

Reprinted courtesy of Michael A. Amato, Saxe Doernberger & Vita, P.C. and Jeffrey J. Vita, Saxe Doernberger & Vita, P.C.

Mr. Amato may be contacted at MAmato@sdvlaw.com
Mr. Vita may be contacted at JVita@sdvlaw.com