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If a business cannot locate its original insurance policy documents, there still are options to win a policy dispute.
Courts place the burden of proving a policy's existence on the policyholder, meaning a would-be claimant has to produce prima facie evidence of a policy. Obviously, the policy itself is ideal, but several other forms of evidence can be used to meet that burden.
"Every jurisdiction has its own rules about how you prove up documents, but it's a preponderance-of-evidence standard," said Jill Berkeley, a Chicago-based partner with Howrey L.L.P. and co-chair of the firm's national insurance recovery practice.
"I'm sure they exist, but I can't think of a single case, in 30 years of my experience, where we didn't find some evidence of coverage," said Jerrold Oshinsky, a partner with Gilbert Oshinsky L.L.P. in Washington.
There are several places to begin a search, either for long-lost policy documents or for secondary evidence to establish a policy's existence, placement and terms.
"First off, I do a historical analysis of all the people who have had that (insurance buying) position and start interviewing them," Mr. Oshinsky said. "One client of mine called a retired risk manager, and he had a box sitting in his house with all of their old policies. You just never know."
Brokers, who generally retain copies of the policies they place, are another potential source of missing documentation. Brokers, however, are not required to keep policies indefinitely.
"We, as brokers, may maintain documents longer for one client than for another, per agreements with the client," said Robert N. Lane, senior counsel and executive vp with Willis (Bermuda) Ltd.
Even if the policy itself cannot be found, the policyholder's burden can sometimes be pieced together through a variety of secondary evidence.
Accounting records often include payments to insurers, which can establish which carrier issued the policy, when the policy was in effect and, in some cases, a policy number. "If a check has one of a carrier's policy numbers on it, that can shift the burden back to the carrier," said Curtis D. Porterfield, a partner with Howrey in Los Angeles.
Records of other claims activity from the relevant period also can offer a clue as to what carrier handled a company's risks at the time. "Find out if your company has ever been sued," said Mr. Oshinsky. "Find out who the lawyers were, and who paid their bills. That might give you the name of the carrier."
Workers compensation records also can be valuable. Because they generally are maintained by the state, these records have the added advantage of not being subject to the vagaries of corporate recordkeeping.
"There's a good chance that whoever was carrying your workers comp coverage in the '60s, for example, was also your liability carrier," Mr. Oshinsky said.
Another potential source of policy information is the London insurance market. Many London brokers have detailed record-keeping practices, Mr. Oshinsky said, and still might have records that no longer can be found in the United States.
Once a policy's placement is known, the next step is to establish the policy's terms.
For standard-form general liability policies, a policyholder may only need to prove what carrier issued the policy, its limits and the policy period, Mr. Porterfield said. Depending on the circumstances of the case, that may be enough to place a burden on the carrier to prove the policy in effect included any exemption that was not part of the standard form.
There is a small industry of insurance archaeologists--professionals who make a living piecing together fractured insurance histories.
"You can look to an archaeological firm to recreate what happened and what the policy said, and there are good firms out there that do that," Mr. Lane said, "but it's expensive."
"There's always a fairly decent chance," said Michele G. Piero, executive vp of Insurance Archaeology Group, a New York-based insurance archaeology firm. "A lot of it depends, obviously, on the record-keeping practices of the company, but there are outside sources, too. If a company doesn't have records, but they're in a business where they've always had a lot of claims, for example, then they might have a good paper trail anyway."