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Court rules Harvard filed for excess coverage too late

Posted On: Aug. 10, 2023 1:26 PM CST


Harvard University filed its claim in connection with its open admissions litigation too late to access its $15 million in excess coverage, a federal appeals court ruled Wednesday.

Harvard purchased a one-year, claims-made secondary excess liability policy from Zurich American Insurance Co. that provided coverage from November 2014 to November 2015 that required that claims be reported no later than Jan. 30, 2016, according to the ruling by the 1st U.S. Circuit Court of Appeals in Boston in President and Fellows of Harvard College v. Zurich American Insurance Co.

The primary policy for $25 million was issued by American International Group Inc. unit National Union Fire Insurance Co. of Pittsburgh PA, which is not a party to the litigation.

In November 2014, Students for Fair Admissions sued Harvard in federal court for allegedly violating Title VI of the Civil Rights Act of 1964. The case was ultimately decided by the U.S. Supreme Court, which in June of this year ruled against the university in Students for Fair Admissions v. President and Fellows of Harvard College.

While Harvard notified AIG of the pending lawsuit in November 2014, it did not notify Zurich until May 2017, “well outside the excess policy’s ninety-day notification window,” the ruling said.

The insurer consequently denied coverage on the basis that Harvard had not provided timely notice of the claim.

The university sued Zurich in U.S. District Court in Boston, seeking declaratory relief and breach of contract damages. The court granted Zurich summary judgment dismissing the case.

On appeal, Harvard contended that the lower court misapplied Massachusetts law when it held that strict compliance with the excess policy’s notice requirement was a coverage prerequisite.

In affirming the lower court’s decision, the three-judge appeals court panel said the parties did not dispute that Harvard had purchased a claims-made policy from Zurich, nor that it did not provide written notice until May 2017. “Consequently,  Zurich had every right to deny coverage based on a lack of timely notice,” the panel said.

An attorney for the insurer and a Harvard spokesman had no comment.