The Volokh Conspiracy

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Could Failure to Inform Insurer of Affirmative-Action Lawsuit Cost Harvard $15 Million?

Pro-tip: If you are sued, and you expect your insurer to pick up the bill, it is a good idea to give them timely notice.


Students for Fair Admissions v. Harvard is not the only big lawsuit involving Harvard University. As the NYT's Adam Liptak reports, Harvard is also in state court, suing one of its insurers over $15 million in coverage for the costs of defending itself from the affirmative action lawsuit.

Days after Students for Fair Admissions sued Harvard in 2014, arguing that its practice of taking account of race in its undergraduate admissions decisions was unlawful and harmed Asian American applicants, the university formally notified its primary insurance carrier to seek payment of its defense costs. That policy had a $25 million limit, after Harvard paid $2.5 million.

But Harvard did not alert Zurich, its excess insurer, which was meant to cover the next $15 million, until long after the policy's deadline had passed.

That additional money is at issue in the case before the federal judge in Boston.

"Somebody seriously messed up," said Tom Baker, a law professor at the University of Pennsylvania. "I teach about this stuff. One of the things you teach people about claims-made policies is that you've got to provide notice early and often."

Liptaks' story also quotes and links to the filings.

In court papers, lawyers for Zurich said the case was straightforward. "Harvard's admitted failure to comply with the notice provision," they wrote, "is fatal to its claim for coverage."

In response, Harvard's lawyers argued that Zurich "surely knew" about the affirmative-action suit "in the year after it was filed, especially given the significant, ongoing attention that the suit received in national and local news" and Zurich's own underwriting activities.

They added: "The notice requirement is not an escape hatch for insurance companies to avoid liability to policyholders due to technical noncompliance."

Zurich's lawyers said that argument was "creative yet specious" and "outlandish."

Both Harvard and Zurich refused to provide comment for Liptak's story beyond what is in their public filings.

The story also discusses the costs and financing of the plaintiffs and the defense of the University of North Carolina, which is the subject of a companion case in the Supreme Court.