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New York Court Reaffirms That Grand Jury Subpoenas Constitute “Claims” Under Language Commonly Used In Liability Policies

By Nathan Lander & Proskauer Labor and Employment Department on April 16, 2014
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Syracuse University and National Union Fire Insurance Company recently settled a much-watched coverage battle over National Union’s obligation to cover Syracuse’s costs in responding to grand jury subpoenas.  Fortunately for policyholders, National Union’s decision to settle came after Syracuse prevailed in the trial and intermediate appellate courts, yielding a pro-policyholder decision that such subpoenas fall squarely under the definition of “claim” under common policy language.

The dispute between Syracuse and National Union arose out of the well-publicized sexual abuse allegations made against former Syracuse assistant basketball coach Bernie Fine by two former “ball boys” for Syracuse’s famous basketball program.  After these allegations came to light, Syracuse was served with a series of six subpoenas in connection with state and federal grand jury investigations.  The subpoenas demanded that Syracuse produce a wide range of documents and other materials, including electronic equipment issued to Fine, lists of bus companies and hotel accommodations used by Fine for team road trips.

Syracuse provided notice of the subpoenas to National Union – which had insured Syracuse under a not-for-profit individual and organization liability policy – but National Union denied coverage on the grounds that the subpoenas did not constitute “claims” under the policy and did not involve alleged “wrongful acts” against Syracuse.  The trial court rejected these arguments, and granted partial summary judgment to Syracuse.  In a one-page opinion, the appellate court affirmed the trial court’s decision and fully endorsed its reasoning.

The National Union policy defined a “claim” to include a “written demand for monetary, non-monetary or injunctive relief” or “a civil, criminal, administrative, regulatory or arbitration proceeding for monetary or non-monetary relief…”  The trial court found that the grand jury subpoenas fell squarely within this definition because they constituted a demand for non-monetary relief and the initiation of a criminal proceeding.  In reaching this conclusion, the court relied in part on a decision from the Second Circuit in MBIA, Inc. v. Federal Ins. Co. which had similarly held that a subpoena from the New York State Attorney General’s office constituted a claim under similar policy language.  The court flatly rejected the insurer’s argument that a subpoena is nothing more than a “discovery device,” noting that a sensible businessperson would not perceive a grand jury subpoena in such a harmless and limited fashion.

The court also rejected National Union’s argument that Syracuse had no coverage for the subpoenas because it was not a named target.  Applying the well-settled rule that an insurer has a duty to defend so long as the claim involves any facts or allegations that potentially fall within coverage, the court held that the subpoenas triggered the insurer’s defense obligations.  The court noted that the subpoenas clearly sought evidence against Syracuse, not just Fine, as they explicitly requested emails sent after Fine had been terminated, suggesting authorities were looking into whether Syracuse tried to keep the allegations from coming to light.

Insurers will no doubt advocate a cramped reading of Syracuse University v. National Union Fire Insurance Company, contending its holding is limited to the precise definition of “claim” in the National Union policy and the case-specific facts surrounding the subpoenas in question.  However, the Syracuse decision has broader implications.  Combined with the MBIA decision, Syracuse provides further support to policyholders in their efforts to obtain coverage for the often substantial costs incurred in responding to subpoenas issued by investigative bodies.

Photo of Nathan Lander Nathan Lander

Nathan Lander is a partner in the Insurance Recovery & Counseling Group who represents clients in high-stakes disputes with their insurance companies as well as counseling them regarding a wide array of insurance issues.  Clients have praised Nate in Chambers and The Legal…

Nathan Lander is a partner in the Insurance Recovery & Counseling Group who represents clients in high-stakes disputes with their insurance companies as well as counseling them regarding a wide array of insurance issues.  Clients have praised Nate in Chambers and The Legal 500 as being “responsive, knowledgeable and creative,” a “zealous advocate” and “absolutely amazing to work with.”

During the course of his career, Nate has assisted clients in recovering more than $1 billion in disputes with their insurers through litigations, arbitrations, mediations and negotiations.  Nate prides himself in helping clients reach favorable resolutions with their insurers where possible, but when insurers refuse to pay, Nate has aggressively litigated coverage disputes against them in courts and arbitrations throughout the country.

Although Nate has represented a wide range of policyholder clients – including Fortune 500 companies and professional sports teams, among others – Nate is particularly well-known for his representations of asset management clients in insurance disputes.  Nate has represented numerous private equity firms and portfolio companies, hedge funds, registered funds, venture capital firms, and other asset managers in disputes with insurance companies, including claims for coverage under D&O, E&O, crime, life, property, and other policies.  For example, Nate was recently lead counsel for a private equity firm in a litigation over $100 million of coverage its insurers refused to provide for claims against the private equity firm arising from the bankruptcy of a portfolio company.

In addition to his litigation practice, Nate also regularly advises clients on risk management issues, including structuring of insurance programs and the negotiation and drafting of policy language, in order to help protect clients in the event of a claim or loss.  Nate has particular experience with respect to the insurance markets and products for asset management clients.  He has assisted numerous asset managers of all types and portfolio companies in reviewing and negotiating potential insurance policies or programs, including D&O, E&O, EPL, fiduciary, crime, cyber, reps & warranties and other specialized products.

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  • Posted in:
    Insurance
  • Blog:
    Risk and Recovery
  • Organization:
    Proskauer Rose LLP

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