Lawyers representing Harvard University asserted that the institution did not have to notify Zurich American Insurance Co about the high-profile affirmative action lawsuit the school faced since the insurer “surely knew about” it.
In November 2014, Students for Fair Admissions (SFFA) filed a lawsuit against the university alleging that its undergraduate admissions practices discriminated against Asian Americans. The case, which was widely covered by mainstream media, resulted in the insurance dispute.
On Monday, Harvard’s lawyers said in a federal court filing that the prominence of the case made it unnecessary to notify the insurance company.
“The notice requirement is not an escape hatch for insurance companies to avoid liability to policyholders due to technical noncompliance,” Harvard’s lead lawyer Marshall Gilinsky of Anderson Kill told the Boston District Court.
Last year, Harvard filed a lawsuit against Zurich, demanding that as its secondary insurer it should cover $15 million as part of the expenses it spent defending its admissions practices.
The school has reportedly spent over $25 million for its legal defense, consuming the entirety of its Educational Institution Risk Protector insurance policy from AIG’s National Union Fire Insurance, its primary insurer.
Last month, Zurich filed a pretrial motion for judgment in which it claimed the excess policy covered only claims that were both “made and reported” between November 2014 and January 2016. While SFFA’s 2014 lawsuit was a “claim made” against Harvard, Zurich countered that the school took too long to notify them about the claim.
Harvard responded by pointing out that actual notice trumps the policy’s deadline for making claims in such a case.
While the school admitted to notifying Zurich in May 2017, it asserted that the insurance company must have already known of SFFA’s lawsuit before January 2016, thus satisfying the notice requirement.
Harvard has also filed a motion to order Zurich to turn over underwriting files and other documents as proof that it had prior knowledge of the lawsuit. Zurich has opposed said motion.
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