In InsureSharp Realty & Management, LLC v. Capitol Specialty Ins. Corp., 2013 WL 56701 (11th Cir.January 4, 2013)(STATED UNOFFICIALLY REPORTED; Alabama substantive law), a District Judge granted Summary Judgment against all of the Insureds' Coverage and Bad Faith Claims.
One of the grounds for granting Summary Judgment was Late Notice. The Federal Appellate panel confirmed that under Alabama law, Allied World Assurance Company's claims-made E&O Policy at issue contained a Notice Provision which made notice a condition precedent to pursuing any claims against the E&O Carrier, Allied, under or as a result of the E&O Policy. InsureSharp Realty & Management, LLC v. Capitol Specialty Ins. Corp., 2013 WL 56701 *2 (11th Cir. January 4, 2013).
Since notice was a condition precedent, prejudice was not a factor in determining Late Notice under Alabama law in this case. Instead, the Appellate Panel looked only at two factors as a result: the length of the delay and the reasons for the delay. InsureSharp Realty & Management, LLC v. Capitol Specialty Ins. Corp., 2013 WL 56701 *2 (11th Cir. January 4, 2013).
Like the District Court apparently, the Appellate Panel looked at the length of the delay in notice and the reasons for the delay in notice to Allied here. The District Court entered Summary Judgment against the Insureds on this ground, among others, and the Appellate Court affirmed because both the length of the delay and the reasons given for the delay were not reasonable in their eyes. The Appellate Court affirmed without having to reach any other ground for the Summary Judgment in Allied's favor in this particular case. InsureSharp Realty & Management, LLC v. Capitol Specialty Ins. Corp., 2013 WL 56701 *2-*3 (11th Cir. January 4, 2013).
Late Notice often raises a rebuttable presumption of prejudice. As noted, the District Court and the Appellate Panel in this case refused to consider prejudice as a result of the allegedly Late Notice. Instead, the Courts involved in this case turned to the other view of Late Notice, which is whether it is a condition precedent to bringing claims against the Insurance Company under the Insurance Policy. Following the 'condition precedent' view, the District Court entered Summary Judgment and the Appellate Court affirmed.
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