Marc Mayerson has written an excellent analysis of late notice law in various jurisdictions, and makes a persuasive argument for the requirement that an insurer show prejudice to its interests due to an insured’s late notice to defeat indemnity obligations.
I agree with pretty much all of what Marc says, but my favorite part of his post is where he explains how the policyholder’s arguments in Country Mut. Ins. Co. v. Livorsi Marine, (Ill. May 18, 2006), which I posted about here, would have been more convincing if they had analyzed the larger context of insurance coverage law and shown how the prejudice rule is in keeping with the parties’ expectations. One of my least favorite sights is a brief containing a coverage argument that is nothing more than an incantation of magic words, without any explanation of how the argument makes sense in the totality of the policy and in the realm of insurance law in general. Writers like this give the impression they are constantly grabbing your elbow to hurry you along before you realize how thin and threadbare the brief is. What they don’t realize, of course, is that the natural reaction to this sort of intellectual shoving is to resist the argument. (I am making this observation not about the briefs in Livorsi, but about legal writing in general).
This is one of the many fascinating aspects of insurance coverage law: it is built upon so many layers and so much hidden history that the lawyer who is willing to act as an archeologist and do some digging can uncover intellectual treasure that truly enhances an argument. It’s funny how lawyers too often are willing to settle for sounding like mere paid shills who want to use the reader as a wastebasket for words, rather than thinking, reasonable human beings who have knowledge to share. It is also strange how often lawyers forget that a brief is just a chance to communicate one-to-one with another human being, who happens to be a judge. If we remembered these things, we’d take more care with our legal writing, and our writing would be a lot better and more effective.