Marc Mayerson is right. The law that applies to a coverage dispute does make a difference, sometimes all the difference. National Railroad Passenger Service v. Lexington Insurance Company (D.D.C. August 25, 2006) is a good example. District Court Judge Ellen Huvelle granted summary judgment to Amtrak’s excess carriers based on Amtrak’s failure to notify the carriers promptly of a claim that eventually resulted in a Missouri jury verdict of more than $20 million. Click here for a link to the case.
As Judge Huvelle points out, in a majority of jurisdictions, late notice of claim generally doesn’t relieve the insurer of coverage obligations unless the insurer can show actual prejudice resulting from the delay. District of Columbia precedent, however, requires strict compliance with notice provisions that are a condition of coverage. The court found no reason to distinguish between primary and excess policies when applying this rule.