New ‘Traps’ Example: Notice to Malpractice Insurer Under ‘Claims-Made’ Policies

Thursday, March 11, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. We invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.

TRAPS EXAMPLE: NOTICE TO INSURER ATER RECEIVING NOTICE OF MALPRACTICE CLAIM

Most legal malpractice policies are written on a “claims-made” basis. Therefore, it is important for an attorney who receives notice of a malpractice claim to notify the malpractice insurer as soon as possible, because the insurer could deny coverage due to late notice. Although an insurer must demonstrate it suffered prejudice from late notice before it can deny coverage under an “occurrence” type policy, an insurer need not demonstrate such prejudice under a claims-made policy! Tenovsky v. Alliance Syndicate, Inc., 424 Mass. 678, 681, 677 N.E.2d 1144 (1997).

VIEW PREVIOUS EXAMPLES