The Oregon Court of Appeals delivered a decision in the Certain Underwriters v. Mass. Bonding and Ins Co, 287 Or App 279 (2017). The trial court’s decision to dismiss London’s contribution claims was affirmed. The Court of Appeals decided that the trial court properly concluded that there had been “no final judgment after exhaustion of all appeals” entered before the effective date of the 2013 amendments to the Oregon Environmental Cleanup Assistance Act, and therefore the 2013 amendments applied to the claims. The 2013 amendments applied retroactively, unless there was a final judgment after exhaustion of all appeals regarding the environmental claim. The Court of Appeals found that since the environmental claim by the common insured against London had not reached the point where all appeals had been exhausted at the time the 2013 amendments were enacted, the retroactivity clause applied and London was barred from seeking contribution.
By David M. Knapp, Ward Greenberg Heller & Reidy LLP
Applying the New York Court of Appeal’s landmark Viking Pump decision for the first time, the Second Circuit recently held that an “all sums” allocation applied to policies issued to Olin Corporation by OneBeacon American Insurance Company in a long-tail environmental coverage dispute. Olin Corp. v. OneBeacon A. Ins. Co., 2017 U.S. App. LEXIS 12939 (2d Cir. July 18, 2017). In accordance with Viking Pump, the Second Circuit held that an “all sums” allocation must be applied, because the policies contained the following noncumulation and continuing coverage provisions (“Condition C”):
It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess policy issued to the Insured prior to the inception date hereof, the limit of liability hereon . . . shall be reduced by any amounts due to the Insured on account of such loss under such prior insurance.
Subject to the foregoing paragraph and to all other terms and conditions of this Policy in the event that personal injury or property damage arising out of an occurrence covered hereunder is continuing at the time of termination of this Policy, [OneBeacon] will continue to protect the Insured for liability in respect of such personal injury or property damage without payment of additional premium.
Id. at *9. According to the Court, “Condition C permits an insured to pursue full recovery from any insurer in its program whose policy covers the relevant loss and contains Condition C irrespective of whether the insurer’s policy was issued at the beginning, in the middle, or towards the end of the continuing occurrence.” Id. at *45.
The court also held that the noncumulation provision of Condition C also has the effect of reducing the limits of a triggered policy by the amount of coverage afforded under any policy within the same layer of coverage for a prior year. Id. at *46 (“This provision allows the insurer to offset its indemnification obligations by amounts already paid to cover the loss by another insurer in the same coverage tier.”). However, the Court noted that it would be the insurer’s burden to “prove its entitlement under this contractual provision.” Id. at *47.
The Restatement of the Law of Liability Insurance is scheduled for a debate and vote at the ALI’s Annual Meeting in Washington, D.C. on Tuesday, May 23. To the surprise of many, however, the ALI announced this morning that any final vote on the project as a whole will be deferred until May 2018 to give the Reporters time to address a multitude of issues that have been raised in recent weeks.
In the days leading up to this year Annual Meeting, the ALI has been bombarded with a surprising number of letters of concern from state regulators, industry trade groups, insurance executives, defense bar associates and outside counsel. The common theme is that many provisions in this Restatement stray from the common law and that further consideration is required to ensure that it is a useful and accurate source of legal authority.
In addition to the commentary that outsiders have submitted, ALI members have filed over a dozen motions that will be argued in the course of the two hour debate on Tuesday morning. Nearly all have been submitted by ALI members who are aligned with the insurance industry.
Omnibus motions have been filed by Peter Olmssen of AIG and others asking that the entire project be recommitted with clearer instructions to the Reporter as to whether and when to diverge from majority rules of contract interpretation. It is now unclear whether these motions will be argued.
Notwithstanding the fact that the entire project is being resubmitted to the Reporters for further consideration, the ALI membership will be asked to debate those provisions of Chapter 3 that have been changed since years meeting (ie. Sections 13(3) and 24) as well as the new Chapter 4. If time permits, members will also be permitted to speak further concerning sections that were approved at earlier meetings but remain controversial, particularly the rules of contract interpretation set forth in Sections 3 and 4.
The membership will also hear debate on the following motions have been filed as to individual sections:
–Section 3: Vanita Banks of Allstate has moved to restore the “plain meaning” rule for interpreting insurance policies in lieu of the Reporters’ proposed “presumption” of plain meaning.
–Section 4: Vanita has also moved to eliminate language that would have treated manuscripted provisions as being written by the insurer even if the language was supplied by the policyholder or broker.
–Section 8: Joanne Locke of Liberty Mutual has moved to amend the treatment of misrepresentations to eliminate the requirement that misstatement not only be “material” but have a “substantial” impact.
–Section 12: Mary Massaron Ross of Plunkett & Cooney has moved to delete Subsection (2) that would impose liability on an insurer for negligence in hiring defense counsel or for not checking that the firm had adequate malpractice insurance.
–Section 13: Natasha Nye of Peters & Nye has moved to revised Subsection (2) to make clear that extrinsic facts should only trigger a duty to defend if the insurer has actual knowledge of it, whereas the Reporters would also include such facts as a “reasonable insurer” would have been aware of.
–Section 13: Bill Barkers of Dentons has moved to restore the Reporters’ earlier language that would have allowed insurers to refuse to defend based on undisputed material facts rather than the few enumerated exceptions that the Reporters adopted in 2016.
–Section 21: Rich Hodyl has moved to amend Sections 21, 25 and 48 to acknowledge rights of recoupment and restitution for payments made on claims that are not covered.
–Section 24: Joanne Locke has moved to amend Subsection (1) to make clear that liability for failing to settle only applies where there is a potential for a judgment in excess of limits and the loss is covered under the policy. Joanne has also filed a separate motion to clearly state that insurer’s do not have a pro-active duty to make a settlement offer.
–Section 24: Michael Aylward of Morrison Mahoney has moved to delete any consideration of “procedural factors” in assessing whether insurers may be liable for not settling.
–Section 27: Bill Barker has moved to add language to make clear that an insurer may only be liable for failing to settle within policy limits if an excess judgment enters thereafter.
–Section 35: Bill also proposes to amend the consent section to require actual consent by an insurer where the policy so provides.
–Section 36: Michael Aylward has moved to amend Subsection (2) to eliminate language allowing insurers to report claims after policies have expired.
–Section 42: Larry Stewart of Stewart Tilghman has filed a policyholder motion asking the Reporters to adopt an “unavailability” exception for long tail allocation so that policyholders are not responsible for orphan shares attributable to losses continuing after 1986 when asbestos and pollution coverage was largely deleted from standard CGL forms.
–Section 45: Joanne Locke has moved to amend this section to confirm its provision to the treatment of “mandatory terms” else in the text.
–Section 47: Michael Aylward has moved to revise the treatment of “known loss” to preclude coverage in situations where the insured has already been sued or received a written demand for damages.
–Section 47: Natasha Nye has moved to revised Subsection (2) to eliminate the Reporters’ assertion that the “known loss” doctrine does not apply to “claims made” insurance.
–Section 48: Victor Schwartz of Shook, Hardy & Bacon has moved to revise Sections 48, 49 and 51 to restore the “American Rule” and eliminate the Reporters’ proposed fee shifting to insurers.
Insurers should be aware of the recent Washington State Supreme Court decision in Xia v. ProBuilders Specialty, No. 92436-8 ___ Wn.2d ____ (2017) handed down on April 27, 2017. The decision may have significant impacts not only in coverage litigation regarding environmental contamination, but across a broad spectrum of liability claims under CGL policies. In short, the Washington State Supreme Court has unequivocally adopted the “efficient proximate cause rule,” normally reserved for first party policies, in its analysis of coverage under a liability policy.
The case involved a homeowner that moved into a home built by Issaquah Highlands (homebuilder) in May of 2006. Shortly after moving in she began to feel ill. It was eventually discovered that an exhaust vent attached to the hot water heater had not been installed correctly and was discharging carbon monoxide into the basement of the home. The homebuilder’s insurer denied the claim for defense and indemnity under the pollution exclusion and a townhome exclusion.
The injured plaintiff ultimately entered into a $2 million stipulated settlement with the homebuilder with a covenant not to execute against the homebuilder, and an assignment of all plaintiff’s rights against its insurer, ProBuilders. The plaintiff then sued ProBuilders directly for bad faith, violation of Washington statutes related to claims handling, as well as breach of contract. The parties brought cross motions for summary judgment and ProBuilders won on the basis that the townhouse exclusion applied and it had no obligation to defend. On appeal, the Court of Appeals disagreed with the trial court regarding the townhome exclusion, but held that the pollution exclusion barred coverage and that ProBuilders had no duty to defend.
The Supreme Court, however, reversed the Court of Appeals decision by applying the “efficient proximate cause rule” to the duty to defend analysis. This is the first time the Court has applied the efficient proximate cause rule in the third party liability context. The Court acknowledged that the Pollution exclusion applied to bar coverage for bodily injury caused by a release of contaminants (Carbon Monoxide); however, it held that the negligent installation of the vent on the hot water heater was a potentially covered cause under the policy in the first instance. Under the efficient proximate cause rule, where “two or more perils combine in sequence to cause a loss and a covered peril is the predominant or efficient cause of the loss,” the loss is covered. The court stated: “by applying the efficient proximate cause rule, it becomes equally clear that the ProBuilders policy provided coverage for this loss. The polluting occurrence here happened only after an initial covered occurrence, which was the negligent installation of a hot water heater that typically does not pollute when used as intended.”
The Court then explained that “the allegations of Xia’s complaint provided a reasonable and conceivable basis to believe that the negligent installation of the hot water heater, itself a covered occurrence under the policy provisions, set in motion a causal chain wherein the venting of exhaust lowered the oxygen content of the room such that a normally nonpolluting appliance began discharging toxic levels of carbon monoxide fumes.” The Court held that ProBuilders failed to conduct an investigation into Washington law that might have alerted them to the rule of efficient proximate cause, and the court’s unwillingness to permit insurers to draft language to avoid it. Thus, the insurer wrongfully refused to defend. The Court reversed the trial court decision and granted summary judgment on the breach of contract and bad faith claims in favor of Plaintiff. The statutory claims regarding the Insurance Fair Conduct Act and Consumer Protection Act were remanded for further proceedings.
The end result is that the insurer was found in bad faith, because it did not consider application of a first-party insurance concept to a third-party liability insurance claim, that had never been done before, and now faces at a minimum the $2 million in stipulated damages for failing to defend.
Even as the May 23 date for a final vote on the American Law Institute’s Restatement, Law of Liability Insurance draws near, a torrent of criticism from outside parties is raising questions with respect to the fate of this project.
On May 5, the President of DRI, the Voice of the Defense Bar weighed in, arguing that many of the provisions in the Proposed Final Draft do not reflect settled law as required for a Restatement and impose duties on insurers that will impede the ability of defense lawyers to effectively carry out their responsibilities.
May 5 also saw a letter posted from the National Conference of Insurance Legislators, urging reconsideration of the Restatement sections dealing with policy interpretation (Sections 3 and 4), the consequences of failing to defend (Section 19), the duty to settle (Section 24) and fee shifting (Section 48). The letter seeks a meeting with the ALI Reporters to detail their concerns and threatens a public resolution challenging the legitimacy of this project is a meeting is not granted.
That same day, a senior vice president at broker Guy Carpenter Co. (Malcolm Rowland) also urged delay to allow time for reconsideration.
Earlier in the week, the Property & Casualty Insurance Association of America (PCIAA) expressed concerns about the impact that this project would have on the availability of insurance and the proper interpretation of insurance policies, particularly as regards Section 19 and 24.
As yet only one Motion has been formally filed. It seems certain that ALI members who favor policyholder and insurer positions will be filing further Motions in the next two weeks, challenging contentious provisions dealing with policy interpretation, exclusions and bad faith. Meanwhile, policyholders have pulled back with respect to the challenge that they presented to the Restatement’s treatment of allocation issues under long-tail claims, such as environmental contamination and asbestos. Whereas a Motion that was presented (but not debated) at the 2016 Meeting asked that the Reporters adopt an “all sums” approach, a new Motion filed by Larry Stewart accedes to a “pro rata” approach but urges the Reporters to add an “unavailability” exception that would relieve policyholders of any duty to bear responsibility for orphan shares allocable to years after 1986 when most insurers began including mandatory exclusions for asbestos and pollution liabilities.
In my post earlier today, I referenced the April 5 letter that the ALI has received from the Idaho Insurance Commissioner urging delay so that state regulators can have input concerning the final text of the Restatement of the Law of Liability Insurance. I neglected to add that the ALI had earlier also posted a lengthy letter from Eric Dinallo, who served as New York’s Superintendent of Insurance from 2007 to 2009, outlining those regulatory concerns.
After seven years and countless drafts and revisions, the American Law Institute’s Restatement of the Law of Liability Insurance is scheduled for a final vote at the ALI’s Annual Meeting in Washington, D.C. on May 23, 2017. Even as the project Reporters (Professors Tom Baker and Kyle Logue) start to contemplate life after this Restatement, a new challenge has surfaced that threatens the future of the project.
On April 5, the ALI posted a letter from Dean L. Cameron, the Director of the Idaho Department of Insurance. In his letter, which was addressed to the Executive Director of the ALI, Cameron urges the ALI to defer final approval of this Restatement in light of its potential implications for the sale and regulation of liability insurance:
Dear Director Revesz,
The ALI’ s Restatement, Liability Insurance project proposes revisions in insurance law as well as black-letter rules. Not only are the proposed revisions and rules of concern to the insurance industry and policyholders, they may also be of concern to regulators. The proposed changes could significantly alter the course of doing business ergo, its regulation.
The Idaho Department of Insurance respectfully requests that the finalization of the Restatement, Liability Insurance project be delayed to a date later than May 2017, allowing state regulators the opportunity to weigh in on important issues raised by the proposed Restatement. This topic has just now come to the attention of our legal department which requires time to delve into this complicated topic in order to advise and submit an opinion.
Thank you for your attention to this matter and consideration of delaying the finalization of the Restatement, Liability Insurance project.
As yet, it does not appear that a formal response has been issued, nor is it clear whether similar requests have been submitted by other state regulators or may be forthcoming.
Some readers may recall West Hills Development Co. v. Chartis Claims, Inc., 360 Or. 650 (2016), in which the Oregon Supreme Court reaffirmed the law governing the broad duty to defend in Oregon. After that case was decided, a dispute over attorney’s fees remained. Last month, the Oregon Court of Appeals affirmed a supplemental judgment awarding West Hills attorney’s fees, over the insurer’s objection that the “action should be recharacterized as a suit for equitable contribution as among coinsurers,” such that ORS 742.061 would not serve to provide attorney’s fees. See 2017 Or. App. LEXIS 279 (2017). ORS 742.061 provide that:
[I]f settlement is not made within six months from the date proof of loss is filed with an insurer and an action is brought in any court of this state upon any policy of insurance of any kind of nature, and the plaintiff’s recovery exceeds the amount of any tender made by the defendant in such action, a reasonable amount to be fixed by the court as attorney fees shall be taxed as part of the costs of the action and any appeal thereon.
The underlying case was a construction defect action; West Hills was the general contractor. West Hills sought coverage as an additional insured under its subcontractors’ general liability policies. Quanta Specialty Lines Insurance Company (Quanta) and Asset Protection Program Risk Retention Group, Inc. (RRG) undertook West Hills’s defense. One insurer, Oregon Auto, declined to participate in West Hills’s defense, and West Hills sued Oregon Auto for breach of contract and for equitable contribution and equitable subrogation, claims which were assigned to West Hills by Quanta and RRG.
The trial court found in favor of West Hills, ruling that “West Hills was an insured under the Oregon Auto policy, that Oregon Auto had owed a duty to defend, and that West Hills had been damaged in the amount of $28,884.42, the sum alleged in the contract claim.” West Hills also sought attorney’s fees totaling $83,617.75 for prosecuting the coverage action. The trial court ultimately awarded West Hills $74,867.75 in fees.
On appeal, Oregon Auto argued that because there was a self-insured retention in the Quanta policy, West Hills was a “’self-insurer,’ that ‘[i]n substance, if not form, this is an action for equitable contribution and, therefore, it is not an action to which ORS 742.06191) applies.’” Oregon Auto cited Certain Underwriters v. Mass. Bonding & Ins. Co., 235 Or. App. 99 (2010), in which the Oregon Court of Appeals held that a claim for equitable contribution did not qualify for attorney’s fees under ORS 742.061.
The court rejected the argument that West Hills was a self-insurer, declaring first that “Quanta’s SIR provision was irrelevant to Oregon Auto’s duty to defend West Hills. Oregon Auto has made no suggestion that it was entitled to withhold its defense in reliance on another company’s deductible provision.” The court rejected Oregon Auto’s reliance on Certain Underwriters, explaining that case involved “the demand of insurers against other insurers for equitable contribution” whereas here, “West Hills’ first claim was for breach of the contract’s duty to defend.” The court clarified that “[a]lthough it is true that West Hills’ second claim sought equitable contribution and the third claim asserted subrogation rights of Quanta and RRG, those claims do not justify recharacterizing the first claim on the policy, nor the action as a whole.”
The full ramifications of this case remain to be seen. For now, insurers should be aware that an insured’s claims for breach of contract and equitable subrogation may support an award of attorney’s fees, even if claims for equitable contribution do not.
The Oregon Court of Appeals, in Brockway v. Allstate Prop. And Cas. Ins. Co., 284 Or.App. 83 (March 1, 2017), recently ruled in favor of an insurance company’s reliance on a suit limitation policy provision, issuing an opinion that reinforces the value for an insurance company in the practice of reserving all of its rights and defenses and disavowing any waiver or estoppel in claims correspondence with its insured. The Court’s holding also illuminates the scope of contractual claims for breach of the implied covenant of good faith and fair dealing in first-party insurance claims-handling cases. A strong thread running through the Court’s holdings is that when an insurance company represents to an insured that it is investigating a claim or loss, if it is not misrepresenting that fact or acting improperly in its investigation, the insurance company’s position in relying on a suit limitation provision is bolstered significantly.
The case involved the following facts. On September 8, 2009, the insureds notified Allstate of a theft of property from their backyard. More than two years after the loss, Allstate denied coverage for the loss, asserting that the insureds had misrepresented material facts and failed to cooperate with the investigation. The insureds then sued Allstate, seeking damages for breach of contract and for breach of the implied covenant of good faith and fair dealing. Allstate obtained summary judgment against all of the insureds’ claim because of a suit-limitation provision in their two policies that required them to bring any claim “related to the existence or amount of coverage or the amount of loss for which coverage is sought” within two years of the date of the loss. The insureds appealed, asserting that the trial court erred by holding that there were no genuine issues of fact regarding whether Allstate was estopped from relying on the suit-limitation provision. They further asserted that a different suit limitation provision in the policy, which was triggered by the accrual of the claim rather than the date of the loss, applied to their claim of breach of the duty of good faith and fair dealing.
The Court of Appeals rejected the insureds’ arguments, and affirmed the summary judgment in favor of Allstate. Regarding estoppel, the insureds had argued that they were justified in relying on Allstate’s conduct because every letter from Allstate recited that Allstate was continuing to investigate the claim, even in letters sent after the two-year suit limitation period elapsed. They also emphasized that, even after the limitation period elapsed, Allstate’s attorney wrote to inform them that “Allstate can neither admit nor deny coverage at this time.”
The doctrine of equitable estoppel required that Allstate must have done something that affirmatively induced the insureds to delay their suit, and the Court held that there was no evidence that would allow a reasonable juror to infer that. The Court explained that there was no evidence that Allstate made any misrepresentation, and that the evidence was that, even though Allstate had no duty to remind the insureds of the suit limitation, a year after the loss, Allstate did so in a letter. In addition, Allstate repeatedly stated in its letters that it reserved all of its rights, and no waiver or estoppel was intended or should be inferred. Also, in Allstate’s many communications with the insureds, it informed them that it was continuing to investigate the claimed loss, and there was no evidence suggesting that was not the case. The Court also observed that, as a matter of law, under ORS 742.056, Allstate’s investigation of a loss or claim does not estop it from asserting any policy provision or defense under the policy.
The insureds had emphasized Allstate stated that it was continuing to investigate the claim in letters sent after the two-year suit limitation period elapsed. The insureds asserted that Allstate, to be consistent with its position at trial on the suit limitation provision, should have written instead that the claim was barred. The Court dismissed this argument as inapt, noting that the suit limitation provision was a condition of forfeiture that does not nullify coverage, but instead bars a suit once the limitation period passed. The court also noted that those letters could not have influenced the insureds’ decision to not file a suit before the suit-limitation period elapsed.
In their second assignment of error, the insureds argued that the trial court erred in granting summary judgment to Allstate on their claim for breach of an implied covenant of good faith. The insureds relied on the same conduct that they asserted had estopped Allstate from relying on the suit limitation provision. The insured’s had argued that they had a reasonable expectation that Allstate would fairly evaluate and investigate the claim, and that a jury could find that Allstate breached its duty of good faith by taking more than 17 months to evaluate a simple property theft, by requiring EUOs and further documentation after the limitation deadline, and the issuing a denial based on misrepresentations and concealment after the deadline passed.
The Court rejected the insured’s arguments, explaining at the outset that under Oregon law, a claim for breach of the duty of good faith and fair dealing in first-party insurance claims handling cases is a breach of contract. Under the case law the Court relied upon for that proposition, such claims are not tort claims or extra-contractual bad faith claims. The Court explained that duty of good faith and fair dealing was to be applied in a manner that would effectuate the objectively reasonable expectations of the parties to the insurance policies, and it held that there was no evidence that any of Allstate’s actions were contrary to the insured’s reasonable expectations based on the terms of the insurance policies.
The Court explained that it made no difference that Allstate did not remind the insureds of the suit limitation in every letter it sent, because the insurance policies imposed no such duty on Allstate., and the insureds had no objectively reasonable expectation that Allstate would inform them of the suit limitation, much less that it would repeat that information after having already done so once during its investigation. The Court further explained that Allstate’s communications reflected its continued attempts to determine the losses attributable to the claimed theft, and the insureds pointed to no evidence that suggested the investigation was improper. Finally, it also noted again that there was no evidence that Allstate did anything that reasonably induced the insured to not commence any legal action until after the suit limitation period elapsed.
New York’s Appellate Division, Second Department, holds that a disclaimer or denial of coverage sent to an additional insured’s carrier, which was not an agent for receiving such notice, was ineffective to disclaim coverage under N.Y. Ins. Law Section 3420(d).
In Harco Construction, LLC v. First Mercury Insurance Company, Harco had entered into a construction contract with 301-303 West 125th, LLC. Harco then entered into a subcontract with Disano Demolition Company, under which Disano agreed to demolish structures located on 301-303’s premises. Disano also agreed to purchase a CGL policy naming Harco and 301-303 as additional insureds. FMIC issued a policy to Disano with an additional insured endorsement, which included as insureds organizations for which Disano was performing operations when Disano and such organization had agreed in writing that such organization be added as an additional insured. Harco also was a named insured under a CGL policy issued by Mt. Hawley.
In the course of construction, a partially demolished five-story building collapsed, resulting in numerous personal injury claims against Harco and 301-303. Harco’s insurer, Mt. Hawley, sent a letter to FMIC on behalf of Harco and 301-303, providing notice of the incident and demanding that FMIC defend and indemnify Harco and 301-303 for any resulting claims. FMIC responded with a letter to Mt. Hawley, disclaiming any duty to defend or indemnify Harco, because an exclusion for “[a]ll work over 1 story in height” barred coverage for the claims. FMIC, however, did not disclaim coverage as to 301-303, and did not send its disclaimer letter directly to either Harco or 301-303.
In this action, Harco and 301-303 sought a judgment declaring that FMIC was obligated to defend and indemnify them in the underlying actions.
The court found that the exclusion was applicable to the loss; however, the issue was whether FMIC had waived and/or should be estopped from disclaiming coverage for its failure to send a copy of its disclaimer letter directly to Harco and 301-303. As to Harco, the court found that FMIC’s failure to do so violated N.Y. Ins. Law Section 3420(d), which, for claims arising from accidents resulting in bodily injury or death, requires that an insurer timely disclaim coverage or be estopped form doing so. Here, although FMIC issued a disclaimer letter to Mt. Hawley, it never sent the letter to Harco, and, although Mt. Hawley was acting on behalf of Harco when it sent notice of the occurrence to FMIC, “that did not make Mt. Hawley [Harco’s or 301-303’s] agent for all purposes, or for the specific purpose that is relevant here: receipt of a notice of disclaimer (citations omitted).” The court reasoned that Mt. Hawley’s interests were not necessarily the same as Harco’s in the litigation, and, because Harco had its own interests at stake, Harco was entitled to direct notice from FMIC under the statute.
The court found FMIC’s disclaimer as to 301-303 was effective, because FMIC had demonstrated that 301-303 was not an additional insured under the policy, and that “[a] disclaimer [under the statute] is unnecessary when a claim does not fall within the coverage terms of an insurance policy” (citations omitted).