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Harvard Loses $15 Million Insurance Claim For Legal Fees In Famous Race Discrimination Case, Appeals Ct Calls Arguments “Gaslighting”

Harvard Loses $15 Million Insurance Claim For Legal Fees In Famous Race Discrimination Case, Appeals Ct Calls Arguments “Gaslighting”

What is happening here? First it was Oberlin College, now Harvard, where I’m rooting for insurance companies. First Circuit Court of Appeals finds Harvard failed to comply with claims notice requirement of insurance policy, and its main argument was “little more than gaslighting.”

Oh man, if this keeps up, I might stop hating insurance companies. The enemy of my enemy is my friend.

First, we find out insurance companies are refusing to reimburse Oberlin College for the $36 million it had to pay Gibson’s Bakery,Oberlin College Sues Insurers For Refusing To Cover $36 Million It Paid Gibson’s Bakery For Defamation And Other Torts (Update)

Now, the First Circuit just rejected a $15 million insurance claim by Harvard University against its insurance company for legal fees incurred in defending the Students For Fair Admissions case that ended up with a sweeping defeat for Harvard (and win for equality and equal protection) in the Supreme Court.

From the Opinion in Harvard University v. Zurich American Insurance Co.:

With $15,000,000 in coverage at stake, this case requires us to apply Massachusetts law to determine the effect of a failure to give notice as specified in an excess insurance policy affording coverage on a “claims made and reported” basis. Where, as here, a federal court sits in diversity jurisdiction, tasked with following state law, it is not free to innovate but, rather, must apply state substantive rules of decision as those rules have been articulated by the state’s highest tribunal….

In this instance, the Massachusetts Supreme Judicial Court (SJC) has spoken directly to the critical issue…. Staying within the borders of this well-beaten path, we hold that the failure to give notice according to the policy’s terms and conditions forfeits any right to coverage. Consequently, we affirm the district court’s entry of summary judgment in favor of the insurer….

On November 17, 2014, an organization known as Students for Fair Admissions sued Harvard in federal court for violating Title VI of the Civil Rights Act of 1964. What followed was a legal odyssey that spanned nearly a decade and culminated in proceedings before the Supreme Court….

On November 19, 2014 — in anticipation of the legal costs to come — Harvard notified AIG of the pending suit, thereby securing coverage under the primary policy. Harvard neglected, though, to notify Zurich of the suit until May 23, 2017 — well outside the excess policy’s ninety-day notification window. Consequently, Zurich denied coverage under the excess policy on the ground that Harvard had failed to furnish timely notice….

In Massachusetts, notice provisions of claims-made policies — which require that notice of a claim be given by the end of the policy period or a defined period ending shortly thereafter — are of the essence of those policies…. Under Massachusetts law, then, an insurer is not required to show prejudice before denying coverage due to an insured’s failure to comply with the notice requirement of a claims-made policy….

The parties do not dispute that Harvard purchased a claims-made policy from Zurich. Nor do they dispute that Harvard failed to provide Zurich with written notice until May of 2017 — long after the deadline stipulated in the policy had passed. Consequently, Zurich had every right to deny coverage based on a lack of timely notice.

Seemed pretty open and shut. Harvard screwed up. But wait, Harvard thought it could talk its way out of its own blunder, but the court was having none of it, accusing Harvard of “gaslighting” (emphasis added):

In Harvard’s view, the SJC’s holding in Chas. T. Main does not apply to circumstances in which an insurer has actual notice of a claim and can use that information to set its rates, notwithstanding the insured’s failure to comply with the policy’s notice requirement. But this is little more than gaslighting. Arguing that the policy’s notice requirement should not be enforced because Zurich may have had actual notice of the claim is simply another way of arguing that Zurich was not prejudiced by the lack of timely written notice. To honor such an argument would impermissibly collapse the critical distinction that the SJC has made between occurrence-based and claims-made policies.

The Court then went on to reject other Harvard attempt to squirm out of it’s predicament, such as the asserting raised (improperly) for the first time on appeal that the notification provisions of the policy were ambiguous or that this was such an extraordinary case of such great public importance that the normal rules should not apply.

First Oberlin, then Harvard. Rooting for two insurance companies in the same week.

Mark this down and bookmark it, because by next week I may go back to hating insurance companies.


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Excellent. The only thing better would be if administrators had to pay verdicts rather than the school when they lose verdicts for discrimination.

You would think Harvard could scrounge up a decent lawyer who could read the insurance conditions..

    henrybowman in reply to Whitewall. | August 11, 2023 at 6:33 pm

    Unfortunately, there are no good law schools in the area to generate any.

      The Gentle Grizzly in reply to henrybowman. | August 11, 2023 at 7:46 pm


        Just got the JC school newsletter. I was SHOCKED. They are trying to make a safe and welcoming space in the library for ……. gasp…. wait for it……teens!!!!

        After 6 years of newsletters about getting weekly letters about this and that marginalized group representing 0.0000001% of the entire school district… you can just feel the PTSD melt away. Damn I love TN.

      Ghostrider in reply to henrybowman. | August 12, 2023 at 8:12 am

      Since the passing of Professor Charles W. Kingsfield Jr. (played by John Houseman) in 1988, many have noticed a decline in the use of the Socratic Method of instruction and the appeal of Harvard Law School. A lot of people believe that progressives often promise to improve things but end up causing more harm than good. They tend to embrace change for the sake of change without taking responsibility for their mistakes.

      Moving forward, it remains to be seen whether US News & World Report will downgrade Harvard Law School based on the outcome of this case. The case was not entirely lost due to a lack of legal merit but rather due to the arrogance and hubris of certain faculty and over confident administrators at Harvard.

        Whitewall in reply to Ghostrider. | August 12, 2023 at 9:21 am

        Change for the sake of change, or, Chesterton’s Fence:
        “There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

      I thought I had won, but damn. LI commenters bring it. Just saying.

    chrisboltssr in reply to Whitewall. | August 11, 2023 at 8:17 pm

    When you’re in the business of indoctrination it is in your interest to not have people read too much.

    Insufficiently Sensitive in reply to Whitewall. | August 17, 2023 at 11:02 am

    It’s normally a competent clerk who fulfills that lowly function. And I’ll bet there was one when the contract was signed, but after the glamorous media-fawning began over the SFFA began, they were so entranced by their media coverage that they forgot to replace that clerk when he took leave for the installation of a vagina.

Oberlin hasn’t lost the insurance lawsuit yet, has it?

    Lucifer Morningstar in reply to RandomCrank. | August 11, 2023 at 7:15 pm

    Yes, they have. Oberlin lost and have to pay $36 million. Of course, Oberlin’s insurance company is refusing to pay that amount. Can’t remember why, exactly. But Oberlin now faces the unappealing situation where they might have to dig into their own money to pay off the judgement notwithstanding what their insurance company does.

      chrisboltssr in reply to Lucifer Morningstar. | August 11, 2023 at 8:21 pm

      Oberlin’s insurers are refusing to pay because they allege the limits have been exhausted and because the type of injury Oberlin caused to the bakery that it was specifically excluded from coverage. So Oberlin is suing them to say a) they had adequate coverage to cover the potential loss and b) that their claim should be covered because that is why they bought the insurance.

      We shall see if a judge buys their arguments.

        Oberlin’s insurers will not only NOT pay, they will double their rates for the attempt to make the claim and the loss in the litigation.

        This has likely been the case for the duration of the case, but they will never share those numbers…. they are not insignificant.

          chrisboltssr in reply to Andy. | August 11, 2023 at 11:37 pm

          I doubt the insurers and Oberlin will stay in business. Regardless of the outcome, Oberlin will more than likely shop the account because the well has been poisoned by them.

          Andy in reply to Andy. | August 12, 2023 at 11:44 am

          yeah- shopping it … AFTER a claim and after litigation.

          that will be cheap.

          I had a shot at writing a retirement community / RV resort / park model etc that had a claim due to losing a lawsuit for a trip and fall (door ingress was 1/8 of inch over code. In the course of that incident- they had to jack their dues by 10% just to cover the insurance- and that wasn’t the end of it.

          The underwriters see what they’ve done- they’re going to research this- they will recognized this organization intended to us their insurance back stop. It’s the Moral / Morale Hazard aspect. You have customers who will do anything to avoid filing a claim and customers who use their insurance like it’s an ATM to dip into.

          That’s how I see the shopping going.

      RandomCrank in reply to Lucifer Morningstar. | August 12, 2023 at 7:50 am

      Oberlin lost the defamation lawsuit. Now they’re suing their insurers to pay for it. That case hasn’t gone to a jury. Don’t be so lazy.

DeweyEyedMoonCalf | August 11, 2023 at 6:48 pm

Maxim 29 “The enemy of my enemy is my enemy’s enemy. No more. No less.”

Lucifer Morningstar | August 11, 2023 at 7:12 pm

BWHAHAHAHAHAHA . . . snicker . . . snort . . . deep breath . . .

Sorry, couldn’t help myself there.

Wow. That’s all I have to say after reading the full decision from the U.S Court of Appeals (1st Circuit). Harvard got its own ass handed to them well and truly in that decision. You’d think Harvard would have better lawyers but evidently not. Every argument they made was shot down by the Judge. And not politely.

Would be nice to think that now that these liberal institutions of higher learning (snicker) are going to have to pony up significant amounts of their own cash and not depend on their insurance carriers to pay for their shenanigans they’ll think twice before pulling such stunts. But I doubt it.

Almost begs for a TV series “Life Outside the Bubble” where people like us discuss these incidents and cases from a perspective of living and functioning in the real world on a daily basis. That could then be contrasted against the perceptions and arguments that they generate to rationalize their behavior.

Harvard thought they too clever. All policies have a timely notice clause within them to protect the insurer from potential fraudulent claims, However, because claims made policies are built to only cover claims that were made and reported during coverage period, that timely notice clause is even more stringent. In addition, if the policy lapses or is canceled for any reason, there is usually a small resorting period provided so that insureds can report claims that may not have been reported timely while the policy was in effect. That’s why in claims made policies, insurers highly recommend insureds by what’s called an extended reporting period so that they can report claims will being when a policy lapses or is canceled.

Doesn’t seem Harvard is too smart, after all.

    jakebizlaw in reply to chrisboltssr. | August 11, 2023 at 9:23 pm

    From experience when I left my own practice to join a firm, the 8K paid for a tail to my claims-made professional liability policy proved to be one of the best investments in my life, paying for the defense of 2 bogus suits by former adversaries and one bogus counterclaim to an action to collect fees.

Considering the size of their endowment this is a drop in the proverbial bucket.

    Ghostrider in reply to Ruckweiler. | August 12, 2023 at 8:22 am

    I wonder what Harvard’s auditors will say about using funds from their endowment to cover legal fees and judgments. It seems like operating expenses and should be viewed as a direct charge to income.

    Lucifer Morningstar in reply to Ruckweiler. | August 12, 2023 at 1:42 pm

    Considering the size of their endowment this is a drop in the proverbial bucket.

    True. But it must be a real thorn in their side that they’re going to have to come up with $15 million of their own money to pay off the judgement and the legal expenses of the plaintiff and they can’t depend on their insurance to cover for their shenanigans.

15 mil is nothing to Harvard.

I’m an insurance producer and I hate them with a passion, but this is like watching a homeless knifing a liberal who interrupted them sawing off the catalytic converter from their Prius with a coexist sticker outside of an abortion clinic in Portland. There’s just so much karma at work here I can’t help but take a picture so it lasts longer.

Your only seeing half of the story…. refer to Better Call Saul when Jimmy ratted out his brother to his insurance company.


Like double. On everything. They will likely get non-renewed.

I was going to post the same comment, but you beat me to it.

E Howard Hunt | August 12, 2023 at 6:46 am

Depending on how its policies were placed and the relevant actions, conversations and correspondence, the college might have a case against its insurance agency or advisor. If this be the case, that entity’s insurer could be on the hook. If so, it would behoove such an intermediary to provide timely notification. Ironically, a case could be made that that time has also already passed.

It is so unexpected for the First Circuit to miss an opportunity to carry water for its fellow travelers at Harvard. Aren’t the First Circuit justices concerned that the woke-enforcers will cancel or dox them?

    great unknown in reply to Q. | August 14, 2023 at 10:20 am

    one gets the impression, from the opening of the opinion, that they would indeed have loved to support Harvard [by misapplying some federal law, no doubt] – but that, sadly, they were constrained to strictly follow Massachusetts law.

Haahvard’s argument represents such obnoxious arrogance. In so many words — “We don’t have to comply with an insurance contract’s clearly-stated notice provisions, because we’re Haahvard; we’re special!”

Insurance companies might be our new hero in the DEI, CRT and “Gender Affirming Care” especially to minors.

Big institutions have these policies for liability. Insurance companies assess the risk. With SCOTUS opinions and these institutions publicly stating how they will attempt to get around them, an insurance actuarial should charge more.

Can you imagine the malpractice insurance claims in 10 years when some doctor castrated a child?

    chrisboltssr in reply to 1073. | August 12, 2023 at 3:43 pm

    With regards to medical malpractice coverage, if I were an insurer I would include exclusions specifically excluding coverage for any genital mutilation or anything associated with “treating” gender dysphoria or, if they don’t exist, create then ASAP. Those claims are going to be such a clusterfark when this social contagion of transgenderism wears off.

      drsamherman in reply to chrisboltssr. | August 14, 2023 at 1:48 pm

      Most of the medical malpractice coverage for “gender affirming care” is actually self-insured, largely because the major insurers don’t want anything to do with it at all. Same for some forms of cosmetic surgery and certain other “experimental” or “high-risk” procedures. Even then, I’m told that the self-insured plans have great difficulty getting reinsurance in that market.

Richard Aubrey | August 12, 2023 at 9:01 pm

The state insurttance commission tells you what can be in, or not in, a policy..
It’s possible a policy can have a rider for gender messing-up, for an additional premium. Take it and work in that field, paying the extra premium, or don’t, and stay out of that field.

    chrisboltssr in reply to Richard Aubrey. | August 13, 2023 at 1:08 pm

    To a certain extent that is true. A DOI can deny what language can be included so long as the language runs afoul of state law. In most instances, state law doesn’t allow an insurer to discriminate based on some civil right characteristic. In this particular instance, the insurer is not denying coverage for a particular civil right characteristic, but is denying coverage for a the outcome of a particular type of surgery. I don’t see any DOI that would deny that language from being allowed in a liability policy. We’re going to start seeing a rash of lawsuits against medical practitioners soon for engaging in blatant med mal that I don’t think any insurer is going to want that smoke.

Says a lot about Harvard Law. Too ignorant to know how to file an insurance claim, Where’s the Professor who teaches insurance??

great unknown | August 14, 2023 at 10:21 am

I wonder if they have coverage for the legal fees for this futile appeal. And so ad infinitum.

I wonder if they used external counsel who went to Yale instead……

WildernessLawyer | August 17, 2023 at 9:02 am

The fact that Harvard is pursuing this claim means that it incurred more than $15 million in legal fees defending its illegal affirmative action admissions program. That’s an eye opener.

Insufficiently Sensitive | August 17, 2023 at 10:58 am

Nor do they dispute that Harvard failed to provide Zurich with written notice until May of 2017 — long after the deadline

Seems like Harvard has canned all their nuts-and-bolts lawyers and administrators, and concentrated their firepower on flashy, theatrical advocacy of leftist governance without any reference to that steenkin’ US Constitution, nor even reference to the terms of the contracts they sign.

Serves ’em right.