New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
ONE COMMERCE PLAZA
ALBANY, NEW YORK 12257

Eliot Spitzer
Governor

Eric R. Dinallo
Superintendent

The Office of General Counsel issued the following opinion on January 25, 2008, representing the position of the New York State Insurance Department.

Re: Lawyers’ Professional Liability Policies

Questions Presented:

1. Does the Insurance Department have jurisdiction over the terms and conditions of a lawyer’s professional liability policies?

2. If so, are all such policies required to cover a lawyer’s service as a Housing Court-appointed Guardian Ad Litem pursuant to Article 12 of the New York Civil Practice Law and Rules (CPLR)?

Conclusions:

1. Yes. Under N.Y. Ins. Law § 2307(b) (McKinney Supp. 2008), which applies to most property/casualty forms, no policy form shall be delivered or issued for delivery without it first being filed with the Superintendent, after which he either approved it or 30 days elapsed without his disapproval as misleading or violative of public policy.

2. No. The Insurance Department does not generally dictate the scope of coverage afforded to lawyers under professional liability policies.

Facts:

The inquiry is of a general nature, without reference to particular facts.

Analysis:

The inquirer asks whether the Department has jurisdiction over the terms and conditions of lawyers’ professional liability policies. N.Y. Insurance law § 2307(b), which requires authorized insurers to file most property/casualty policy forms with the Superintendent for approval, answers the question. That statute reads in relevant part as follows:

(b) Except as otherwise provided herein, no policy form shall be delivered or issued for delivery unless it has been filed with the Superintendent and either he has approved it, or thirty days have elapsed and he has not disapproved it as misleading or violative of public policy.

The inquirer also asks whether all lawyer’s professional liability policies are required to cover a lawyer’s service as a Housing Court-appointed Guardian Ad Litem pursuant to CPLR Article 12. The Insurance Law and regulations thereunder do not generally dictate the scope of coverage afforded to professionals under lawyer’s professional liability insurance policies. The extent of coverages are governed by the individual insurance policy declarations, definitions, insuring agreements, exclusions, conditions, and any other provisions contained therein. Such coverages also are subject in all cases to the Superintendent’s conclusion that the policy is not misleading nor against public policy. In order to determine whether services such as Housing Court-appointed Guardian Ad Litem would be covered, the specific policy provisions must be reviewed by the policyholder.

For further information you may contact Special Counsel Athan M. Shinas at the Albany Office.