Ivy-league university loses 2nd time in same case!

By Bob Unruh

Harvard University
Harvard University

Harvard, spectacularly, has lost a second time in the same court case.

And this time it’s costing the school $15 million, or thereabouts.

The issue is the school’s recent loss in the Students For Fair Admissions case in which the Supreme Court struck down that school’s, and other schools’, race-based admissions ideology.

Now a report at Legal Insurrection reveals the 1s Circuit Court of Appeals has rejected a $15 million claim by Harvard against an insurance company for the legal fees it spent in fighting for the racist programs.

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The court said, in the school’s fight against Zurich American Insurance, “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….”

It continued to explain that the Massachusetts Supreme Judicial Court has spoken “directly to the critical issue,” so the appeals court must hold “that the failure to give notice according to the policy’s terms and conditions forfeits any right to coverage.”

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The students’ lawsuit charged the school with violating Title VI of the Civil Rights Act of 1964, and it took nearly a decade for the 2014 complaint to reach its conclusion at the high court.

Harvard did notify AIG of the pending action, and secured coverage under a primary policy.

But it “neglected” to notify Zurich of the suit until May 23, 2017, which, according to the report, was “well outside the excess policy’s ninety-day notification window.”

The result was that Zurich denied coverage under the excess policy, and the court has affirmed that decision.

The report explained, “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.”

But the court went even further, charging that Harvard’s arguments weren’t really legitimate.

The court said, “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.”

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