Insureds Try Creative Analysis of Policy and Fail

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Day Kimball Healthcare, Inc. and Erica J. Kesselman appealed from the judgment of the United States District Court for the District of Connecticut (Dooley, J.) dismissing their complaint that sought a declaratory judgment directing Allied World Surplus Lines Insurance Company and Steadfast Insurance Company to indemnify plaintiffs pursuant to their respective insurance policies in connection with an underlying medical malpractice lawsuit. In Day Kimball Healthcare, Inc., Erica J. Kesselman, M.D. v. Allied World Surplus Lines Insurance Company, Fka Darwin Select Insurance Company, Steadfast Insurance Company, No. 20-3803-cv, United States Court of Appeals, Second Circuit (August 27, 2021) the Second Circuit Refused to rewrite a policy to provide coverage for slothful insureds.

ZALMA OPINION

Although creativity in litigation and coverage analysis is to be commended it should not be honored when, as in this case, it should be sanctioned and the Second Circuit should be honored for not falling for the attempt to change a employee benefit coverage into a malpractice defense and indemnity coverage. Creativity is one thing. Trying to escape the insureds’ own sloth and change a coverage from what it was clearly intended to do into something else is ridiculous.