A panel of three federal judges appeared skeptical of Harvard’s claim that Zurich American Insurance Company is responsible for covering the University’s remaining legal expenses during a hearing Wednesday.
Harvard’s insurance attorney Marshall Gilinsky argued before the United States First Circuit Court of Appeals that Zurich — the University’s secondary insurance company — was obligated to cover millions of dollars of legal expenses from the anti-affirmative lawsuit brought by Students for Fair Admissions.
While Harvard notified its primary insurance company — American International Group — shortly after SFFA brought the lawsuit in 2014, the University did not formally report the case to Zurich until more than a year after the deadline had passed.
Zurich refused to pay the school’s defense fees from the anti-affirmative action lawsuit on the grounds that the University did not provide proper notice to the insurance firm. Though the complaint does not specify how much the University is requesting Zurich pay, Harvard had a policy with the insurance company worth up to $15 million.
In its initial 2021 suit, Harvard argued that Zurich knew of the lawsuit during the policy period due to the significant media attention garnered by the case.
The University’s excess policy with Zurich had a “claims-made-and-reported” provision that covered claims made from Nov. 1, 2014 to Nov. 1, 2015. The insurance company required notice no later than 90 days after the policy period’s end — or no later than Jan. 30, 2016. Harvard did not give Zurich formal notice until May 2017.
According to Harvard’s brief filed with the Massachusetts District Court, Harvard exceeded the $25 million limit and $2.5 million deductible it held with AIG before seeking coverage from Zurich.
During Wednesday’s hearing, however, one of the judges, Bruce M. Selya ’55, referenced Massachusetts Supreme Judicial Court precedent that formal claims must be filed before their deadline under state law.
Judge William J. Kayatta Jr. was also skeptical of Harvard’s claim.
“Looking at a case that has a general rule and then saying that, well, ‘This circumstance is factually different, so the general rule doesn’t apply,’” Kayatta said. “That’s a bit of a reach when we’re looking at state law, and you’ve chosen to bring it in the federal court, where our job isn’t to create new state law.”
In November, U.S. District Court Judge Allison D. Burroughs ruled that Harvard’s failure to satisfy Zurich’s policy requirements by filing a claim before the deadline prevented the University from accessing its policy.
Zurich’s attorney Andrew L. Margulis declined to comment, citing pending litigation. Harvard spokesperson Rachael Dane did not respond to a request for comment.
The University first sued Zurich in September 2021 for coverage for legal fees from the 2014 anti-affirmative action lawsuit and a 2017 Department of Justice probe into the University’s race-conscious admissions process.
SFFA’s lawsuit alleges that Harvard’s race-conscious admissions system discriminates against Asian American prospective students and violates Title VI of the Civil Rights Act of 1964.
The Supreme Court is expected to issue its ruling in SFFA v. Harvard later this month, with legal experts and scholars widely anticipating the Court will side with SFFA and overturn race-conscious admissions in higher education.