In KVK-Tech, Inc. v. Navigators Specialty Ins. Co., Colleen Sorensen obtained a ruling that BatesCarey’s insurer client owed no coverage for an opioid public nuisance claim due to the insured’s failure to provide timely notice.

Opioid manufacturer KVK-Tech first became aware of opioid public nuisance claims against it in August 2017 and promptly provided notice to its primary insurer, Ironshore, under a claims-made and reported policy. KVK-Tech also notified other excess carriers of additional opioid lawsuits against it in June 2019. Although BatesCarey’s client, Navigators Specialty Insurance Company, was KVK-Tech’s excess insurer in 2017, KVK-Tech did not provide notice to Navigators until January 2020—three years after discovering the initial opioid public nuisance claim. Navigators subsequently denied coverage due to the late notice.

KVK-Tech argued that Ironshore determined it would batch the claims in 2016 before KVK-Tech knew the claims existed. The company stated that because it did not know about the claims in 2016, it was not possible to give prompt notice to Navigators. KVK-Tech added that it therefore provided notice to Navigators “as soon as practicable” as stated in Navigator’s policy language.

However, the U.S. District Court for the Southern District of Alabama disagreed with KVK-Tech’s argument and granted judgment to Navigators. Colleen’s skillful briefing persuaded the 11^th Circuit Court of Appeals to affirm the district court’s judgment, finding that KVK-Tech did not provide timely notice to Navigators and was not obligated to provide excess insurance coverage for the opioid lawsuits.