Occurrence-based liability policies often include a condition that requires the insured, or someone on their behalf, to provide a carrier prompt notice of the occurrence. Delays in reporting a claim can potentially provide a carrier with a late notice defense. The viability of this defense can turn on whether timeliness is evaluated from the perspective of a named insured or a claimant, as a claimant in A.B. v. Barrow, — F.4th —, 2026 WL 40906 (11th Cir. Jan. 7, 2026), found out when the Eleventh Circuit rejected an attempt to rewrite the notice condition to obtain coverage for a $10 million verdict.
The Occurrence & Underlying Lawsuits
When the claimant/plaintiff, A.B., was ten years old, she was allegedly sexually exploited by her mother and David Barrow in or about late 2013.
In February 2018, A.B. filed a lawsuit against Barrow in Alabama alleging that Barrow invaded her privacy. While the privacy invasion action was underway, A.B. filed a separate lawsuit against Barrow and his wife in February 2018 pursuant to the Alabama Fraudulent Transfer Act. During discovery in this suit, A.B., through her attorney, requested a “copy of all insurance policies in force in effect” at the time of the occurrence. On September 25, 2018, it was disclosed that Barrow was insured by Nationwide. A.B.’s attorney thereafter served a subpoena on Nationwide on November 9, 2018, requesting the production of the relevant policies, which were produced in January 2019, including the operative umbrella liability policy in effect in or about late 2013.
The Policy’s “Policy Conditions” section provided:
4. Notice. You or someone on your behalf must:
(a) as soon as reasonably possible, give us, our agent or sales representative written notice of an occurrence to which this policy may apply.
(b) promptly give us all legal papers or reports relating to the occurrence when a claim or suit is filed against an insured.
The policy defined “you” and “your” to mean “the first named insured shown on the Declarations,” which in this case was Barrow. It also defined “occurrence” to include incidents resulting in “personal injury caused by an insured … during the policy period.” “Personal injury” was defined to include “invasion of rights of privacy.”
In July 2019, Nationwide retained counsel to defend Barrow as its insured in the Privacy Invasion Action. The Alabama state court held a bench trial and ruled in favor of A.B. by awarding $4 million in compensatory damages and $6 million in punitive damages, for a total verdict of $10 million.
Subsequent Direct Action
In July 2022, following the entry of judgment and Barrow’s failure to pay the judgment, A.B. sued Nationwide and Barrow in state court under Alabama’s direct action statute, which permits prevailing plaintiffs to sue the judgment debtor’s insurer directly. Nationwide removed the action to federal court and moved for summary judgment on the ground that “neither Barrow nor A.B. notified Nationwide of its potential duty to indemnify in the time required by the umbrella policy” given the 58-month lapse between Barrow’s conduct (which constituted the occurrence) and the November 2018 subpoena, which the parties agreed constituted constructive notice. The federal district court granted Nationwide’s motion for summary judgment and A.B. appealed to the Eleventh Circuit.
Eleventh Circuit Result
The Eleventh Circuit first turned to the issue of whether A.B. or her attorney could give Nationwide notice of the alleged occurrence as the parties disagreed whether the service of the subpoena constituted the provision of notice “on [Barrow’s] behalf” under the notice condition of the Policy. Nationwide contended that traditional agency principes define “on behalf of” to mean “as an agent of.” While the Eleventh Circuit agreed that this was the traditional interpretation and that “on behalf of” traditionally meant “for the benefit of,” it noted that the meanings of both phrases have changed such that both phrases are used interchangeably. Given this linguistic evolution as reflected in modern dictionaries and usage guides, the Eleventh Circuit adopted A.B.’s position that she, through her attorney, could give notice on behalf of Barrow as that is the common everyday interpretation.
After holding that the language of the Nationwide policy’s notice provision and Alabama law authorize a claimant/injured party or their attorney to give notice to the insurer, the Eleventh Circuit turned to the dispositive late notice issue. Alabama law only permits the consideration of two factors: the length of the delay and the reasons for the delay. Travelers Indem. Co. of Connecticut v. Miller, 86 So. 3d 338, 342 (Ala. 2011). Prejudice is irrelevant. Id.
The Eleventh Circuit explained that “[w]hether Nationwide received timely notice under its policy depends on whether [one] evaluate[s] timeliness from the perspective of A.B. as the injured party or instead from the perspective of Barrow as the insured.” From A.B.’s perspective, A.B.’s attorney acted with reasonable promptness under the circumstances. From Nationwide’s perspective, Barrow, as the insured, was presumed to be familiar with when his own alleged conduct reportedly occurred, as well as the provisions of his policy and nothing in the record suggested that “Barrow did not receive or understand the policy, or that he was otherwise excused from giving notice.”
The Eleventh Circuit held that the notice provision was properly interpreted from Nationwide’s perspective, which focused on the insured, because otherwise the disjunctive “or” between “you” or “someone on your behalf” in the Policy’s notice condition would be detached from “the policy’s single timing requirement and create two different notice deadlines.” Put differently, the Policy “allows notice from someone other than Barrow; it does not reset the notice clock for that person.” The Eleventh Circuit further reasoned that if it were to accept A.B.’s alternative interpretation, third-party claimants would “obtain greater rights” than the named insured. Since there was no evidence of any valid excuse for the approximate 58-month delay between late 2013 and November 2018, the Court was “not free to rewrite the contract to reach a different result,” and the grant of summary judgment for Nationwide was affirmed.
Looking Ahead
As with any coverage analysis, words and grammar matter. It is therefore important to analyze whether a third party claimant’s – or an insured’s – coverage position is an attempt to rewrite the conditions of the contract. Pointing out such attempts to the court may be persuasive not only in jurisdictions that have strict notice condition analytical requirements, such as Alabama, but also in jurisdictions that require prejudice. It is also important to demonstrate to a court that a third-party claimant (who essentially stands in the shoes of the insured by bringing a direct action) should not have greater rights that the insured themselves as that could render an otherwise valid condition impermissibly written out of a policy.
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