{"id":3515,"date":"2026-01-13T05:48:59","date_gmt":"2026-01-13T05:48:59","guid":{"rendered":"https:\/\/www.insuracarelife.com\/blog\/a-tale-of-two-timelines-eleventh-circuit-rejects-claimants-attempt-to-rewrite-occurrence-notice-condition-robinson-cole-llp\/"},"modified":"2026-01-15T17:32:52","modified_gmt":"2026-01-15T17:32:52","slug":"a-tale-of-two-timelines-eleventh-circuit-rejects-claimants-attempt-to-rewrite-occurrence-notice-condition-robinson-cole-llp","status":"publish","type":"post","link":"https:\/\/www.insuracarelife.com\/blog\/a-tale-of-two-timelines-eleventh-circuit-rejects-claimants-attempt-to-rewrite-occurrence-notice-condition-robinson-cole-llp\/","title":{"rendered":"A Tale of Two Timelines \u2013 Eleventh Circuit Rejects Claimant\u2019s Attempt to Rewrite Occurrence Notice Condition | Robinson & Cole LLP"},"content":{"rendered":"
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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<\/em>, \u2014 F.4th \u2014, 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.<\/p>\n

The Occurrence & Underlying Lawsuits<\/strong><\/p>\n

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.<\/p>\n

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 \u201ccopy of all insurance policies in force in effect\u201d at the time of the occurrence. On September 25, 2018, it was disclosed that Barrow was insured by Nationwide. A.B.\u2019s attorney thereafter served a subpoena on Nationwide on November 9, 2018, requesting the production of the relevant policies, which were produced in January 2019, \u00a0including the operative umbrella liability policy in effect in or about late 2013.<\/p>\n

The Policy\u2019s \u201cPolicy Conditions\u201d section provided:<\/p>\n

4. Notice<\/strong>.\u00a0You<\/strong>\u00a0or someone on\u00a0your<\/strong>\u00a0behalf must:<\/p>\n

(a) as soon as reasonably possible, give\u00a0us<\/strong>,\u00a0our<\/strong>\u00a0agent or sales representative written notice of an\u00a0occurrence<\/strong>\u00a0to which this policy may apply.<\/p>\n

(b) promptly give\u00a0us<\/strong>\u00a0all legal papers or reports relating to the\u00a0occurrence<\/strong>\u00a0when a claim or suit is filed against an\u00a0insured<\/strong>.<\/p>\n

The policy defined \u201cyou\u201d and \u201cyour\u201d to mean \u201cthe first named\u00a0insured<\/strong>\u00a0shown on the Declarations,\u201d which in this case was Barrow. It also defined \u201coccurrence\u201d to include incidents resulting in \u201cpersonal injury<\/strong>\u00a0caused by an\u00a0insured<\/strong>\u00a0\u2026 during the policy period.\u201d \u201cPersonal injury\u201d was defined to include \u201cinvasion of rights of privacy.\u201d<\/p>\n

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.<\/p>\n

Subsequent Direct Action<\/strong><\/p>\n

In July 2022, following the entry of judgment and Barrow\u2019s failure to pay the judgment, A.B. sued Nationwide and Barrow in state court under Alabama\u2019s direct action statute, which permits prevailing plaintiffs to sue the judgment debtor\u2019s insurer directly. Nationwide removed the action to federal court and moved for summary judgment on the ground that \u201cneither Barrow nor A.B. notified Nationwide of its potential duty to indemnify in the time required by the umbrella policy\u201d given the 58-month lapse between Barrow\u2019s conduct (which constituted the occurrence) and the November 2018 subpoena, which the parties agreed constituted constructive notice. The federal district court granted Nationwide\u2019s motion for summary judgment and A.B. appealed to the Eleventh Circuit.<\/p>\n

Eleventh Circuit Result<\/strong><\/p>\n

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 \u201con [Barrow\u2019s] behalf\u201d under the notice condition of the Policy. Nationwide contended that traditional agency principes define \u201con behalf of\u201d to mean \u201cas an agent of.\u201d While the Eleventh Circuit agreed that this was the traditional interpretation and that \u201con behalf of\u201d traditionally meant \u201cfor the benefit of,\u201d 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.\u2019s position that she, through her attorney, could give notice on behalf of Barrow as that is the common everyday interpretation.<\/p>\n

After holding that the language of the Nationwide policy\u2019s 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<\/em>, 86 So. 3d 338, 342 (Ala. 2011). Prejudice is irrelevant. Id<\/em>.<\/p>\n

The Eleventh Circuit explained that \u201c[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.\u201d From A.B.\u2019s perspective, A.B.\u2019s attorney acted with reasonable promptness under the circumstances.\u00a0 From Nationwide\u2019s 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 \u201cBarrow did not receive or understand the policy, or that he was otherwise excused from giving notice.\u201d<\/p>\n

The Eleventh Circuit held that the notice provision was properly interpreted from Nationwide\u2019s perspective, which focused on the insured, because otherwise the disjunctive \u201cor\u201d between \u201cyou\u201d or \u201csomeone on your behalf\u201d in the Policy\u2019s notice condition would be detached from \u201cthe policy\u2019s single timing requirement and create two different notice deadlines.\u201d Put differently, the Policy \u201callows notice from someone other than Barrow; it does not reset the notice clock for that person.\u201d The Eleventh Circuit further reasoned that if it were to accept A.B.\u2019s alternative interpretation, third-party claimants would \u201cobtain greater rights\u201d 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 \u201cnot free to rewrite the contract to reach a different result,\u201d and the grant of summary judgment for Nationwide was affirmed.<\/p>\n

Looking Ahead<\/strong><\/p>\n

As with any coverage analysis, words and grammar matter. It is therefore important to analyze whether a third party claimant\u2019s \u2013 or an insured\u2019s \u2013 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.<\/p>\n

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