New Hampshire Requires Cooperation of Insured Individuals for Preservation of Claims

Insurance litigation is a constant tug-of-war between insurance companies and the insured. There is a lot of back-and-forth between the parties over paperwork and required documents. Clear and effective communication are key to any good business relationship. This process of working through a claim for an insured customer can become difficult when the insured becomes unwilling to provide the insurance company with the required documentation. That scenario is exactly what occurred in New Hampshire, so the Supreme Court of Nebraska stepped in to give guidance on this issue.


Brian Krol (Krol) and his family were injured in a motor vehicle accident in 2006.[1] The other driver was at fault, and also happened to be underinsured. Krol notified their insurer, Liberty Mutual Insurance Company (Liberty Mutual), in 2009 of their underinsured motorist claims. Liberty Mutual then quickly requested the medical records and bills required in order to properly adjust the claim. Liberty Mutual continually attempted for the next six years to obtain all required documentation from Krol relating to the incident, but Krol failed to provide the necessary documents.

Liberty Mutual eventually notified Krol on February 27, 2015, that they were closing the claims brought by Krol in 2009 based on a lack of communication. Six months after the claims were closed, Krol filed a petition for declaratory judgment.

Issue and Analysis

There are essentially four claims that Krol tries to argue in appealing the order of the Superior Court granting summary judgment in favor of Liberty Mutual. Krol attempts to argue: (1) that Liberty Mutual suffered no actual prejudice; (2) that Liberty Mutual failed to give prior notice of its intent to rely upon the policy’s cooperation clause; (3) that Liberty Mutual waived its rights to deny coverage; and (4) that Liberty Mutual failed to plead noncooperation as an affirmative defense.

  1. Liberty Mutual Suffered No Actual Prejudice

The court found that the trial court was correct in stating that Krol caused actual prejudice to be suffered by Liberty Mutual based on the lack of cooperation with the claims investigation. By failing to provide the requested documents or an authorization allowing Liberty Mutual to obtain the documents themselves, Krol prevented Liberty Mutual from fully completing the claims investigation. Further, by failing to assist in the investigation, Krol caused Liberty Mutual to expend significant time and resources in attempting to complete the investigation.

  1. Liberty Mutual Failed to Give Prior Notice of its Intent to Rely upon the Policy’s Cooperation Clause

The court found that Krol did not provide any authority to support this claim. Further, the court itself was not aware of any authority supporting this position.

  1. Liberty Mutual Waived its Rights to Deny Coverage

The court found that the record showed that that Liberty Mutual reserved its rights to deny coverage, as Krol would have had to establish that Liberty Mutual intended to forgo its coverage defenses. Krol failed to establish this.

  1. Liberty Mutual Failed to Plead Noncooperation as an Affirmative Defense

The court found that the trial court must have waived this issue as it did not address it. This was deemed proper as the trial court has broad discretion when waiving its rules.


The court affirmed the grant of summary judgment in favor of Liberty Mutual and granted Liberty Mutual’s motion to strike portions of Krol’s brief relating to the parties’ participation in mediation.


The takeaway from this case is documentation and communication. This applies to insurers as well as the insured. In this instance, Liberty Mutual was found to have followed the proper procedures on their end while Krol did not. Liberty Mutual continuously communicated its need for the required documents to Krol, who did not respond. When dealing with clients that fail to respond to requests, make sure to create a paper trail that documents each and every instance of attempted outreach to the client. Liberty Mutual serves as a great example here of how to balance a situation like this; they attempted to serve their client, while also protecting their own interests. These business relationships are a two-way street, and both parties need to uphold their end of the bargain for the relationship to thrive.

[1] Brian J. Krol, et al. v. Liberty Mutual Ins. Co., Case No. 2016-0607, 2017 WL 4341418 (N.H. Sup. Ct. Aug. 11, 2017).