Harvard’s E&O lawsuit against Marsh is premature, judge says

A federal judge in Boston on Thursday dismissed allegations by Harvard College that Marsh failed to timely notify an excess errors and omissions liability insurer of a November 2014 lawsuit filed by Students for Fair Admissions Inc.

The judge in President and Fellows of Harvard College v. Marsh USA Inc. applied New York’s six-year statute of limitations to the college’s October 2023 lawsuit and said the claims against the brokerage arose in January 2016.

Marsh obtained primary excess and first tier E&O policies from American International Group Inc. and Zurich for Harvard, based in Boston, and was also required to provide timely and adequate notice of claims to insurers.

In November 2014, Students for Fair Admissions Inc. sued Harvard, alleging that the college’s use of race-based affirmative action programs for admissions violated the Civil Rights Act of 1964. Harvard asked Marsh to notify AIG of the lawsuit, which it did, and AIG. agreed to cover the trial, court records show.

Marsh did not notify Zurich of the lawsuit until May 2017, and the insurer denied coverage due to late notification.

Harvard sued Marsh in Massachusetts state court in October 2023, asserting claims for breach of contract and broker malpractice. Marsh removed the suit to federal court in December 2023 and filed a motion to dismiss in January 2024.

The judge said New York law applied because the broker agreement contained a choice-of-law provision that said New York law would govern any dispute. The judge also said that the brokerage was based in New York and that the agreement was executed there.

A spokesman for Marsh declined to comment.

Harvard representatives did not respond to requests for comment.