In the latest development in the University’s effort to recoup up to $15 million in legal fees incurred over a nearly decade-long legal battle over its affirmative action policies, Harvard has sued its insurance broker, Marsh USA.
Harvard filed the suit on Wednesday in Suffolk County Superior Court, alleging that Marsh cost the University up to $15 million in legal fees by failing to notify Zurich American Insurance Company, one of Harvard’s insurers, of the affirmative action lawsuit within the appropriate time frame.
Harvard’s filing accuses Marsh of “breach of contract” and “tortious violations of the professional standard of care.” According to the suit, these caused Harvard to lose access to excess insurance coverage for defense costs and other affirmative action lawsuit-related expenses beyond the $27.5 million covered by its primary insurance provider, American Insurance Group.
The new lawsuit comes after Harvard unsuccessfully sued excess-cost insurer Zurich in September 2021 for $15 million. Harvard appealed the decision to the First Circuit Court of Appeals, which again sided with Zurich in August 2023.
According to the filing, the University claimed that it notified Marsh of the anti-affirmative action lawsuit brought by Students for Fair Admissions in a November 2014 email — one day after the group first sued Harvard in Massachusetts district court.
“In that November 18, 2014 email, which attached a copy of the complaint in the SFFA Action, Harvard requested that Marsh report the matter to AIG and for Marsh to provide an analysis as to coverage for the claim,” Wednesday’s filing states.
Harvard alleged it was unaware that Marsh had not notified Zurich of the SFFA suit until May 2017.
According to the filing, “upon learning this, Harvard immediately demanded that Marsh formally report the matter to Zurich and all of Harvard’s other excess insurers, which Marsh did by letter dated May 23, 2017.”
But since notice of the affirmative action lawsuit was not provided to Zurich until May 2017, well past the contractual three-month window, Harvard lost its ability to recoup excess costs, according to the suit.
Marsh had a “contractual and professional obligation to exercise and act upon its independent judgment as to which insurers should be placed on immediate notice and to then place those insurers on notice,” the filing continues.
Harvard spokesperson Jason A. Newton declined to comment on the lawsuit. A spokesperson for Marsh USA did not respond to a request for comment.
In June 2023, the Supreme Court ruled against Harvard in the high-profile lawsuit brought by SFFA over the College’s affirmative action practices. The Court also ruled against the University of North Carolina’s affirmative action policies on the same day.
The dual decisions effectively struck down race-conscious admissions practices in colleges and universities across the country.