Travelers Indem. Co. v. Miller, 86 So. 3d 338 (Ala. 2011) (Prejudice to the insurer based on such a delay in providing notice is not a factor. Instead, it is the reasonableness of the delay that determines whether notice of the occurrence or claim was given to the insurer within a reasonable time).

Webb v. Zurich Ins. Co., 200 F.3d 759 (11th Cir. 2000) (applying Alabama law) (The Supreme Court of Alabama has interpreted “as soon as practicable” “to mean that ‘notice must be given within a reasonable time in view of the facts and circumstances of the case’”).

But See Midwest Employers Casualty Co. v. East Alabama Health Care, 695 So. 2d 1169 (Ala. 1997) (The notice prejudice rule applies to excess insurers. Therefore, even if the delay was found to be unreasonable, an excess insurer cannot disclaim liability under Alabama law for an insured’s violation of policy’s notice provisions unless the excess insurer can show that the delay caused prejudice).

Lindus v. Northern Ins. Co., 103 Ariz. 160 (1968) (adopting the rule “that an insurance company cannot prevail on its defense of lack of notice unless they can show prejudice, even where notice is made an express condition precedent in the policy.”).

11333 Inc. v. Certain Underwriters at Lloyd’s London, No. CV-14-02001-PHX-NVW, 2015 WL 1578501 (D. Ariz. Apr. 9, 2015) (An insurer which seeks to avoid liability on ground that it was prejudiced by insured's failure to give notice has burden of proving prejudice).

Campbell v. Allstate Ins. Co., 60 Cal. 2d 303, 305 (1963) (en banc) (citations omitted) (“breach cannot be a valid defense unless the insurer was substantially prejudiced thereby…”).

Safeco Ins. Co. of Am. V. Parks, 170 Cal. App. 4th 992, 1003-1004 (2009) (“An insured’s failure to comply with the notice or claims provisions in an insurance policy will not excuse the insurer's obligations under the policy unless the insurer proves it was substantially prejudiced by the late notice.”).

Arrowood Indem. Co. v. King, 304 Conn. 179, 198 (2012) (Under Connecticut law, two conditions must be “satisfied before an insurer's duties can be discharged pursuant to the ‘notice’ provision of a policy: (1) an unexcused, unreasonable delay in notification by the insured; and (2) resulting material prejudice to the insurer”).

Greater N.Y. Mut. Ins. Co. v. Robbins Eye Ctr. P.C., No. 3:19-CV-01741 (MPS), 2022 WL 867761, at *13 (D. Conn. Mar. 23, 2022) citing Arrowhead, 304 Conn. at 201 (the “insurer bears the burden of proving, by a preponderance of evidence, that it has been prejudiced by the insured’s failure to comply with a notice provision.”).

Travelers Indem. Co. of Illinois v. United Food & Commercial Workers Int’l Union, 770 A.2d 978, 991 (D.C. 2001) (citations omitted) (asserting that notice provisions guarantee that the insurer is able “to make prompt investigation and prepare to defend any action that may be brought” when a “policy expressly makes compliance with its terms a condition precedent to liability …, failure to comply with the notice provision will release the insurer of liability.”).

Hartford Ins. Group v. Liberty Mut. Ins. Co., 311 A.2d 506 (D.C. 1973) (Prejudice to insurer due to insured’s failure to comply with notice provision of liability policy is not a necessary condition of defense for the breach of notice requirement).

Forshee v. Emplrs Mut. Cas. Co., 711 S.E. 2d 28, 31 (Ga. Ct. App. 2011) (“[i]t is settled under Georgia law that, when an insurance policy includes a notice requirement as a condition precedent to coverage, and when the insured unreasonably fails to timely comply with the notice requirement, the insurer is not obligated to provide a defense or coverage.”).

Progressive Mountain Ins. Co. v. Cason, 626 F. App’x 916 (11th Cir. 2015) (applying Georgia law) (“there is no requirement under Georgia law that an insurer must show that it was prejudiced by an insured's failure to give timely notices.”).

But see
Plantation Pipe Line Co. v. Stonewall Ins. Co., 780 S.E. 2d 501, 510-511 (Ga. Ct. App. 2015). (“[W]here a notice provision is not expressly made a condition precedent to coverage of the insurance contract, an insured's failure to comply with the notice provision will result in a forfeiture of coverage only if the insurer demonstrates that it was prejudiced by the insured's failure. In keeping with the desire of the law to avoid forfeitures of coverage, the general rule is that a notice provision in an insurance policy is only considered a condition precedent to coverage if it expressly states that a failure to provide such notice will result in a forfeiture of the insured's rights or uses language which otherwise clearly expresses the intention that the notice provision be treated as a condition precedent.”).

Viani v. Aetna Ins. Co., 501 P.2d 706 (Idaho 1972), overruled in part and on other grounds by Sloviaczek v. Estate of Puckett, 565 P.2d 564 (Idaho 1977) (holding that that notice provisions are a condition precedent to insurance coverage, and therefore the insurer could deny coverage on that basis without also needing to demonstrate prejudice).

Sparks v. Transamerica, 141 F.3d 1179 (9th Cir. 1998) (applying Idaho law) (holding that “a showing of prejudice is not required [under Idaho law] where an insured breaches a notice provision of the policy.”).

N. Mgmt. Servs. Inc. v. Navigators Specialty Ins. Co., 608 F.Supp.3d 996, 1001 (D. Idaho 2022) (“Idaho law does not require that an insurer show prejudice before denying a claim.”).

Sheehan Constr. Co. v. Cont’l Cas. Co., 938 N.E. 2d 685 (Ind. 2010) (observing that, once prejudice is presumed, the burden is on the insured to establish some evidence that prejudice did not occur in the particular situation).

Miller v. Dilts, 463 N.E. 2d 257, 265 (Ind. 1984) (determining that “[p]rejudice to the insurance company's ability to preparean adequate defense can therefore be presumed by an unreasonable delay in notifying the company about the accident orabout the filing of the lawsuit”).

Mapleton at Countryside Condo. Ass'n, Inc. v. Travelers Indem. Co., No. 118CV03574TWPTAB, 2020 WL 4448458, at *4(S.D. Ind. Aug. 3, 2020) (“Indiana Courts view notice as a crucial component of an insurance claim, and consequently havecreated a rebuttable legal presumption that an insurer is prejudiced by failure to comply with a notice requirement.”).

P.R. Mallory & Co. v. Am. Cas. Co., 920 N.E. 2d 736, 753 (Ind. Ct. App. 2010) (citation omitted) (“[a]lthough prejudice ispresumed upon the showing of an unreasonable delay in notifying the company of the accident or the filing of the lawsuit,the presumption may be rebutted by evidence that prejudice did not actually occur").

Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Ins. Co., 71 P.3d 1097, 1099 (Kan. 2003) (“Where an insured fails to give to its insurer timely notice of a lawsuit against the insured, the insurer is required to show that it was prejudiced by such failure in order to escape liability under the policy.”).

Geer v. Eby, 432 P.3d 1001,1010-1011 (Kan. 2019) (“[p]rejudice is not presumed and the burden is on the insurer to show that the prejudice is substantial.”)

State ex rel. Div. of Admin., Off. of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of Louisiana, 56 So. 3d 1236, 1246 (La. Ct. App. 2011) (“unless the insurer is actually prejudiced by the insured's failure to give notice immediately, the insurer cannot defeat its liability under the policy because of the non-prejudicial failure of its insured to give immediate notice of an accident or claim as stipulated by a policy provision.”).

Peavey Co. v. M/V ANPA, 971 F.2d 1168, 1172 (5th Cir. 1992) (citations omitted) (“Under Louisiana law, the insurer cannot deny coverage merely because its insured failed to give notice of loss as soon as practicable.... Rather, to deny coverage on the basis that it did not receive notice as stipulated in the policy, the insurer must show ‘actual prejudice.”).

Jackson v. State Farm Mut. Auto. Ins. Co., 29 So. 2d 177 (La. 1946) (holding that all the facts and circumstances must be considered in “balancing the equities” in late notice cases, including “what prejudice to the insurance company's defense has been caused by the delay...”).

But see

Joslyn Mfg. Co. v. Liberty Mut. Ins. Co., 30 F.3d 630, 633 (5th Cir. 1994) (applying Louisiana law) (citations omitted) (recognizing that parties can, by express provision, contract for an alternative to the default “notice-prejudice” rule, holding: “[b]ut where prompt notice of a covered occurrence is a “condition precedent” to recovery under an insurance policy, and the insured fails to give such notice, the claim is no longer covered by the policy, regardless of whether the insurer can demonstrate prejudice”).

MD. CODE. ANN. Ins. § 19-110 (“An insurer may disclaim coverage on a liability insurance policy on the ground that the insured … has breached by policy… by not giving the insurer required notice only if the insurer establishes by a preponderance of the evidence that the lack of cooperation or notice has resulted in actual prejudice to the insurer.”).

Woznicki v. GEICO General Ins. Co., 115 A.3d 152, 173 n. 9 (Md. 2015) citing Sherwood Brands, inc. V. Hartford Acc. And Indem. Co., 698 A.2d 1078, 1083 (“[i]n order to avoid its duty to defend or to indemnify on the ground of delayed notice, the insurer must establish by a preponderance of affirmative evidence that the delay in giving notice has resulted in actual prejudice to the insurer.”).

But see
Himelfarb v. Hartford Fire Ins. Co., 718 A.2d 693 (Md. Ct. App. 1998) (recognizing that an insurer need not establish actual prejudice in order to deny a first party coverage claim for a breach of a policy provision requiring a proof of loss).

Koski v. Allstate Ins. Co., 572 N.W. 2d 636, 639 (Mich. 1998) (citations omitted) (“an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position.”).

See also Tenneco Inc. v. Amerisure Mutual Ins. Co., 761 N.W. 2d 846, 859 (Mich. Ct. App. 2008) (citations omitted) (“An insurer suffers prejudice when the insured's delay in providing notice materially impairs the insurer's ability to contest its liability to the insured or the liability of the insured to a third party.”).

Jackson v. State Farm Mut. Auto. Ins. Co., 880 So. 2d 336, 341 (Miss. 2004) (indicating that under Mississippi Supreme Court precedent, even “where an insurance policy requires notice as a condition precedent to coverage, coverage may still be allowed unless the insurer suffered prejudice due to delay.”).

But see
Bolivar County Bd. Of Supervisors v. Forum Ins. Co., 779 F.2d 1081 (5th Cir. 1986) (applying Mississippi law) (insurer is not required to prove prejudice where the notice clause is considered a “condition precedent” to coverage).

Atl. Cas. Ins. Co. v. Greytak, 350 P. 3d 63, 67 (Mont. 2015) (“[A]n insurer who does not receive timely notice required by the terms of an insurance policy must demonstrate prejudice from that lack of notice in order to avoid the obligation to provide defense and indemnification of the insured.").

Est. of Gleason v. Cent. United Life Ins. Co., 350 P. 3d 349 (Mont. 2015) (holding that the notice-prejudice rule applied in first party insurance context).

Las Vegas Metro. Police Dep't v. Coregis Ins. Co., 256 P. 3d 958, 965 (Nev. 2011) (“[W]e adopt a notice-prejudice rule: in order for an insurer to deny coverage of a claim based on the insured party's late notice of that claim, the insurer must show (1) that the notice was late and (2) that it has been prejudiced by the late notice.”).

Christiana Trust v. Chi. Title Ins. Co., No. 20-CV-00115, 2023 WL 3250819, at *2 (D. Nev. Mar. 29, 2023) (recognizing that the burden is “on the insurer to demonstrate that prejudice resulted from the insured giving late notice”).

PennyMac Holdings, LLC v. Fid. Nat’l Ins. Co., No. 72538, 2018 WL 3689751, at *3 (Nev. July 30, 2018) (“Prejudice arises ‘where the delay materially impairs an insurer's ability to contest its liability to an insured or the liability of the insured to a third party.’’’).

NEV. ADMIN. CODE § 686A.660(4) (1980).

Cooper v. Gov’t Emps. Ins. Co., 237 A. 2d 870, 874 (N.J. 1968) (holding that a carrier may not forfeit coverage unless the carrier proves both “a breach of the notice provision and a likelihood of appreciable prejudice”).

Transportes Ferreos de Venez. II CA v. NKK Corp., 239 F. 3d 555, 561 (3d Cir. 2001) (“New Jersey courts look to twofactors in analyzing whether a party has suffered appreciable prejudice: (1) whether substantial rights have beenirretrievably lost by virtue of the insured's failure to give timely notice; and (2) whether the likelihood of success of the insurerin defending against the underlying claim has been adversely affected.”).

Yannitsadis v. Mission Nat’l Ins. Co., No. 84-4025, 1986 WL 1706, at *4 (D.N.J. Feb. 6, 1986) (“It would be unfair to requirean insured to forfeit coverage, absent a showing by the insurer that it will likely suffer 'appreciable prejudice’ from theinsured's actions.”).

But see
Zuckerman v. Nat’l Union Fire Ins. Co., 495 A. 2d 395, 406 (N.J. 1985) (declining to extend doctrine of appreciable prejudiceset forth in Cooper to a claims-made policy).

N.Y. Ins. Law § 3420(a)(5) (“A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, injured person or any other claimant, unless the failureto provide timely notice has prejudiced the insurer.”) (applying to policies issued on or after January 17, 2009).

N.Y. Marine & Gen. Ins. Co. v. Travelers Prop. Cas. Co. of Am., 485 F. Supp. 3d 398, 401 (“Generally in New York, aninsured's failure to give notice of a claim within the time specified in the policy will not invalidate the claim, unless theinsurance company can show that it was prejudiced by the insured's failure to give timely notice.”).

But see
Indian Harbor Ins. Co. v. City of San Diego, 586 F. App'x 726, 728 (2d Cir. 2014) (noting that the notice-prejudice ruleenacted by NY by statute does not apply to policies issued outside of New York,such as those insuring risks in other states,but which contain New York choice-of-law provisions.)

Finstad v. Steiger Tractor, Inc., 301 N.W. 2d 392, 398 (N.D. 1981) (concluding that an insurer seeking to avoid coverage based upon the insured's failure to provide timely notice of the claim was required to demonstrate the likelihood ofappreciable prejudice resulting from the lack of notice).

Hasper v. Ctr. Mut. Ins. Co., 723 N.W. 2d 409, 416 (N.D. 2006) (holding that denial of coverage based upon a lack ofprompt notice works a forfeiture of coverage that is unfair to the insured absent a showing of “actual prejudice” by theinsurer).

Berkley Nat’l Ins. Co. v. XTO Energy, Inc., 556 F. Supp. 3d 981, 1009 (D.N.D. 2021) (“The North Dakota Supreme Courtconcluded that the failure to provide timely notice of a claim as required by the terms of the insurance policy will result in aforfeiture only if the insurer can demonstrate such a failure resulted in appreciable prejudice to the insurer.”).

Indep. Sch. Dist. No. 1 v. Jackson, 608 P. 2d 1153, 1155 (Okla. 1980) (unless the insurer is prejudiced from the lack of notice, failure to give the insurer notice will not relieve the insurer from liability).

FDIC v. Kan. Bankers Sur. Co., 963 F. 2d 289, 294 (10th Cir. 1992) (applying Oklahoma law) (“unless time is of the essence, the insurer must show prejudice resulting from late notice.”) (emphasis added).

See also
OKLA.STAT. TILT. 15, § 174 (“Time is never considered as of the essence of a contract, unless by its terms expressly so provided.”).

Brakeman v. Potomac Ins. Co., 371 A. 2d 193 (Pa. 1977) (establishing a notice-prejudice rule in the state, holding “[w]e think the preferable rule is that which requires the insurance company to prove not only that the notice provision was breached, but also that it suffered prejudice as a consequence”).

Vanderhoff v. Harleysville Ins. Co., 997 A. 2d 328, 335 (Pa. 2010) (“When considered in light of Brakeman, we conclude that … the insurer must demonstrate prejudice due to the failure of an insured to notify the insurer of the phantom vehicle accident.”).

Brooks v. Am. Centenniel Ins. Co., 327 F. 3d 260, 265 (3d Cir. 2003) (applying Pennsylvania law) (“[W]here an insurance company seeks to be relieved of its obligations under a liability insurance policy on the ground of late notice, the insurance company will be required to prove that the notice provision was in fact breached and that the breach resulted in prejudice to its position.”).

Vt. Mut. Ins. Co. v. Singleton, 446 S.E. 2d 417, 421 (S.C. 1994) (“Where the rights of innocent parties are jeopardized by a failure of the insured to comply with the notice requirements of an insurance policy, the insurer must show substantial prejudice to the insurer's rights.”).

Neumayer v. Phila. Indem. Ins. Co., 831 S.E. 2d 406, 408 (S.C. 2019) (noting that “many jurisdictions, including South Carolina, judicially adopted a notice-prejudice rule, whereby the insurer had the burden to show that it was substantially prejudiced by the failure of its insured to comply with the notice and cooperation provisions”).

See also
Jessco, Inc. v. Builders Mut. Ins. Co., 472 Fed. App’x 225, 230 (4th Cir. 2012) (applying South Carolina law) (“Under South Carolina law, however, recovery under the Policy is barred only if [carrier] proves that it was substantially prejudiced by the late notice.”).

Am. Just. Ins. Reciprocal v. Hutchinson, 15 S.W. 3d 811, 815–18 (Tenn. 2000) (“[W]hen an insured has failed to provide timely notice of a claim against it in accordance with a liability insurance policy, it is presumed that the insurer has been prejudiced by the breach. The insured may rebut this presumption by proffering competent evidence establishing that the insurer was not prejudiced by the insured's delay.”).

Lester v. Allstate Prop. & Cas. Ins. Co., 743 F. 3d 469, 471 (6th Cir. 2014) (applying Tennessee law) (“Tennessee presumes that a failure to participate in an examination results in prejudice to the insurance company, and makes it the policyholder's burden to demonstrate that the company suffered no harm.”).

UTAH CODE ANN. §§ 31A-21-312(2) (“Failure to give notice or file proof of loss as required by Subsection (1)(b) does not bar recovery under the policy if the insurer fails to show it was prejudiced by the failure.”).

State Farm Mut. Auto. Ins. Co. v. Green, 89 P. 3d 97, 104 (Utah 2003) (holding that “[g]enerally, if an insured in Utah fails to provide notice or proof of loss to its insurer as required by the terms of an insurance policy, the insurer may not deny recovery to the insured unless the insurer was prejudiced by the failure”).

8655 N. Cove v. Am. Fam. Mut. Ins. Co., 612 Fed. App’x 492, 494 (10th Cir. 2015) (applying Utah law) (“Under Utah law, failure to provide notice to an insurer ‘does not bar recovery under the policy if the insurer fails to show it was prejudiced by the failure.’”).

State Farm Fire & Cas. Co. v. Walton, 423 S.E. 2d 188, 192 (Va. 1992) (holding that when an insured fails to comply with a policy provision requiring timely notice of an accident “the insurance company need not show that it was prejudiced by sucha violation”).

State Farm Fire & Cas. Co. v. Wallace, 997 F. Supp. 2d 439, 446–47, 452 (W.D. Va. 2014) (“[I]n order for untimelynotification to constitute a breach the policy, such that the insurer no longer bears the duty to defend the insured, the failureto notify must be substantial and material. Three factors bear upon the materiality of a breach of the notice provision of apolicy: “(1) the reasonableness of the delayed notice, (2) the amount of prejudice suffered by the insurer as a result of thedelay, and (3) the length of time that elapsed before notice was given.” (citing Penn-America Ins. Co. V. Mapp, 461 F. Supp.2d 442, 452 (E.D. Va. 2006))).

State Farm Fire & Cas. Co. v. Scott, 372 S.E. 2d 383, 385 (Va. 1988) (“[T]he insurer is not required to show that it has beenprejudiced by the violation,” but the fact-finder may consider prejudice in determining whether the delay in notice wasunreasonable).

State Farm Fire & Cas. Co. v. Wallace, 997 F. Supp. 2d 439, 446 (W.D. Va. 2014) (“Virginia law does not require that aninsurance company be prejudiced by the delay in notification; a prolonged delay in notification alone may breach the policyeven absent a showing of prejudice.”).

Travelers Indem. Co. v. U.S. Silica Co., 788 S.E. 2d 286, 292 (W. Va. 2015) (“If the insurer cannot show that it was prejudiced by the late notice of its insured's claim, though, coverage is not barred by the insured's failure to provide timely notice.”).

Dairyland Ins. Co. v. Voshel, 428 S.E. 2d 542, 545 (W. Va. 1993) (“If the insurer fails to present evidence as to prejudice, then the insured's failure to give notice sooner will not be a bar to the insured's recovery. If the insurer puts on evidence of prejudice, however, the reasonableness of the notice ordinarily becomes a question of fact for the fact finder to decide.”).

Century Sur. Co. v. Jim Hipner, LLC, 377 P. 3d 784, 791 (Wyo. 2016) (“We agree with these [out of state courts adopting the notice-prejudice rule] and hold that the better-reasoned approach is to require prejudice to the insurer before coverage may be denied based upon a violation of a notice provision contained in the policy.”).

Century Sur. Co. v. Jim Hipner LLC, 842 F. 3d 606, 610 (8th Cir. 2016) (applying Wyoming’s adopted “notice-prejudice rule,” which was certified to the Wyoming Supreme Court, in the case noted immediately above).