In Syracuse University v. National Union Fire Insurance of Pittsburgh, PA, No. 2012EF 63 (Sup. Ct., Onondaga County, January 29, 2013), the New York Supreme Court, County of Onondaga, held that an insured’s costs incurred in responding to subpoenas issued by state and federal agencies, were covered (as defense costs) as “Claims” made under a not-for-profit individual and organization insurance policy issued by National Union. The case arose out of allegations that a Syracuse assistant basketball coach, Bernie Fine, had sexually abused two former participants in Syracuse University’s basketball program over a period of years while serving in his capacity as the University’s assistant basketball coach. The court held that issuance of the subpoenas constituted a “Claim” as defined in the policy.

Service of Multiple Subpoenas -

According to the declaratory judgment complaint, in late 2011 and early 2012, Syracuse University received multiple subpoenas in connection with state and federal investigations relating to the allegations against Fine. The federal subpoenas required production of, among other things, computer equipment possessed by Fine, a list of all secretaries who had worked for him, a list of his hotel accommodations while traveling with the basketball team in 2001 and 2002, and bus services known by plaintiff to provide transportation to away games during that period. Further, the federal subpoenas sought records relating to any complaints made about Fine, internal documents relating to how Syracuse responded to such complaints, and documents concerning communications occurring after November 17, 2011, when Fine was suspended by Syracuse. Also, significantly, a subpoena sought documentation that post-dated Fine’s departure, which referenced communications relating to the topics of Joe Paterno, Jerry Sandusky or the scandal related to the Penn State University football team and allegations of child molestation by Sandusky. In addition, one subpoena sought any and all complaints regarding Fine, telephone logs for any telephone calls made or received by Fine, as well as documents and records relating to Syracuse men’s road games, meet and greet sessions, and any videos for the games.