The Illinois Union Insurance Co. filed the 1st lawsuit in November 2013 in the U.S. District Court for Northern California, accusing Intuitive of revealing only 25 legal claims filed over the da Vinci device. Intuitive had also agreed to extend the deadline for other lawsuits filed over the da Vinci device beginning in November 2012, but never told the insurance company about the deals, called "tolling agreements," the lawsuit claims.
Now Navigators Specialty Insurance Co. is making similar allegations, looking to rescind its policy covering claims against the da Vinci device covering Intuitive once the Illinois Union coverage is exhausted, court records show.
"The existence of the subject tolling agreements and the number of claimants added to the tolling agreements were never disclosed to plaintiff at any time during the application process, nor were they disclosed to plaintiff after the submission of plaintiff’s proposal. Moreover, the existence of the tolling agreements was not ever publicly disclosed until after the policy’s effective date. Defendant’s Securities & Exchange Commission filings from 2012 through March 2013 contain no mention of the tolling agreements. This includes a 10-K Annual Report filed with the SEC on or about February 4, 2013 – just one month before the policy went into effect. Defendant first publicly disclosed the existence of the tolling agreements, however, in a 10-Q Quarterly Report filed with the SEC on or about April 9, 2013, 1 month after the commencement of the policy’s March 1, 2013 effective date [emphasis theirs]," according to the documents. "Had plaintiff known during the application and underwriting process for the Policy of the existence of the subject tolling agreements and other information documenting the existence of undisclosed claims and increasing numbers of claimants being added to the tolling agreements, plaintiff never would have issued the policy."
Like Illinois Union, Navigators wants the court to rescind the policy it granted to Intuitive and order the Sunnyvale, Calif.-based company to cover the legal costs of the lawsuit.