### The HONORAB LE CAROL E. JACKSON, United States District Judge 1 

### for the Eastern District of Missouri. ___________ No. 95-3090EM

___________ Lexington Insurance Company, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. St. Louis University, * * Defendant - Appellant. *

___________ Submitted: February 15, 1996 Filed: July 8, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ LOKEN, Circuit Judge.
Lexington Insurance Company ("Lexington"), a London-based insurer , issued a liability policy to St. Louis University for claims made during the p eriod July 1, 1990, through July 1, 1991. On May 20, 1991, Shell y McCormick sued the Un iversity for medical malpractice allegedly committed in 19 79. The University mistakenly listed McCormick's claim as a 197 9 rather tha n a 1991 claim on "loss run" reports submitted to Lexingto n before the policy expired. Therefore , the district court granted summary 1 judgme nt declaring that Lexington need not indemnify the University fo r McCormick's claim because it was not made and reported during the policy period. The University appeals, seeking to distinguish

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co ntrolling Missouri and Eighth Circuit cases construing claims mad e policies. We affirm.

1. The issues here turn on the crucial difference betwee n "occur rence" and "claims made" liability insurance policies. Under a n occurrence policy, th ere is coverage for negligent conduct of the insured that occurs during th e policy period. A claims made policy, on the other hand, provides coverage if the third party's claim is made against th e insured, and brought to the insurer's attention, during the term of th e policy. See Esmailzadeh v. Johnson & Speakman , 869 F.2d 422, 425 (8th Cir

. 1989). Both types of policies require the insured to promptly notify the insurer of possible covered losses. With a claims made policy, however, that not ice is not simply part of the insured's duty to cooperate. I t defines t he limits of the insurer's obligation -- if there is no timel y notice, there is no coverage. A claims made pol icy "allows the insurer to
more a ccurately fix its reserves for future liabilities and comput e premiums with greater certainty." FDIC v. St. Paul Fire & Marine Ins. Co. , 993 F.2d 155, 158 (8th Cir. 1993). Like many States, Missouri has adopted regulations prohibiting unfair insurance claims sett lement practices. One of those regulations, adapted from prior court decisions, provides:

No insurer shall deny any claim based upon the insured' s failure to submit a written notice of loss within a specified ti me following any loss, unless this failure operates t o prejudice the rights of the insurer.

20 Mo. Code Regs. § 100-1.020(4). In Esmailzadeh , we held that a compar able Minnesota regulation did not apply to claims made policies

. Unless there is timel y notice, the claim is not covered, we explained, so excusing tardy notice "would alter a basic term of the insurance contract. " 869 F.2d at 424.

### -3- The M issouri Courts of Appeals have followed Esmailzadeh , holdin g that an insurer need not prove prejudice to avoid coverage under a claims made policy if the cl aim was not reported until after the policy expired. See Insurance Placements, Inc. v. Utica Mut. Ins . Co. , 917 S.W.2d 592, 597 (Mo. App. 1996); Continental Casualty Co. v. Max well , 799 S.W.2d 882, 886- 87 (Mo. App. 1990). As the district court recognized, this principle is govern ing law in a diversity case. The question then is whether th e University can avoid its grasp.
2. Lexington's claims made policy in sured the University for medical malpra ctice losses that exceeded $2 million. The policy's Hospita l Professional Liability endorsement covered:
all sums which the Named Insured shall become legal ly obligated to pay as damages becaus e of Bodily Injury caused by a Medical Incident which results in a claim or claims being first made, in writing, against the Insured during the period of thi s Policy.
(Emph asis added.) Noting that the insuring clauses in the policies a t issue in Esmailzadeh and other cases covered "claims first made an d reported ," 869 F.2d at 423, the University argue s that the absence of "and reported" language in Lexington's insuring claus e means that the prejudice rule of the above-quoted regulation should apply. The district cour t rejected that contention. Looking at the policy as a whole, the court hel d that it should be construed like other claims made policies. We agree.

The Lexington policy begins, "THIS IS A CLAIMS MADE POLICY." Th e po licy's Reporting and Claims Handling Endorsement provides that th e Universi ty"shall give" Lexington notice of each claim "as soon a s practicable," and in any event, "during the period of this Policy." The Report ing and Claims Handling Endorsement expressly provides tha t compliance with these notice provisions is a "condition of the Insured's right to indemnity under this Policy."

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The Hospital Professional Liability Endorsement likewise includes the duty to notify in its "Conditions" section.

This policy language making notice a condition of coverage i s virtu ally identical to the policy notice requirement in Continenta l Casualty , 799 S.W.2d at 884. Moreover, the relevant Missouri case s emphasize that timely reporting of claims to the insurer under a claim s
ma de policy is an essential part of the contract. See Insuranc e Pla cements , 917 S.W.2d at 597; Continental Casualty , 799 S.W.2d at 886
. The University bases its argument for a prejudice requirement on Tuterri's , Inc. v. Hartford Steam Boiler Inspection & Ins. Co. , 894 S.W.2d 266, 269 (Mo. App. 1995), a case that did not involve a claims made policy. W e agree with the district court that Continental Casualtyis controlling

. Therefo re, Lexington need not prove prejudice to deny coverage if th e University failed to report the McCormick claim within the policy term.

3. Turnin g to that fact issue, the University argues that it did in fact provide Lexington adequate notice of the McCormick claim before the policyexpired. Lexington agreed to accept the University's "loss run"
com puter printout as a notice of claims first made. This documen t recorded, tracked, an d provided information regarding all claims asserted over a number of year s. The McCormick claim was mistakenly listed on the June 28, 1991, loss run as a 1979 claim. Pointing to policy languag e excusing harmless "in advertent error" in reporting claim information, the University contends that it simply made a good faith reporting mistake tha t must be forgiven absent prejudice to Lexington.

Th e policy language cited by the University relates to errors i n reporting claim information after initial notice of the claim has bee n given. Here, on the other hand, the issue is lack of an initial notice. The June 1 991 loss run was a fifteen-page document reporting over 50 0 inci dents. The University reported the McCormick claim in the firs t section of the loss run, which covered

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years prior to 1987, when the University was solely self-insured. Th e second section covered years after 1987, when the University first obtaine d
excess liability coverage. That section listed claims by the year in whic h theywere first asserted. We agree with the district court that listing the McC ormick claim in the 1979 portion of the loss run reports did no t give Lexington notice that a new claim had been made during the 1990-1991 poli cyperiod. Because the University presented no evidence that i t reported the McCormick claim to Lexington in any other fashion prior to th e end of the policy period, there was no coverage as a matter of law.
The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.