Course / Program Material 2007 TIPS 15th Annual Insurance Coverage Litigation Committee Program - Tucson AZ
Bill's paper takes a closer look at the insurer's duty to defend in connection with covered and uncovered claims. First he covers the basics regarding the determination of the duty to defend. Next, he takes us through a policyholder's response to the insurer's conclusion that there are uncovered claims asserted, including options to accept a defense under a reservation of rights, demand the appointment of independent counsel (which may help prevent a later claim of "bad faith" if the case does not settle) or, if the matter is in New Jersey, pay its own defense costs and seek reimbursement after the actual facts are determined in the liability action.
Bill's paper next looks at the issues surrounding insurers claims for reimbursement of defense costs for uncovered claims. He identifies some of the jurisdictions that permit such reimbursement, what the insurer needs to do before commencing its defense in order to preserve its right to reimbursement (depending on the jurisdiction) and again points out how New Jersey courts limit the policyholder's the right to reimbursement (which an insurer refuses to defend where the coverage issues cannot be determined without the finding of actual facts) to reimbursement for the defense costs associated with only the covered claim(s) asserted, if readily capable of apportionment. Finally, Bill looks at conflicts and other "unpleasantness" regarding the battles that play out when an insurer appoints defense counsel subject to a defend under a reservation of rights. Trying to determine whether a true conflict exists requires a fact intensive inquiry that necessarily means that cases should be reviewed on their merits.
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