National Insurance Law Forum

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Category Archives: Duty to Defend

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Allocating Responsibility for Defense and Indemnity Costs Among Multiple Insurers

Posted in Declaratory Judgment Strategy, Duty to Defend, Duty to Indemnify, Excess and Umbrella Insurance, Recent Cases
Analysis of Zurich Am. Ins. Co. v. S.-Owners Ins. Co., 248 F. Supp. 3d 1268, 1276 (M.D. Fla. 2017) In a dispute between two insurers arising from an underlying premises liability action, a federal district court applied Florida law in its analysis of claims for declaratory relief, equitable subrogation, and contribution. In the underlying action,… Continue Reading

Tenth Circuit finds no duty to defend alleged TCPA violations.

Posted in Duty to Defend, Liability Coverage, Recent Cases
By Stacy Broman and Danielle Dobry on March 7, 2018 Posted in Duty to Defend, Liability Coverage, Recent Cases The Tenth Circuit Court of Appeals recently decided ACE American Insurance Co. v. Dish Network, LLC, No. 17-1140, 2018 WL 988404 (10th Cir. Feb. 21, 2018), a case involving whether statutory damages and injunctive relief  under… Continue Reading


Posted in Duty to Defend
Defending under a policy with a wasting limit is rife with pitfalls for both the insurer and defense counsel.  Provisions that transform a policy into a “wasting limits policy” often appear in professional liability policies, drop-down coverage situations, and excess policies. Policies with such wasting limits provisions go by many names: wasting, eroding, burning, exhausting,… Continue Reading

A Theoretical Safety on the Trigger of the Duty to Defend

Posted in Duty to Defend, Liability Coverage, News, Recent Cases
The Eleventh Circuit of the United States Court of Appeals recently decided Selective Insurance Company of the Southeast v. William P. White Racing Stables, Inc., et al., 2017 WL 6368843 (December 13, 2017), a case addressing limits upon what facts and legal theories may give rise to a duty to defend. In an unpublished opinion,[1]… Continue Reading

Washington Supreme Court decision raises questions for law firms that both represent insurers and defend the insurer’s policyholders

Posted in Duty to Defend, Liability Coverage, Recent Cases
The Washington Supreme Court recently decided Arden v. Forsberg & Umlauf, P.S., 2017 Wash. LEXIS 911 (September 14, 2017), a case involving the ethical obligations of law firms retained by an insurer to defend the insurer’s policyholder.  While the Court of Appeals had held that a law firm with an insurer for a client may… Continue Reading

Second Circuit Deems Policy Ambiguous Regarding Post-Exhaustion Defense

Posted in Duty to Defend, Liability Coverage
By David M. Knapp, Ward Greenberg Heller & Reidy LLP In American Commercial Lines LLC, et al. v. Water Quality Insurance Syndicate, 16-91-cv(L) (2d Cir. Feb. 10, 2017), the Second Circuit reversed a decision from the Southern District of New York, which held that a maritime insurer was obligated to continue defending its policyholder in… Continue Reading

Is It A Flash Or A Trend? “Disparagement” limited to Communications that Assert or Imply the Inferiority of a Competitor’s Products.

Posted in Duty to Defend, Personal and Advertising Injury, Recent Cases
The “personal and advertising injury” coverage applies to injury arising out of “oral or written publication of material that…disparages a person’s or organization’s goods, products or services.”  The term “disparages” is not defined.   Accordingly, it provides fertile ground for creative arguments by policyholders seeking to broaden the meaning to cover trademark infringement,   false advertising and “passing off”… Continue Reading

Additional Insured Status

Posted in Additional Insured, Duty to Defend, Recent Cases
In Homeland Insurance Company of New York v. AAM, Inc., 2016 U.S. Dist. LEXIS 633033 (D. Or. May 13, 2016), the District Court for the District of Oregon held that a construction subcontract and accompanying additional insured endorsements were partially enforceable for purposes of the insurer’s duty to defend, despite the subcontract’s noncompliance with Oregon’s… Continue Reading

Extrinsic evidence, the duty to defend, and environmental claims.

Posted in Duty to Defend
A federal district court applying Washington law recently ruled that an insurer had no duty to defend its insured against environmental “claims” and, in doing so, may have considered evidence extrinsic to the agency communications for which the insured sought a defense.  The Jorgensen Forge Corp. v. Illinois Union Ins. Co., 2016 WL 409822 (W.D.… Continue Reading

Excess Insurer’s Duty to Defend Not Triggered By Severity of Claims

Posted in Duty to Defend, Excess and Umbrella Insurance
The New Hampshire Supreme Court’s recent opinion in Old Republic Ins. Co. v. Stratford Ins. Co., 2016 WL 302212 (N.H. Jan.26, 2016) has reaffirmed the traditional principle that the obligations of an excess insurer to participate in its insured’s defense  are not triggered merely by reason of the fact that the insured’s liability is so… Continue Reading


Posted in Duty to Defend, Liability Coverage
There has been a trend among policyholders to recast trademark infringement claims as infringement of slogan, in order to trigger a duty to defend under the “personal and advertising injury” liability coverage of the CGL policy. This is driven, in large part, by the intellectual property exclusion which expressly excludes coverage for trademark claims, but… Continue Reading

Many States Do Not Allow Insurers or Insureds To Consider Extrinsic Evidence in Determining the Duty To Defend

Posted in Duty to Defend, Recent Cases
Yesterday’s blog addressed Illinois law, which allows consideration of extrinsic evidence in determining an insurer’s duty to defend.   However, many courts still adhere to the “Four Corners” approach  (or the “Eight Corners” approach if you count looking at the policy too)  in determining the duty to defend.  In other words, the courts in the following states  look… Continue Reading

Extrinsic Evidence: when can it be considered in determining the duty to defend?

Posted in Duty to Defend
 Duty to defend:  Insurers cannot always rely on extrinsic evidence to determine a duty to defend.    While there are circumstances where Illinois courts will look at extrinsic evidence to determine the duty to defend, courts will not look at extrinsic evidence that contradicts the allegations of the complaint.   Nor, apparently, will Illinois courts look… Continue Reading

Three Cases You Need to Know for Northwest Insurance Law

Posted in Bad Faith/Extra Contractual, Duty to Defend, Duty to Indemnify, Uncategorized
1. Reasonable or Questionable? Generally, to establish bad faith, the insured must show that the insurer’s breach of the insurance contract was “unreasonable, frivolous or unfounded.”  Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 561, 951 P.2d 1124 (1998).  However, under Washington law, an insurer that fails to defend based on “a questionable interpretation… Continue Reading

West Hills Development Company v. Chartis Claims, Inc., et al., 273 Or App 155 (2015)

Posted in Duty to Defend
In the recent case West Hills Development Company v. Chartis Claims, Inc., et al., 273 Or App 155 (2015) (“West Hills”), the Oregon Court of Appeals provided further guidance to Oregon insurers on their handling of tenders of defense from parties who contend that they are additional insureds. In particular, the court addressed the scope… Continue Reading

Insurers (in some situations) can directly sue independent counsel for reimbursement

Posted in Duty to Defend
The California Supreme Court in Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., 190 Cal. Rptr. 3d 599 (Cal. 2015), has held an insurer has the right to seek reimbursement of unreasonable and excessive attorneys’ fees directly from the insured’s independent counsel, which firm “provide[d] no convincing reason why they should be absolutely immune from liability for enriching… Continue Reading

Breach of the Duty To Cooperate or Not…

Posted in Auto Liability Coverage, Duty to Defend, Recent Cases
The Illinois Supreme Court has recognized that a cooperation clause prevents collusion between the insured and injured and enables an insurer to prepare its defense to a claim. M.F.A. Mutual Ins. Co. v. Cheek, 66 Ill. 2d 492, 496 (1977).  It has also acknowledged that: “Any condition in the policy requiring cooperation on the part… Continue Reading