Excess Insurer's Duties to Defend and Indemnify: Exhaustion, Claims Not Covered by Primary, Defense-Cost Reimbursement
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will provide counsel to insurers and policyholders with an analysis of the scope of an excess insurer's duty to defend and indemnify and a review of the most commonly disputed issues and how to respond.
Outline
- Scope of the duty to defend
- Absence of underlying exhaustion
- Claims not covered by primary insurer
- Insolvency of primary insurer
- Duty to reimburse defense costs
- Consent requirement
- Interpretation of definition of loss
- Reasonableness of defense costs
Benefits
The panel will review these and other key issues:
- Will the excess insurer be obligated to reimburse the insured for defense costs--or assume the principal obligation to defend?
- Must an excess insurer contribute to a settlement if the primary policy has not in fact paid its full limits (sometimes referred to as the Zeig issue) and are insurance policies changing in response to decided cases?
- Will the insolvency of the primary insurer trigger the excess policy to drop down to provide a defense?
- How can counsel address exhaustion of primary coverage in mass tort or major liability litigation such that excess coverage is in play?
- The inconsistency of courts in demanding strict analysis and adherence to policy language and how counsel should prepare
- Is the defense obligation of an excess insurer outside of policy limits or subject to the policy limit for "ultimate net loss"?
Faculty
Marc S. Mayerson
Principal
The Mayerson Firm
Mr. Mayerson specializes in complex insurance-coverage disputes including litigation, settlement and advice, and... | Read More
Mr. Mayerson specializes in complex insurance-coverage disputes including litigation, settlement and advice, and has appeared as counsel in actions seeking insurance recovery for environmental liabilities, asbestos bodily injury claims, product-liability claims, medical-device liability, fidelity losses, errors-and-omissions liability and employment-practices liability matters.
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Scott M. Seaman
Co-Chair Global Insurance Services Practice Group
Hinshaw & Culbertson
Mr. Seaman is a commercial litigator and trial lawyer with more than 35 years of experience. Scott is widely regarded... | Read More
Mr. Seaman is a commercial litigator and trial lawyer with more than 35 years of experience. Scott is widely regarded as one of the leading attorneys in the United States representing insurers and reinsurers in property and casualty matters. He is known for employing his deep knowledge of the law and insurance industry, strategic thinking, and honed trial and appellate advocacy to produce creative solutions and outstanding results for clients. Clients regularly turn to Scott and his team for counsel and representation in challenging and high-stakes insurance and business matters. Mr. Seaman has a long track record of successfully representing companies before trial courts, appellate courts, and arbitration panels across the country in a variety of cases and matters involving general liability coverage (primary, umbrella, and excess), professional liability coverage, directors and officers liability insurance, first-party property coverage, bad faith and extra-contractual matters, fee disputes, and facultative and treaty reinsurance contracts. He also advises and represents companies on cyber, privacy, data breach, IoT, nanotechnology, gig economy, viruses and pandemics, representations and warranties, transactional insurance, social unrest, ESG, climate change, and other emerging issues, as well as a wide-range of case-specific and portfolio issues. He also has handled a variety of challenging international, professional liability, health/life science, director and officer liability, tort and product liability, and business and commercial cases.
He was named to the inaugural list of Midwest Trailblazers by The American Lawyer magazine for his "high-profile, complex insurance coverage cases nationwide, which resulted in precedent setting rulings that have altered insurance law." He is co-author of Allocation of Losses in Complex Insurance Coverage Claims (11th Ed. 2023) He is ranked Band I by Chambers USA.
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