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Insurer's Duty to Defend Pre-Suit Demands: Avoiding Unintentional Breach and Possible Waiver of Coverage Defenses

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, December 21, 2023

Recorded event now available

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This CLE webinar will offer guidance and insight to counsel on the complex issue of when something short of the actual filing of a complaint can trigger an insurer's duty to defend. The program will assist practitioners in avoiding an unintentional breach and the resulting waiver of coverage defenses that may occur in some jurisdictions.

Description

Determining when an insurer must defend a pre-suit demand made upon its insured is more complicated than it may appear to be. General liability policies typically require the insurer to defend any "suit" seeking covered "damages" that the policyholder may become "legally obligated to pay." Insurers point to the literal policy language to eschew any duty to defend until an actual suit is filed.

But a literal reading is only the beginning, not the end of the analysis. Courts have long-interpreted the insurer’s defense obligation broadly, often requiring a defense where there is merely a potential for coverage. Failing to defend a pre-suit demand may violate this broad duty. Issues that often arise when assessing a pre-suit demand include (1) whether the pre-suit demand is tantamount to a suit because of its threatening and coercive nature, (2) whether the pre-suit demand is a form of alternative dispute resolution, and (3) whether the pre-suit demand could give rise to sums that the insurer might be asked to indemnify.

Determining whether a pre-suit demand falls into one of these categories requires careful review of policy and the facts. Making the wrong call could be perilous for both the policyholder and the insured.

Listen as this premier panel of insurance attorneys offers guidance for analyzing the perplexing issue of when insurers must defend pre-suit demands.

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Outline

  1. Analysis of standard policy language
  2. Cases finding duty to defend pre-suit demands
    1. Sufficiently coercive to qualify as a suit
    2. Qualifies as alternative dispute resolution
    3. Pre-suit demands as costs recoverable in anticipation of litigation
  3. Interplay with other rights and obligations under the policy
    1. Insurer's right to control the "defense"
    2. Insurer's duty to settle
    3. Insured's obligation to report occurrences--prior knowledge exclusions
    4. Prohibition against settlement without insurer's consent
  4. Pre-suit coverage litigation strategies

Benefits

The panel will discuss these and other key issues:

  • Why might an insurer choose not to defend pre-suit demands?
  • What happens when the pre-suit demand triggers coverage under one or more policies?
  • How do potential coverage defenses affect the analysis?

Faculty

Levine, Michael
Michael S. Levine
Partner
Hunton Andrews Kurth

Mr. Levine has more than 20 years of experience litigating insurance disputes and advising clients on insurance...  |  Read More

Mumford, John
John B. Mumford, Jr.
Partner
Hancock Daniel & Johnson

Mr. Mumford represents insurance companies in complex coverage litigation in numerous state and federal courts, and...  |  Read More

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