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Policyholder's Duty to Cooperate: Advocating or Defending Against Loss of Coverage for Breach

Navigating Scope of the Duty, Privilege Issues, Settlement, and Consequences of Insured's Failure to Cooperate

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

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Thursday, March 23, 2017

Recorded event now available

or call 1-800-926-7926

This CLE course will discuss the scope of the insured’s duty to cooperate, the circumstances under which an insurer can disclaim coverage by alleging the insured breached that duty, the insurer’s burden of proof, and other issues that arise in this context such as attorney-client privilege and claim settlement.

Description

The duty to cooperate clause imposes certain obligations on the insured to assist the insurer in investigating and defending third-party claims. For first-party claims, the insured has an obligation to provide relevant information or documents to the insurer. Breach of the duty may result in loss of coverage.

In order to disclaim coverage because of the insured’s breach of the duty to cooperate, the insurer must demonstrate that the insurer was actually prejudiced by the insured’s failure to cooperate. An insured’s passive non-responsiveness versus active collusion with a third-party claimant are distinguished.

A critical issue that arises in the context of the scope of the insured’s duty is the disclosure of privileged or confidential information by the insured. The duty to cooperate clause also impacts the insured’s ability to settle third-party claims directly with the claimant.

Listen as our authoritative panel of insurance practitioners examines the scope of the insured’s duty to cooperate with the insurer, what the insurer must demonstrate to disclaim liability because of a breach, and other thorny issues that arise in this context, such as the insured’s obligation to disclose confidential information protected by the attorney-client privilege and the insured’s right to settle directly with third-party claimants.

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Outline

  1. Application and scope of the insured’s duty to cooperate
  2. First vs. third-party claims
  3. Coverage issues impacting the duty to cooperate
    1. Attorney-client privilege and disclosure of confidential information
    2. Claim settlement
    3. Consent to settle clause
  4. Insurer’s requirement to demonstrate prejudice
  5. Prejudice arguments—successful and unsuccessful

Benefits

The panel will review these and other key issues:

  • What is the insurer’s burden of proof for disclaiming liability due to the insured’s failure to cooperate?
  • Under what circumstances might an insured be justified in refusing to cooperate with the insurer?
  • Does a defense under reservation of rights change the scope of the insured’s duty to cooperate?
  • How does the duty to cooperate impact the insured’s right to settle the claim?
  • Are there circumstances under which the insurer will be estopped from raising the insured’s breach of the duty?

Faculty

Matthew L. Jacobs
Matthew L. Jacobs
Partner
Jenner & Block

Mr. Jacobs has been successfully litigating insurance coverage matters for more than 25 years. He is a member of the...  |  Read More

Harris, Eliot
Eliot M. Harris
Member
Williams Kastner

Mr. Harris' practice focuses on commercial litigation with an emphasis on insurance coverage, including general...  |  Read More

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