The duty to defend remains one of the most fundamental concepts in insurance law—and perhaps one of the most litigated. Indeed, canvass any court docket anywhere, and you likely will find it replete with the duty to defend related lawsuits. Such lawsuits are nothing new and, over many decades, have yielded an entire body of case law addressing various sub-issues, like when the duty to defend arises. To whom is it owed? Under what circumstances does it terminate? Can facts outside the underlying plaintiff’s complaint trigger the duty to defend? Can insurers rely on evidence outside the pleadings to disclaim their defense obligation? The list goes on and on and is extensive, comprised of topics addressed by many insurance law treatises and practitioners’ handbooks. However, few (if any) such resources tackle these subjects as comprehensively, methodically, and practically as The Insurer’s Duty to Defend: Issues and Analysis, which is why I highly recommend it.
Co-authored and edited by an impressive roster of insurance law practitioners, scholars, and other professionals, the book consists of eleven well-written and annotated chapters that analyze key duty to defend related concepts. The first chapter generally addresses the duty to defend framework, including some of the more preliminary issues identified above, like to whom insurers owe a duty to defend, what triggers the duty, its contours, the requirement of a “suit” seeking “damages,” and the defense obligations of excess and umbrella insurers.
Chapters two through eleven address other key topics, including reservation of rights and nonwaiver agreements; conflicts of interest in insurance defense; whether and to what extent an insurer’s defense obligation extends to the prosecution of affirmative claims; the duty to appeal or pursue post-judgment relief; terminating the duty to defend; insurers’ right to recover defense costs for uncovered claims or causes of action; allocating defense costs; the consequences of breaching the duty to defend; nonexecution agreements and consent judgments; and more.
In-house and outside counsel for insurers and policyholders will inevitably face duty to defend related issues, some of which may give rise to disputes, including litigation. The Insurer’s Duty to Defend: Issues and Analysis is a one-stop guide for navigating and simplifying these issues, making it a must-have resource for anyone whose practice even tangentially involves insurance.
