Duty to Defend Civil Investigative Demands: Reexamining Coverage Assumptions After Cigna v. XL Specialty Insurance

This CLE webinar will discuss the duty to defend and insurance coverage for civil investigative demands (CID) and similar devices, with consideration of recent cases about False Claims Act (FCA) investigations.

Responding to a CID or government subpoena that may lead to civil or criminal liability is a serious, protracted, delicate, and expensive task. Whether one or more insurance policies, usually D&O, E&O, or professional liability, provide coverage turns on whether the government demand constitutes a "claim" accusing the insured of a "wrongful act," as those terms are defined in the relevant policies.

How courts analyze these issues and thus whether coverage for CIDs and other government actions is available is an ever-changing area of law, highly dependent on the specific policy language. However, recent decisions, including The Cigna Group v. XL Specialty Insurance Co. et al., C.A. No. N23C-03-009 SKR CCLD (Del. Super. Ct. Dec. 8, 2025), which involved the FCA, are causing experienced practitioners on both sides to reexamine their assumptions about coverage for CIDs and government subpoenas and how courts assess the issues. 

Triggering available coverage is only the first step. Leveraging coverage also requires policyholder counsel, usually subject to a reservation of rights, to navigate a host of notice, communication, and cooperation issues with the insurer while preserving privilege and safeguarding the client's interests in the investigation. Counsel need strategies for persuading the insurer that the government is alleging wrongdoing without offering proof the government can use.

Listen as our expert panel offers insights for more persuasive advocacy about coverage for CIDs and similar devices and how recent analysis in the context of FCA investigations can be translated into other areas.