Description
When the insurer claims it has no duty to defend but loses that question in court, policyholders often have a powerful weapon available to them: the ability to recover costs and attorneys’ fees incurred in successfully prosecuting coverage actions, even in the absence of bad faith.
Even standing alone the potential obligation for these fees a formidable consideration and in some states, attorneys fees are counted as damages for the purpose of assessing the reasonableness of punitive damages. In other words, attorneys’ fees might be used to ratchet up the amount of punitive damages.
On the other hand, if it is later determined that an insurer did not actually owe a duty to defend, the insurer may attempt to recover defense costs and fees for proving that it had no duty. Whether it can recover costs and fees may depend on the mix of covered and non-covered claims and the timing of when claims were submitted for review. Courts are divided as to the insured's right to recover pre-tender defense costs.
Listen as this experienced panel of insurance litigators for both policyholders and insurers guides counsel through the maze of statutes and rationales for allowing policyholders to recover fees incurred to litigate the duty to defend or that permit the insurer to recover certain fees and costs if coverage is determined not to exist.
Presented By
Mr. Harris' practice focuses on commercial litigation with an emphasis on insurance coverage, including general liability coverage, intellectual property coverage, construction defect coverage, and professional liability coverage. He also is experienced defending lawsuits involving catastrophic personal injuries, environmental toxic tort, intellectual property and product liability matters. He wrote an article for the Business Litigation Committee Newsletter of the ABA, on insurer's duty to defend, The Duty to Defend: What Insurers, Insureds and Their Counsel Need to Know When Faced With a Liability Coverage Dispute.
Ms. Henry is the Chair of the firm’s Policyholder Insurance Coverage Team. She regularly advises Fortune 10 and other companies on complex insurance programs involving manuscript and specialty policies and programs incorporating various risk transfer and financing mechanisms. Ms. Henry’s practice spans all aspects of policyholder insurance coverage, from initial policy placement and renewals to claims management and litigation, both in the U.S. and abroad.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, May 3, 2022
- schedule
1:00 p.m. ET./10:00 a.m. PT
- Introduction: Recovery of attorneys’ fees and costs in declaratory judgment actions to determine insurance coverage
- American rule
- Legislative responses
- Courts’ responses
- Litigation strategies
The panel will review these and other key issues:
- What legal rationale supports the insurer's right to reimbursement of defense costs for uncovered claims?
- What are a policyholder's legal arguments to defeat an insurer's claim for reimbursement?
- What exceptions exist to the "American Rule" that a party pays its own litigation costs which would allow policyholders to collect from insurers who lose the duty to defend argument?
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