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  • videocam On-Demand
  • signal_cellular_alt Intermediate
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  • schedule 90 minutes

Insurer's Duty to Prosecute the Policyholder's Affirmative Claims: Ethical and Coverage-Savvy Litigation Strategies

$297.00

This course is $0 with these passes:

CLE
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Description

Typically, affirmative relief claims, including counterclaims, crossclaims, or third-party claims, do not fall within the duty to defend. But when the policyholder has strategically defensive affirmative counterclaims, for example, theft of trade secrets in an unlawful discharge case, many courts have held that prosecution of those affirmative counterclaims is within the scope of coverage and duty to defend. This scenario flourishes in business tort, employment, and intellectual property disputes.

The insurer's obligation to fund affirmative relief may also arise if its policyholder sues a third party and that third party counterclaims against the policyholder. If the insurer must defend the counterclaim, it may also end up financing the policyholder's lawsuit for affirmative relief if that affirmative relief is inextricably tied to the defense of the counterclaim. Of course, the insurer is subrogated to any recovery for attorneys' fees and may end up recovering all its costs.

The insurer can also sometimes be obligated to defend based on allegations arising in parallel legal proceedings originating from a common core of operative facts. The program will review the distinct ways that jurisdictions across the nation have addressed this issue.

Listen as David A. Gauntlett, Principal at Gauntlett Law, discusses when the duty to defend includes the duty to pay or seek affirmative relief, and why it is often in the best interests of the insurer as well as the policyholder.

Presented By

David A. Gauntlett
Principal
Gauntlett Law

Mr. Gauntlett serves as lead counsel in intellectual property and antitrust insurance coverage disputes pending in more than 30 states. He is recognized for his work in precedent-setting coverage litigation involving patent, trademark, and copyright infringement, as well as trade secret misappropriation and unfair competition claims. Mr. Gauntlett is admitted to practice before the U.S. Supreme Court, the Federal Circuit, eleven U.S. Courts of Appeal, and 24 U.S. District Courts—including all federal districts in California, Florida, Illinois, New York, and Wisconsin. He serves as lead counsel in intellectual property and antitrust insurance coverage disputes pending in more than 30 states. Mr. Gauntlett is recognized for his work in precedent-setting coverage litigation involving patent, trademark, and copyright infringement, as well as trade secret misappropriation and unfair competition claims. He is admitted to practice before the U.S. Supreme Court, the Federal Circuit, eleven U.S. Courts of Appeal, and 24 U.S. District Courts—including all federal districts in California, Florida, Illinois, New York, and Wisconsin.

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Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.


  • Live Online


    On Demand

Date + Time

  • event

    Tuesday, May 23, 2023

  • schedule

    1:00 p.m. ET./10:00 a.m. PT

  1. THE DUTY TO DEFEND
    1. Defining "Defense" of Claims
    2. Pertinent Policy Language
    3. When Policy Language is "Ambiguous"
    4. The "In For One, In For All" Rule
    5. The Breadth of the "Conducted Against Liability" Doctrine
  2. WHEN INSURERs SEEK TO CONTROL THE DEFENSE
    1. The Right to Independent Counsel
    2. The Restatement of Insurance Coverage
    3. Affirmative Prosecution of Claims While the Defense is Provided by "Appointed Counsel"
  3. WHEN DEFENSIVE COUNTERCLAIMS OR CROSS-CLAIMS TRIGGER INSURER FUNDING DUTIES
    1. Inextricably Intertwined Claims
    2. Strategically Defensive Claims
    3. Parallel Proceedings
  4. RESPONDING TO INSURER ARGUMENTS
  5. STRATEGIES FOR POLICYHOLDERS

The panelist will review these and other key issues:

  • When is affirmative relief inextricably intertwined with defense?
  • What are the different approaches across jurisdictions?
  • What is the standard of care in representing policyholders?
  • What can policyholders learn from Fortune 50 businesses about harnessing the duty to defend?
  • How can insurers benefit from seeking affirmative relief?