Pleading Into Coverage and the Duty to Defend: Strategies to Enhance Insurer Involvement

Coverage turns almost entirely on how the underlying actions are pleaded. Thus, insurance litigators want to discover available insurance policies and then draft pleadings--whether plaintiff or defense--that trigger the available coverage and the duty to defend.

Problems arise because the facts crucial to establishing coverage often have no bearing on liability. Thus, attorneys can plead too little, leaving out facts demonstrating coverage and giving the insurer ample ground to argue it has no duty to defend the policyholder.

Attorneys can also plead too much and end up pleading "outside of coverage." The complaint may contain causes of action that are covered, but the facts alleged only support a non-covered or excluded claim. Although pleading "outside of coverage" is not always fatal to the duty to defend or to coverage, it can create a host of unnecessary complications and dampen insurer involvement.

Listen as this experienced panel instructs insurance litigators how to plead covered claims and how to avoid mistakes that can cause a complaint to be dismissed even when the underlying facts of the claim are within coverage.