Winning and Losing Strategies Litigating the Duty to Defend: Policyholder and Insurer Considerations

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Insurance
- event Date
Thursday, June 12, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will showcase winning and losing strategies for insurers and policyholders when litigating the duty to defend. The panel will discuss how each side assesses strategic issues that must be considered when deciding whether, how, and where to litigate the insurer's obligations to defend, to advance defense costs, or to reimburse the insured for amounts already incurred. The panel will offer examples from a variety of substantive practice areas and different types of policies and highlight the most important factors that lead to each particular outcome.
Faculty

Mr. Krebs is based in Philadelphia and is a commercial trial and appellate lawyer representing insurance carriers and businesses in complex commercial, insurance, and bad faith litigation. He focuses his practice on disputes involves large exposures and emerging issues of law that are likely to impact future industry disputes. As part of this practice, Mr. Krebs frequently represents insurance clients in emerging mass tort, environmental, and bankruptcy exposures. He advises insurers in coverage disputes under all types of policies, including commercial general liability, directors' & officers', errors and omissions, employers’ liability, professional liability, excess, cyber, and first-party policies. Mr. Krebs has been at the forefront of some of the most contentious insurance disputes of the past decade, guiding clients through a litany of major mass tort bankruptcies, multidistrict litigation, and coverage disputes receiving industry-wide attention.

Ms. McKenzie is based in Seattle and represents insurers in coverage and bad faith litigation in Washington state and federal courts at the trial and appellate levels. She has experience advising insurers on first- and third-party coverage issues under personal and commercial lines policies, including commercial general liability, professional liability, employment practices liability, commercial auto, commercial property, and excess policies.

Ms. Kim is a senior associate in the Insurance Recovery Group, focusing her practice on representing corporate, commercial, and residential policyholders in disputes with insurance companies. She works primarily with Commercial General Liability (CGL), Directors and Officers liability (D&O), Professional Errors and Omissions (E&O), and first-party property policies, providing coverage opinions, counseling, and dispute resolution. Ms. Kim serves well-known clients in the banking and financial institutions, healthcare, hospitality, manufacturing, retail, transportation and energy sectors, as well as religious institutions and small and medium sized businesses. In law school, she was a judicial intern to the Honorable Pamela K. Chen of the United States District Court of the Eastern District of New York. Ms. Kim serves as co-chair of the Insurance Subcommittee of the Business Law Section of the Philadelphia Bar Association.
Description
Litigating the duty to defend is a high stakes proposition. If the policyholder succeeds, then it gains leverage to resolve the coverage dispute, as well as some financial relief. If the insurer wins, and a court finds no duty to defend, then quite often the insurer has no further or very limited obligations to the insured under the policy or policies. Although the stakes may be all or nothing, litigating the duty to defend may be an attractive and calculated proposition because the issue is usually (1) decided as a mater of law, (2) involves narrow issues of contract interpretation, (3) can be resolved on a limited record, and (4) can be done on a more limited budget.
The duty to defend is usually interpreted broadly. It is not unusual for insurers to urge broad interpretation of policy exclusions to negate the duty to defend. Policyholders, on the other hand, may be inclined to focus on language in the policy that describes what is covered based on how coverage provisions are worded. Both parties need to consider where the suit is or may be filed, the ability to appeal, related litigation, and other matters.
Listen as this experienced panel of coverage litigators discusses the strategic considerations that go into when, where, and how the duty to defend is litigated and what approaches seem to work and which seem not to work.
Outline
I. Scope of duty to defend
II. Insurer considerations
III. Policyholder considerations
Benefits
The panel will review these and other important issues:
- Is there an advantage to being the plaintiff in duty to defend litigation?
- What is the effect of later discovery of evidence that no duty to defend exists?
- What happens when both insurer and insured file competing lawsuits?
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