Allocating Defense Costs Among Multiple Insurers and Between Covered and Uncovered Claims

Methods of Allocation Among Insurers and Allocation to Insured for Uncovered Claims or Policy Periods

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, July 29, 2015

Recorded event now available

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Program Materials

This CLE webinar will provide insurer and policyholder insurance counsel with an analysis of the various issues that arise in the allocation of defense costs among multiple insurers and between covered and uncovered claims. The panel will discuss different approaches to allocation among multiple insurers, and recent case law developments regarding the allocation of defense costs.

Description

There has been a recent trend, and some controversy, surrounding the practice of insurers seeking reimbursement of defense costs for non-covered claims. Courts are divided as to the insured’s right to recover pre-tender defense costs. And, a long-running coverage battle persists between insurance companies and policyholders on the allocation of defense costs between covered and uncovered claims.

One of the most complex issues in insurance coverage disputes involves long-tail claims—such as asbestos bodily injury and environmental claims. Such claims raise complex questions of how defense costs should be allocated among multiple insurers and policy years triggered by such losses.

A court’s or jurisdiction’s application of either the all sums or pro-rata allocation theories to indemnity does not necessarily dictate that the court will allocate defense costs in the same manner. Courts that have adopted the pro-rata allocation of liability but have allocated defense costs under an all sums theory employ various rationales, including the fact that the insurer’s duty to defend is broader than its duty to indemnify. 

Listen as our authoritative panel of insurance practitioners reviews the competing theories for allocating defense costs among multiple insurers, focusing on case law developments and recent trends. The panel will outline effective strategies for both insurers and policyholders for arguing for the most favorable allocation methodology.

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Outline

  1. Allocation of defense costs where multiple insurers have a duty to defend
    1. Joint and several vs. all sums theories of allocation
    2. Contribution among insurers
  2. Allocation of defense costs for periods of non-coverage
  3. Allocation of defense costs among covered and non-covered claims
  4. Insurer’s right to reimbursement of defense cost

Benefits

The panel will review these and other key issues:

  • What is the insurer’s right, if any, to apportion or allocate defense costs incurred by the insured in a “mixed action”?
  • What is the distinction between the duties to defend and indemnify, and how does this impact allocation of defense costs among multiple insurers?
  • What jurisdictions have weighed in on the appropriate allocation theory for defense costs?

Faculty

Louis H. Kozloff
Louis H. Kozloff
Partner
Goldberg Segalla

With a practice that focuses on insurance coverage and other insurance-related litigation, Mr. Kozloff — a...  |  Read More

Jeffrey L. Schulman
Jeffrey L. Schulman
Managing Member
The Law Offices of Jeffrey L. Schulman

Mr. Schulman has tried numerous jury and non-jury cases to verdict and recovered tens of millions of dollars over the...  |  Read More

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