Crafting Coverage Position Letters and Evaluating Impact of Insurer's Defense Under Reservation of Rights

Avoiding Waiver of Defenses, Establishing Good Faith, Controlling Defense, Preserving Attorney-Client Privilege

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


Conducted on Tuesday, September 14, 2021

Recorded event now available

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Course Materials

This CLE course will guide counsel who draft coverage position letters (CPLs) on how to craft a valid CPL and how to avoid waiving defenses when proceeding under a reservation of rights (ROR), and guide counsel who advise clients receiving CPLs on their effect. The program will show insurer counsel the necessity of careful drafting and the risks of waiving coverage defenses. Similarly, they will provide useful information for policyholder counsel regarding how to review, analyze, and, if necessary, respond to CPLs. The program will discuss critical issues that arise from a defense under an ROR, including the insurer's possible right to reimbursement of defense costs, potential conflicts of interest, control of the defense, and the impact of an ROR on defenses not explicitly waived.

Description

A CPL communicates to the policyholder the insurer's position regarding coverage for the claims at hand. A CPL is often the first and possibly most crucial communication that the insurer sends or the policyholder receives. At the time the CPL is written, facts are few, and knowledge is incomplete. A CPL should timely and fully disclose to the policyholder the insurer's coverage defenses. If the insurer denies coverage or provides a defense while seeking a declaratory judgment that no coverage exists, the letter must state that.

A well drafted CPL can help establish that the carrier has acted in good faith and help the carrier maintain control of the defense. An insufficient CPL can waive defenses, invite extra-contractual damages, or waive the attorney-client privilege. An effective CPL, especially an ROR letter, must do more than recite facts and list verbatim policy provisions. The letter must connect the specific facts to support the potential lack of coverage in plain English. Failure to do so will waive coverage defenses.

If the letter does not meet specific standards, it jeopardizes the insurer's right to reimbursement of defense costs, even if it later prevails on the coverage issue. Counsel must raise certain matters, including potential conflicts of interest, control of the defense, and the impact of an ROR on defenses that are not explicitly waived.

Listen as the panel guides counsel who draft CPLs on crafting a valid CPL and avoiding waiving defenses when proceeding under an ROR, as well as guides practitioners who advise clients receiving CPLs on their effect.

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Outline

  1. The requirements of an adequate CPL
  2. Avoiding claims adjusting and preserving the attorney-client privilege
  3. Critical issues raised by a defense under an ROR
  4. Impact of an ROR on defenses not explicitly waived
  5. Non-waiver agreements
  6. Non-execution agreements

Benefits

The panel will review these and other key issues:

  • What should a comprehensive ROR letter include, and what issues must the insurer consider?
  • How can the policyholder effectively respond to the insurer's agreement to defend under an ROR?
  • How do the courts assess arguments that an insurer may or may not be entitled to reimbursement of defense costs for purportedly uncovered claims?

Faculty

Dunsing, Christopher
Christopher R. Dunsing

Partner
Langhenry Gillen Lundquist & Johnson

Mr. Dunsing is an active coverage and litigation defense counsel practicing at the state and federal trial and...  |  Read More

Garbowski, Mark
Mark Garbowski

Shareholder
Anderson Kill

Mr. Garbowski is an attorney in the Insurance Recovery group in Anderson Kill's New York office. His practice...  |  Read More

Levin, Bradley
Bradley A. Levin

Shareholder
Levin Sitcoff

Mr. Levin focuses his practice on tort and commercial litigation, especially insurance bad...  |  Read More

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