Excess Insurer's Duty to Defend and Indemnify: Exhaustion, Claims Not Covered by Primary, Defense Cost Reimbursement

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, February 15, 2018

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide counsel to insurers and policyholders with an analysis of the scope of an excess insurer’s duty to defend and indemnify and a review of the most commonly disputed issues and how to respond.


Key questions regarding applicability of excess liability insurance have become hotly contested in many Directors & Officers Liability Insurance and mass-tort or mass product-liability matters. Yet, few practitioners have extensive hands-on experience in this area.

Long-running coverage cases are finally presenting excess insurance questions to appellate courts, and complex trials – and worse, do-overs of trials – are increasingly common in high dollar, complex coverage disputes involving excess insurance.

Listen as our authoritative panel of insurance practitioners discusses the nature and extent of an excess insurer’s duties, and the policyholder’s responsibilities as well, and provides insurer and policyholder counsel with arguments to resolve the frequently disputed issues that arise in the vital context of excess insurance.



  1. Scope of the duty to defend
    1. Absence of underlying exhaustion
    2. Claims not covered by primary insurer
    3. Insolvency of primary insurer
  2. Duty to reimburse defense costs
    1. Consent requirement
    2. Interpretation of definition of loss
    3. Reasonableness of defense costs


The panel will review these and other key issues:

  • Will the excess insurer be obligated to reimburse the insured for defense costs—or assume the principal obligation to defend?
  • Must an excess insurer contribute to a settlement if the primary policy has not in fact paid its full limits (sometimes referred to as the Zeig issue) and are insurance policies changing in response to decided cases?
  • Will the insolvency of the primary insurer trigger the excess policy to drop down to provide a defense?
  • How can counsel address exhaustion of primary coverage in mass tort or major liability litigation such that excess coverage is in play?
  • The inconsistency of courts in demanding strict analysis and adherence to policy language and how should counsel prepare?
  • Is the defense obligation of an excess insurer outside of policy limits or subject to the policy limit for “ultimate net loss”?


Mayerson, Marc
Marc S. Mayerson

The Mayerson Firm

Mr. Mayerson specializes in complex insurance-coverage disputes including litigation, settlement and advice, and...  |  Read More

Seaman, Scott M.
Scott M. Seaman

Co-Chair Global Insurance Services Practice Group
Hinshaw & Culbertson

Mr. Seaman is a commercial litigator and trial lawyer with more than 35 years of experience. Scott is widely regarded...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video