Insurance Defense Costs: Allocation in Mixed Actions, Recoupment for Non-Covered Claims, Independent Counsel Fees

Maximizing Recovery or Limiting Exposure for Defense Costs

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

Conducted on Wednesday, July 26, 2017
Recorded event now available

This CLE webinar will discuss defense cost coverage issues, including allocating costs in mixed actions, the insurer’s right to recoup defense costs for non-covered claims, the insurer’s obligation to pay defense fees for insured’s independent counsel, and the insurer’s right to limit reimbursement through billing and litigation management guidelines.


The insurer’s duty to pay defense costs is frequently subject to dispute and litigation. One of the most commonly disputed issues includes the insurer’s extra-contractual right to recoup defense costs for underlying claims that are ultimately determined to not be covered.

And, the long-running coverage battle persists between insurance companies and policyholders on the allocation of defense costs between covered and uncovered claims and parties.

Other disputed issues include the insured’s right to reimbursement for defense costs incurred by retaining independent defense counsel and the insurer’s right to limit reimbursement through billing and litigation management guidelines.

Listen as our authoritative panel of insurance practitioners guides you through recent trends involving coverage for and recoupment of defense costs. The panel will discuss recent case law, as well as arguments for both policyholders' and insurers' positions regarding these issues and best practices for resolving disputes regarding these issues.


  1. Extra-contractual recoupment of defense costs by insurer
    1. Claims in underlying litigation ultimately found not covered
  2. Covered vs. non-covered claims or parties
    1. Allocation of defense costs
  3. Independent counsel paid for by insurer
    1. Reservation of rights
    2. Conflicts of interest
    3. Other scenarios
  4. Compliance with billing and litigation management guidelines


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 are best practices for allocating defense costs among covered and uncovered claims or parties?
  • What legal rationale best supports the insurer’s right to reimbursement of defense costs for uncovered claims?
  • Under what circumstances must the insurer cover the defense fees incurred by independent counsel retained by the policyholder?


William T. Barker, Senior Counsel
Dentons, Chicago

Mr. Barker focuses his practice in the area of complex commercial insurance litigation, including coverage, claim practices, sales practices, risk classification and selection, agent relationships, and regulatory matters. In addition to handling complex litigation, he counsels clients on insurance issues. He also advises and litigates on matters of lawyers' professional responsibility.

Helen K. Michael, Partner
Kilpatrick Townsend & Stockton, Washington, D.C.

Ms. Michael has over 20 years’ experience in complex commercial litigation, with emphasis on insurance coverage disputes. She has handled high-stakes cases in a wide variety of coverage areas including products liability, intellectual property claims, construction defect claims, and numerous others. Ms. Michael also has substantial experience in class action practice.

Sherilyn Pastor, Partner
McCarter & English, Newark, N.J.

Ms. Pastor is Practice Group Leader of her firm's Insurance Coverage Group. She is an experienced trial attorney, who has secured hundreds of millions of dollars in insurance for corporate policyholders. She litigates complex coverage matters throughout the country and abroad, and provides insurance coverage advice to clients assessing their potential risks, analyzing new insurance products, and considering the adequacy of their programs. She publishes and lectures frequently on insurance, trial skills and ethics matters. 


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Insurance Law Advisory Board

John Broghammer


Greve Clifford Wengel & Paras

Tred Eyerly


Damon Key Leong Kupchak Hastert

John D. Green


Farella Braun + Martel

Alan P. Jacobus

Lafayette & Kumagai

William E. Kelley, Jr.


Drewry Simmons Vornehm

William O. Krekstein


Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer


Selman Breitman

Barry S. Neuman


Whiteford Taylor Preston

Andrew G. Wanger


Clyde & Co.

Britton D. Weimer


Weimer & Weeding

Sandra I. Weishart


Hinshaw & Culbertson

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