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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

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 Wednesday, July 26, 2017

Recorded event now available

or call 1-800-926-7926

This CLE course 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?


Barker, William
William T. Barker

Senior Counsel

Mr. Barker focuses his practice in the area of complex commercial insurance litigation, including coverage, claim...  |  Read More

Helen K. Michael
Helen K. Michael

Kilpatrick Townsend & Stockton

Ms. Michael has over 20 years’ experience in complex commercial litigation, with emphasis on insurance coverage...  |  Read More

Pastor, Sherilyn
Sherilyn Pastor

McCarter & English

Ms. Pastor is Practice Group Leader of her firm's Insurance Coverage Group. She is an experienced trial...  |  Read More

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