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Insurance Estoppel and Waiver Amid Conflicting Case Law: Safeguarding Coverage, Navigating Insurer's and Insured's Duties

Recording of a 90-minute CLE video 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 Monday, March 25, 2024

Recorded event now available

or call 1-800-926-7926

This CLE course will analyze and explain critical estoppel and waiver issues for insurers and policyholders, including insurer conduct that supports claims, its impact on coverage claims, and conflicting court rulings on using the doctrine to allow, extend, or even create coverage.


Estoppel and waiver are defenses that policyholder often raises in insurance coverage cases that, when successful, can prevent insurers from raising otherwise viable exclusions and other coverage limitations. While related and similar, estoppel and waiver differ in their prima facie elements, burden of proof, and impact on coverage.

Estoppel and waiver arise most commonly in three different types of cases: (1) where the insurer or its agent acts in such a manner that the policyholder reasonably believed that a loss was covered; (2) where the insurer takes control of the insured’s defense without adequately reserving its rights and (3) where the insurer is tardy in its response to the insured’s claim. For the most part, these defenses rely on common law elements, although a few states, notably New York, provide statutory remedies. A key issue in all of these cases is whether the insurer’s inaction or misconduct may create coverage for claims that would otherwise never had been covered or whether a court may merely preclude an insurer from arguing that coverage was forfeited, as by untimely notice or policy exclusions.

Listen as our panel of experienced insurance practitioners provides their insight and analysis of this area of the law and explains the difference between these two doctrines and what steps both the insurer and insured can take to avoid changing or jeopardizing coverage.



  1. Estoppel and waiver in general
    1. Estoppel: elements and burden of proof
    2. Waiver: elements and burden of proof
    3. Prejudice to the insured
  2. What acts by the insurer constitute estoppel and waiver
  3. Effect of estoppel and waiver and creation of coverage
  4. Duties imposed on the insured and the doctrine of reasonable expectations: states that have and have not adopted


The panel will review these and other key issues:

  • Acts by the insurer that can support a claim of estoppel and/or waiver
  • Effect of estoppel and waiver on a claim for coverage
  • Whether and when coverage can be created under the doctrines of estoppel and waiver
  • Duties imposed on an insured and the applicability of the doctrine of reasonable expectations


Aylward, Michael
Michael F. Aylward

Morrison Mahoney

Mr. Aylward chairs the firm's complex insurance claims resolution group. For the past four decades, he has...  |  Read More

Kosek, Jason
Jason Kosek

Anderson Kill

Mr. Kosek focuses his practice on insurance recovery, exclusively on behalf of policyholders, as well as on regulatory...  |  Read More

McCabe, Sean
Seán McCabe

Anderson Kill

Mr. McCabe is an attorney in the New York office of Anderson Kill and a member of the firm’s White Collar...  |  Read More

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