Insurer’s Duty to Defend: Navigating Flexibility in the “Eight Corners” Rule, Withdrawal from an Ongoing Defense and More

Advocating Complex Defense Duty Issues From Insurer and Policyholder Perspectives

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


Conducted on Thursday, August 17, 2017
Recorded event now available


This CLE webinar will discuss three important aspects of a liability insurer’s duty to defend: (1) determining an insurer’s duty to defend from pleadings and other sources; (2) circumstances when an insurer can withdraw from a defense; and (3) sometimes overlooked issues where there is collusion in the insurer-insured-claimant relationship. The program will look at how various jurisdictions interpret these thorny issues and best arguments from the perspective of both insurers and policyholders.

Description

The “eight corners” rule. The “eight corners” rule requires that when deciding whether an insurer has a duty to defend, the court should examine only the “four corners” of the policy and the allegations in the “four corners” of a claimant’s complaint against the insured. But, some courts have looked beyond those documents to determine whether the insurer’s duty to defend is implicated. This program explores what courts have looked to beyond the “eight corners” of the policy and the complaint, and whether courts that have done so have provided principled guidance for parties determining whether a duty to defend exists.

Terminating a defense. Sometimes circumstances change after an insurer has agreed to defend its insured. If so, can the insurer terminate the defense? The program evaluates this question in situations such as where the policy limits are exhausted by settlement or payment of judgment and where a claimant’s potentially covered claims in its suit against the policyholder are no longer at issue.

Collusion and the duty to defend. When defense under a liability policy is at issue, various parties, including the insurer, the insured, and the claimant that has made a claim against the insured, have an interest in whether the insurer will assume the insured’s defense against the claimant’s claim. Sometimes, two of the three parties will attempt to tip the scales to manipulate the defense obligation. Is this ever proper? What remedies does the odd-party-out have when the other two parties collude to attempt to influence the defense obligation? The program will explore these questions and more.

Listen as our panel of attorneys provides guidance to insurance coverage counsel regarding the scope of the insurer’s duty to defend. The panel will look at these complex issues and provide insight into how they affect the duty to defend. The program will look at how various jurisdictions interpret these thorny issues and best arguments from perspectives of both insurers and policyholders.

Outline

  1. Determining the duty to defend under the “eight corners” rule and beyond.
  2. An insurer’s withdrawal from an ongoing defense.
  3. The role of collaborative efforts by the parties interested in a liability policy to influence defense or coverage outcomes.

Benefits

The panel will review these and other key issues:

  • What standards are courts applying to determine the duty to defend? What strategies are available to the insurer and the policyholder when information outside of the liability policy and the pleadings potentially affects whether a duty to defend exists?
  • Under what circumstances can a defending insurer terminate that defense if circumstances change? What can an insured do to protect itself if an insurer is trying to withdraw a defense?
  • Are there any circumstances where it is permissible for an insured and a claimant or an insurer and a claimant to cooperate to influence defense or coverage obligations? What can the parties do to protect their interests if those interests will be affected by the cooperation between other parties?

Faculty

Kirsten C. Jackson, Esq.
Kasowitz Benson Torres, Los Angeles

Ms. Jackson works on behalf of companies to recover insurance assets. She assists in obtaining millions of dollars in insurance coverage for clients under CGL, professional liability, D&O liability, E&O liability, and life insurance. Ms. Jackson is experienced in all stages of litigation and non-adversarial dealings with insurers, including coverage analysis and advising, claims correspondence, mediations, pleadings, written discovery, document production, depositions, motion practice, trial preparation, and settlement.  

Alan P. Jacobus
Lafayette & Kumagai, Oakland, Calif.

Mr. Jacobus' practice over the past decade has largely centered on high risk, high value insurance coverage litigation, but he comes from a broad civil and commercial litigation and trial background. He has tried jury trials to verdict in CA, IL and LA. Several of his cases have resulted in written opinions in trial courts and courts of appeal, and he has argued appeals in both state and federal courts.


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Insurance Law Advisory Board

John Broghammer

Partner

Greve Clifford Wengel & Paras

Tred Eyerly

Director

Damon Key Leong Kupchak Hastert

John D. Green

Partner

Farella Braun + Martel

Alan P. Jacobus

Lafayette & Kumagai

William E. Kelley, Jr.

Partner

Drewry Simmons Vornehm

William O. Krekstein

Partner

Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer

Partner

Selman Breitman

Barry S. Neuman

Partner

Whiteford Taylor Preston

Andrew G. Wanger

Partner

Clyde & Co.

Britton D. Weimer

Partner

Weimer & Weeding

Sandra I. Weishart

Partner

Hinshaw & Culbertson

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