Insurer's Breach of Duty to Defend: Navigating Divergent Court Rules on the Subsequent Right to Contest Coverage

Insurer and Policyholder Perspectives on the Loss or Preservation of Policy Defenses After Defense Obligation Breached

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

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Conducted on Wednesday, September 2, 2015

Recorded event now available

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Course Materials

This CLE course will analyze the consequences of an insurer’s breach of the duty to defend with respect to its duty to indemnify and other defenses available to the insurer. The program will look at how various jurisdictions disallow the insurer from pursuing certain defenses to those that totally bar the insurer from contesting liability and those that allow insurers unfettered right to contest liability and rely on other coverage defenses.


In many jurisdictions, an insurer retains unfettered rights to rely on certain policy exclusions and other coverage defenses for indemnity purposes if it is later determined to have wrongfully denied coverage.

In many jurisdictions, however, the insurer’s right to contest its indemnity obligation is not separate and apart from any issue of its duty to defend. Some of the vexing issues flowing from breach of the duty include waiving other coverage defenses involving conditions such as notice, consent to settle, and cooperation. 

Other states apply a broad estoppel rule totally denying the insurer from contesting liability and some would argue that the broad estoppel rule is gaining traction. Counsel for both insurers and policyholders must understand and stay abreast of evolving case law regarding the consequences of the insurer’s breach of the duty.

Listen as our authoritative panel of insurance practitioners discusses the consequences of an insurer’s breach of the duty to defend with respect to its duty to indemnify and other defenses available to the insurer. The panel will discuss the approaches taken by various jurisdictions in response to a breach of the duty and whether the insurer is estopped from contesting coverage or pursuing other policy defenses.



  1. Overview of insurer’s duty to defend
  2. Consequences of the insurer’s breach of that duty
    1. No limitations on insurer’s other defenses
    2. Limitations on conditions defenses (notice, consent to settle, and cooperation)
    3. Total estoppel rule
  3. Best practices for insurers and policyholders to argue their respective positions


The panel will review these and other key issues:

  • What courts have adopted the estoppel rule and what is the rationale for denying the insurer the right to contest coverage?
  • What other limitations might insurers face in the finding that they breached the duty to defend?
  • What are best practices for insurers to minimize risk when denying that they have a duty to defend?


Gregory Lahr
Gregory Lahr


Mr. Lahr litigates complex commercial disputes in state and federal courts and before arbitration panels, with an...  |  Read More

Christopher C. Loeber
Christopher C. Loeber

Lowenstein Sandler

Mr. Loeber represents Fortune 500 and other large corporate policyholders in a broad range of complex insurance...  |  Read More

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