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Insurer's Duties to Excess Carrier and Bad Faith: Litigating Cooperation, Settlement, and Disclosure

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 Thursday, September 29, 2022

Recorded event now available

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This CLE webinar will guide counsel through the duties and rights between primary and excess carriers, the primary carrier's potential for extracontractual damages to the excess insurer, and the potential for the excess insurer to incur extracontractual damages for breaching its duties to the primary or the insured. The panel will address solutions to problems that can surface when the primary insurer zealously advocates against liability while trying to accurately discuss risk with the excess carrier.


The duties and obligations existing between the primary insurer and the excess insurer that has contracted with the insured are labyrinthine. The primary insurer and the excess insurer both have a contract with the insured, but not with each other.

Untangling the web of issues requires understanding the relationship between the different insurers and how different jurisdictions have dealt with the myriad conflicts that arise.

The excess insurer enjoys a right to cooperation from both its insured and the primary insurer. The primary insurer has an implied duty to advise the excess insurer of potential excess exposure and to fairly and in good faith handle and negotiate the settlement of a claim within the primary limits. When these obligations are breached, the excess carrier may have claims against the primary insurer or the insured.

Listen as this experienced panel discusses the bases for actions by and against the excess carrier, the typical fact patterns giving rise to claims, and current strategies for both the primary and the excess carrier.



  1. Duties owed to excess insurer
  2. Extra-contractual theories of liability
  3. Extra-contractual liability for excess carrier


The panel will review these and other key issues:

  • What duties are owed to the excess carrier by the insured and the primary carriers?
  • When do the duties owed to the excess carrier arise?
  • What duties does the excess carrier owe to the other insureds and insurers?
  • Are there fact patterns where the primary would be prohibited from fulfilling its duties to the excess carrier?
  • Who controls the relevant privileges?


Miscioscia, Anthony
Anthony L. Miscioscia

White and Williams

Mr. Miscioscia has a broad range of experience in complex insurance coverage, bad faith and commercial litigation...  |  Read More

Montague, Celestine
Celestine M. Montague

White and Williams

Ms. Montague has a broad range of experience in complex and emerging issues in insurance coverage and commercial...  |  Read More

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