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Pleading Into Coverage and the Duty to Defend: Strategies to Enhance Insurer Involvement

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 Tuesday, February 28, 2023

Recorded event now available

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This CLE webinar will instruct insurance litigators on how to plead allegations that fall within a policy's coverage grant but outside the policy's exclusions when alleging the underlying claims that trigger coverage and the duty to defend. The program will identify mistakes that can get complaints dismissed although the underlying facts of the claim are within coverage. The panel will also speak to the issue of "inartful" pleading that attempts to trigger the duty to defend an excluded claim.


Coverage turns almost entirely on how the underlying actions are pleaded. Thus, insurance litigators want to discover available insurance policies and then draft pleadings--whether plaintiff or defense--that trigger the available coverage and the duty to defend.

Problems arise because the facts crucial to establishing coverage often have no bearing on liability. Thus, attorneys can plead too little, leaving out facts demonstrating coverage and giving the insurer ample ground to argue it has no duty to defend the policyholder.

Attorneys can also plead too much and end up pleading "outside of coverage." The complaint may contain causes of action that are covered, but the facts alleged only support a non-covered or excluded claim. Although pleading "outside of coverage" is not always fatal to the duty to defend or to coverage, it can create a host of unnecessary complications and dampen insurer involvement.

Listen as this experienced panel instructs insurance litigators how to plead covered claims and how to avoid mistakes that can cause a complaint to be dismissed even when the underlying facts of the claim are within coverage.



  1. Benefits of triggering duty to defend
  2. Strategies for identifying available policies
  3. Identifying and pleading facts needed to trigger coverage
  4. Avoiding triggering exclusions
  5. Remedies for "under" and "over" pleading
  6. "Inartful" pleading and uncovered claims


The panel will review these and other critical issues:

  • Are there ever situations where a policyholder would want to avoid coverage?
  • Are there ever situations where the plaintiff would want to avoid coverage?
  • What happens if the complaint fails to allege undisputed facts that, had they been alleged, would have triggered the insurer's duty to defend?
  • If an extrinsic fact is relevant to determining coverage, but not liability, can it be considered by an insurer when deciding the duty to defend?


Cooper, R. Brent
R. Brent Cooper

Cooper & Scully

Mr. Cooper focuses his practice on commercial litigation, insurance litigation, and appellate practice. He has had...  |  Read More

Gerstle, Michael
Michael Gerstle

Founding Partner
Gerstle Snelson

Mr. Gerstle provides advice, counsel and representation to clients throughout the State of Texas regarding many...  |  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

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