Policyholder's Duty to Cooperate: Advocating or Defending Against Loss of Coverage for Breach

Navigating Scope of the Duty, Privilege Issues, Settlement, and Consequences of Insured's Failure to Cooperate

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

Conducted on Thursday, March 23, 2017
Recorded event now available

This CLE webinar will discuss the scope of the insured’s duty to cooperate, the circumstances under which an insurer can disclaim coverage by alleging the insured breached that duty, the insurer’s burden of proof, and other issues that arise in this context such as attorney-client privilege and claim settlement.


The duty to cooperate clause imposes certain obligations on the insured to assist the insurer in investigating and defending third-party claims. For first-party claims, the insured has an obligation to provide relevant information or documents to the insurer. Breach of the duty may result in loss of coverage.

In order to disclaim coverage because of the insured’s breach of the duty to cooperate, the insurer must demonstrate that the insurer was actually prejudiced by the insured’s failure to cooperate. An insured’s passive non-responsiveness versus active collusion with a third-party claimant are distinguished.

A critical issue that arises in the context of the scope of the insured’s duty is the disclosure of privileged or confidential information by the insured. The duty to cooperate clause also impacts the insured’s ability to settle third-party claims directly with the claimant.

Listen as our authoritative panel of insurance practitioners examines the scope of the insured’s duty to cooperate with the insurer, what the insurer must demonstrate to disclaim liability because of a breach, and other thorny issues that arise in this context, such as the insured’s obligation to disclose confidential information protected by the attorney-client privilege and the insured’s right to settle directly with third-party claimants.


  1. Application and scope of the insured’s duty to cooperate
  2. First vs. third-party claims
  3. Coverage issues impacting the duty to cooperate
    1. Attorney-client privilege and disclosure of confidential information
    2. Claim settlement
    3. Consent to settle clause
  4. Insurer’s requirement to demonstrate prejudice
  5. Prejudice arguments—successful and unsuccessful


The panel will review these and other key issues:

  • What is the insurer’s burden of proof for disclaiming liability due to the insured’s failure to cooperate?
  • Under what circumstances might an insured be justified in refusing to cooperate with the insurer?
  • Does a defense under reservation of rights change the scope of the insured’s duty to cooperate?
  • How does the duty to cooperate impact the insured’s right to settle the claim?
  • Are there circumstances under which the insurer will be estopped from raising the insured’s breach of the duty?


Matthew L. Jacobs, Partner
Jenner & Block, Washington, D.C.

Mr. Jacobs has been successfully litigating insurance coverage matters for more than 25 years. He is a member of the firm’s Insurance Litigation and Counseling, Reinsurance, Antitrust and Competition Law, and International Arbitration Practices. Corporations seek his counsel on the availability of insurance coverage for a wide variety of claims, ranging from D&O liability to business interruption losses, product liability and regulatory investigations. He has published and lectured widely on insurance coverage topics.

Eliot M. Harris, Member
Williams Kastner, Seattle

Mr. Harris' practice focuses on commercial litigation with an emphasis on insurance coverage, including general liability coverage, intellectual property coverage, construction defect coverage, and professional liability coverage. He also is experienced defending lawsuits involving catastrophic personal injuries, environmental toxic tort, intellectual property and product liability matters. He wrote an article for the Business Litigation Committee Newsletter of the ABA, on insurer's duty to defend, The Duty to Defend: What Insurers, Insureds and Their Counsel Need to Know When Faced With a Liability Coverage Dispute.


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Insurance Law Advisory Board

John Broghammer


Greve Clifford Wengel & Paras

Tred Eyerly

Of Counsel

Damon Key Leong Kupchak Hastert

John D. Green


Farella Braun + Martel

Alan P. Jacobus


Law Offices of Alan Palmer Jacobus

William E. Kelley, Jr.


Drewry Simmons Vornehm

William O. Krekstein


Timoney Knox

Jay M. Levin


Reed Smith

Peter J. Mintzer


Selman Breitman

Barry S. Neuman


Whiteford Taylor Preston

Andrew G. Wanger


Clyde & Co.

Britton D. Weimer


Jones Satre & Weimer

Sandra I. Weishart


Hinshaw & Culbertson

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