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.


CLE On-Demand - Streaming Video

Includes recorded streaming video of full program plus PDF handouts.

On-demand is the only recorded format recognized for CLE credits in DE, IN, KS, LA, MS, NC, OH, OK, SC, TN, VA, WI.

AK, AZ, CA, CO, CT, DE, FL, GA, HI, IA, ID, IL, IN*, KS, KY, LA, ME, MN, MO, MT, NC, ND, NH**, NJ, NM, NV, NY, OH*, OK, OR, PA, SC, TN, TX, UT, VA, VT, WA, WI, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

*Only available for attorneys admitted for more than two years. For OH CLE credits, only programs recorded within the current calendar year are eligible - contact the CLE department for verification.

**NH attendees must self-determine if a program is eligible for credit and self-report their attendance.

CLE On-Demand Video $297.00

How does this work?

Recorded Event

Includes full event recording plus handouts.

Strafford is an approved provider and self-study CLE credit is available in most states.

AK, AZ, CA, CO, CT, FL, GA, HI, IA, ID, IL, KY, ME, MN, MO, MT, ND, NJ, NM, NY, OR, PA, TN, TX, UT, VT, WA, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

Strafford will process CLE credit for one person on each recording.

Additional copies of a recording can be purchased at a discount. Please call Strafford Customer Service toll-free at 1-800-926-7926 ext 10 or email customerservice@straffordpub.com to place your order.

Recorded Webinar Download $297.00

How does this work?

Recorded Audio Download (MP3) $297.00

How does this work?


Strafford webinars offer several options for participation: online viewing of speaker-controlled PowerPoint presentations with audio via computer speakers or via phone; or audio only via telephone (download speaker handouts prior to the program).  Please note that our webinars do not feature videos of the presenters.

Program Materials

Requires Adobe Reader 8 or later. Download Acrobat FREE.

Program Materials

Requires Adobe Reader 8 or later. Download Acrobat FREE.

or call 1-800-926-7926

CLE Credits

Many states grant CLE credits for on-demand streaming audio programs and recorded events. Our programs are pre-approved in many states. Refer to our state CLE map for state-specific information.

or call 1-800-926-7926

Customer Reviews

I thought the content was substantive.

Debra Curcio Lister

Miller Thomson

The subject was presented in an accessible fashion, and the question and answer session was one of the best I've attended. The Strafford speakers were well-informed and provided information to enable listeners to effectively research specific issues.

Tricia Le Meur

Phillips Parker Orberson & Arnett

I like the materials, the experts and the convenience of Strafford webinars.

Valerie Fisher

Ater Wynne

I very much liked the format, and I appreciated the handouts and links we were provided as a result of our participation...very thorough materials.

Addie Arvidson

Slattery, Marino & Roberts

 The program was extremely informative, easy to access and very organized.

Jennifer Root

Fineman Krekstein & Harris

or call 1-800-926-7926

Insurance Law Advisory Board

John Broghammer


Greve Clifford Wengel & Paras

Tred Eyerly


Damon Key Leong Kupchak Hastert

John D. Green


Farella Braun + Martel

Alan P. Jacobus

Lafayette & Kumagai

William E. Kelley, Jr.


Drewry Simmons Vornehm

William O. Krekstein


Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer


Selman Breitman

Barry S. Neuman


Whiteford Taylor Preston

Andrew G. Wanger


Clyde & Co.

Britton D. Weimer


Weimer & Weeding

Sandra I. Weishart


Hinshaw & Culbertson

or call 1-800-926-7926

Our Guarantee

Strafford webinars are backed by our 100% Unconditional Money-Back Guarantee: if you are not satisfied with any of our products, simply let us know and get a full refund. For more information regarding complaints and refunds, please contact us at 1-800-926-7926 ext 10. Complaints regarding this program can be submitted via the course evaluation found in the “Thank you” e-mail at the end of the course.