The Insurer’s Duty to Defend: Issues and Analysis

Because of its importance to both policyholders and insurers, the duty to defend has been - and continues to be - extensively litigated. This book analyzes key aspects of the duty to defend in a practical fashion. It is a day-to-day resource for lawyers for both insurers and policyholders, as well as for courts. The book begins in Chapter One with a discussion of fundamental aspects of the duty to defend and concludes in Chapter Eleven with an examination of nonexecution agreements and consent judgments. The chapters in between cover insurers’ defenses under reservations of rights and nonwaiver agreements; conflicts of interest in insurance defense; insurers’ occasional duty to defend offensively, that is, to prosecute counterclaims, crossclaims, and third-party claims on insureds’ behalf; insurers’ duty to defend post-judgment proceedings in trial courts and their duties to defend and prosecute appeals; the termination of the duty to defend; the often controversial subject of insurers’ right to recoup defense costs incurred in connection with uncovered claims or causes of action; the allocation of defense costs; the consequences of an insurer’s breach of the duty to defend; and defenses under defense-cost-indemnification polices. The authors of these chapters are gifted lawyers and scholars with deep experience in the issues on which this book trains a lens.