The Implied Right to Recoupment--A Tale of Smoke and Mirrors
In recent years, more and more courts have recognized that, absent some bilateral agreement, insurers do not have the right to recoup costs spent defending a policyholder when it is later determined that no duty to defend existed.
Navigating Issues of Dual Representation Where Both Appointed Counsel and Independent Counsel Jointly Defend a Covered Lawsuit
In many cases, a defendant in a lawsuit may want to select their own lawyer, even if they believe that their liability insurance obligates the insurer to appoint one. If the defendant chooses to do so: “both the counsel provided by the insurer and independent counsel selected by the insured shall be allowed to participate in all aspects of the litigation. Counsel shall cooperate fully in the exchange of information that is consistent with each counsel’s ethical and legal obligation to the insured.”
Assuring Pre-Tender Fees Are Recoverable by Providing Proper Notice to Insurers
A Failure to Provide Notice Even Where it Does Not Preclude the Right to Any Defense May Limit a Client to Recovery Of Only Post-Notice Attorneys’ Fees.
Avoiding Malpractice by Providing Prompt Notice of Intellectual Property Claims to Insurers
“Intellectual property attorneys may have a duty to apprize their clients of the need to notify their clients’ insurers of claims as part of their retention in order to fully represent their clients’ interests in a lawsuit for which they are counsel of record.”
Insurers May Owe an Obligation to Defend Ongoing Lawsuits
Some policyholders, if queried, might presume that a lawsuit which incepts before they have a policy in force could not trigger coverage under that later-issued policy of insurance. Insurers would argue that no insurer would issue a policy that had a defense obligation as of the date of its inception so that a notice provided contemporaneously with the policy’s issuance would trigger any rights thereunder. Generally accepted insurance coverage principles, as applied to standardized commercial general liability policies, do not preclude coverage for claims/lawsuits alleging continuous tortious conduct which incept prior to issuance of “occurrence” based insurance. This article will explore circumstances where post-claim/lawsuit coverage may be available to policyholders.
Buried Treasure
Many professionals with Errors & Omissions Coverage may find that their insurance includes no “advertising injury” coverage despite their widespread use of digital marketing to reach potential new clients. One solution is to secure express coverage for intellectual property (“IP”) infringement claims through an insurer.