The following link includes a survey of recent California cases on the duty to defend prepared by and posted with the permission of the Insurance Coverage Litigation & Counseling Practice Group at Meckler Bulger Tilson Marick & Pearson, LLP. The attached survey identifies and elaborates on the following seven fundamental issues that may assist claims professionals, insureds and counsel in making decisions about how to appropriately respond to complaints or claims tendered for a defense:
1. What is the standard for determining whether an insurer has a duty to defend?
2. Under what circumstances may the insurer consider information not contained in the policy or underlying complaint in determining whether it has a duty to defend?
3. Must an insurer defend a lawsuit if only some of the facts alleged or counts included in the underlying complaint are covered?
4. Under what circumstances may an insured select its own defense counsel to be paid for by the insurer?
5. What are the consequences of breach of duty to defend?
6. When an insurer pays for defense in a matter where only some of the claims alleged in an underlying case are covered by the policy, may the insurer recoup from the insured the defense costs allocable to the claims that are not covered?
7. Can an insured who prevails in coverage litigation (brought either by the insurer or the insured) recover from the insurer the attorney’s fees expended by the insured for litigating coverage, without demonstrating common law or statutory bad faith?
Meckler Bulger Tilson Marick & Pearson, LLP. (2010). Duty to Defend: A Fifty-State Survey. Chicago, Illinois. Author.