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Vol. 7, Iss. 4
May 9, 2018


Coverage Issues: So Just What Are The Majority Rules?

29 States Potentially Afford Independent Counsel For An ROR Defense


One of the comments I often hear from readers of Insurance Key Issues is that when they see a coverage issue, set out in a detailed 50 state survey, they realize that the majority rule is not what they thought it was. Or, they had the majority rule correct, but it is more of a majority, or less of one, than they thought.

Based on the 50 state surveys in the 4th edition of Insurance Key Issues, I calculated “scorecards” on the following issues:

Duty to Defend
33 states may look to extrinsic evidence to determine if an insurer is obligated to defend

Insurability of Punitive Damages
38 states potentially afford coverage for punitive damages

Insured’s Right to Independent Counsel
29 states potentially afford independent counsel to an insured being defended under an ROR

Prevailing Insured’s Right To Recover Attorney’s Fees:
45 states have the possibility of an insured recovering its DJ fees

Insurer’s Right to Reimbursement of Defense Costs
18 states support an insurer not being permitted to seek reimbursement of defense costs
(12 states have not addressed the issue)

Emotional Injury as “Bodily Injury”
27 states support a determination that emotional injury can qualify as “bodily injury”

Super Bowl LII
Eagles 41, Patriots 33

Is this what you thought the scores were?

To see a detailed, state by state, analysis of how these scores were calculated – and surveys of 14 more issues -- check out the 4th edition of Insurance Key Issues – Released as the #1 New Law Book On Amazon.



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