Legal writing too often is turgid and just flat out nap-time boring. So I look forward to reading articles by attorney Randy Maniloff, because he writes clearly and simply, and isn’t afraid to use a colorful turn of phrase. This is an excellent article by Randy analyzing the state of the law on an insurer’s ability to get reimbursement for defense costs for uncovered claims.
As Randy points out, the pro-reimbursement and anti-reimbursement decisions are about evenly decided. I find the anti-reimbursement decisions to be more consistent with keeping courts from analyzing the duty to defend in light of the duty to indemnify, a mistake that is not as infrequent as you might hope. For an example, see this post from yesterday. As Randy and I discussed by e-mail, insurers could decide the issue themselves with policy language creating a right to reimbursement for uncovered claims, or even with language eliminating the duty to defend entirely. What keeps them from doing so? Fear that folks wouldn’t buy their policies and would turn to other insurers.