Preserving Privilege

 Friday, March 5, 2021

 CLM Magazine

An insurer’s duty to afford coverage to an insured may depend, in large part, upon the nature of the claim asserted against the insured in an underlying demand or complaint as compared to the language of the policy.

Those documents will usually be the focal point of any initial coverage determination, and a decision on coverage may be evident from those documents alone.

Oftentimes, however, nuances of insurance-coverage law in certain jurisdictions may play a pivotal role in determining whether a claim is covered.

Choice of law rules, policy-interpretation standards, and public-policy considerations may not be uniform between courts in every state.

Given the variations in policy language and the diverse views of courts from jurisdiction to jurisdiction on policy interpretation, carriers will frequently seek the advice of coverage counsel to assist in making a determination of their legal obligations to their policyholders. In that scenario, the insurer is justified in expecting that communications with that counsel remain protected by the attorney-client privilege.