circumstances and not necessarily correlate with policy limits: Economic Multiple Liability Policies: Which insurer Auto: Mutual defends? In V Act s. 79 primary insurer conducts claim, advise named insured to notify excess insurer if claim likely to exceed limit of primary policy. Excess insurer may request to be part of investigation and defence Excess insurer shares equally with primary insurer all costs associated with claim, regardless of final outcome of claim. If parties contest, whoever has the greater risk of loss gets to defend (usually will be primary but could be excess in certain circumstances) Monenco When should duty to defend be assessed? However doesn’t mean it can always Preliminary matter work this way. In scarela and Nichols, Straight forward, do at beginning, both were after insured brought claim unless there are questions about for costs against insurer at end of the validity of K in the first place litigation. (i.e. breach of disclosure) Longo When outstanding coverage issues Also consider (Drane NBCA) ONCA 200 Case by case basis Is breach of condition Issue: should insurer have to contested? On what basis? defend 3rd party action, while Serious dispute? there are ongoing validity of K Is ti reasonable to expect the q issues with insured? of breach of condition to be Consider: dealt with on expedited basis? Relative strength of positions Despite clear breach of stat asserted by the insurer and the cond., are there circumstances insured that militate in favour of relief The necessity and urgency to from forfeiture furnish the insured with a separate Is estoppel invoked? defence What is the status of the main action against the insured? What is the nature of the conlifct between insured and insurer? Does the conflict between insured and insurer require separate and independent counsel to adequately represent the interests of the insured? Is insured capable of assuming costs of independent counsel until issue of breach of condition resolved?
circumstances and not necessarily correlate with policy limits: Economic Mutual Multiple Liability Policies: Which insurer defends? primary insurer conducts claim, advise named insured to notify excess insurer if claim likely to exceed limit of primary policy. Excess insurer may request to be part of investigation and defence Excess insurer shares equally with primary insurer all costs associated with claim, regardless of final outcome of claim. If parties contest, whoever has the greater risk of loss gets to defend (usually will be primary but could be excess in certain circumstances) Auto: In V Act s. 79 Monenco When should duty to defend be assessed? Preliminary matter Straight forward, do at beginning, unless there are questions about the validity of K in the first place (i.e. breach of disclosure) However doesn’t mean it can always work this way. In scarela and Nichols, both were after insured brought claim for costs against insurer at end of litigation. Longo ONCA 200 When outstanding coverage issues Case by case basis Issue: should insurer have to defend 3rd party action, while there are ongoing validity of K issues with insured? Consider: Relative strength of positions asserted by the insurer and the insured The necessity and urgency to furnish the insured with a separate defence Also consider (Drane NBCA) Is breach of condition contested? On what basis? Serious dispute? Is ti reasonable to expect the q of breach of condition to be dealt with on expedited basis? Despite clear breach of stat cond., are there circumstances that militate in favour of relief from forfeiture Is estoppel invoked? What is the status of the main action against the insured? What is the nature of the conlifct between insured and insurer? Does the conflict between insured and insurer require separate and independent counsel to adequately represent the interests of the insured? Is insured capable of assuming costs of independent counsel until issue of breach of condition resolved?
191-Thomson-_Law_344-_Final_Long.docx