Pleading Into Coverage and the Duty to Defend: Strategies to Enhance Insurer Involvement

Coverage turns almost entirely on how the underlying actions are pleaded. Thus, insurance litigators want to discover available insurance policies and then draft pleadings--whether plaintiff or defense--that trigger the available coverage and the duty to defend.

Problems arise because the facts crucial to establishing coverage often have no bearing on liability. Thus, attorneys can plead too little, leaving out facts demonstrating coverage and giving the insurer ample ground to argue it has no duty to defend the policyholder.

Attorneys can also plead too much and end up pleading "outside of coverage." The complaint may contain causes of action that are covered, but the facts alleged only support a non-covered or excluded claim. Although pleading "outside of coverage" is not always fatal to the duty to defend or to coverage, it can create a host of unnecessary complications and dampen insurer involvement.

Listen as this experienced panel instructs insurance litigators how to plead covered claims and how to avoid mistakes that can cause a complaint to be dismissed even when the underlying facts of the claim are within coverage.

I. Benefits of triggering duty to defend

II. Strategies for identifying available policies

III. Identifying and pleading facts needed to trigger coverage

IV. Avoiding triggering exclusions

V. Remedies for "under" and "over" pleading

VI. "Inartful" pleading and uncovered claims

The panel will review these and other critical issues:

• Are there ever situations where a policyholder would want to avoid coverage?
• Are there ever situations where the plaintiff would want to avoid coverage?
• What happens if the complaint fails to allege undisputed facts that, had they been alleged, would have triggered the insurer's duty to defend?
• If an extrinsic fact is relevant to determining coverage, but not liability, can it be considered by an insurer when deciding the duty to defend?