TENDER THE DEFENSE OF A LAWSUIT TO YOUR LIABILITY CARRIER

imagesSometimes you come across a head scratcher.  This would be a decision that does not seem to make a whole lot of sense.  For instance, if you are sued and you maintain liability insurance that would potentially provide you a defense and indemnification, not notifying your insurance carrier is a head scratcher.  You pay substantial dollars towards the premium of that policy.  So, not then notifying your carrier about a lawsuit is a head scratcher, and I mean a head scratcher!!   If you are sued, not only should the carrier be notified, but the defense of that lawsuit should be tendered to your liability carrier. 

 

This madness is exactly what occurred in Embroidme.com, Inc. v. Travelers Property Casualty Co. of America, 2017 WL 74694 (11th Cir. 2017) where an insured was sued and incurred over $400,000 in legal fees (yes, I said that amount right!) before notifying its liability carrier and tendering the defense of the lawsuit to its carrier.  The liability carrier, upon notification, picked up the defense of its insured but refused to reimburse the insured for the pre-tender legal fees the insured incurred.  Although the court gives a lengthy discussion on Florida’s Claim Administration Statute (Florida Statute s. 627.426) based on a very crafty argument by the insured, the bottom line is that the insurer was not liable to the insured for pre-tender litigation fees the insured incurred prior to tendering the claim to its insurer.   See Embroidme.com, Inc., supra, at *13 (finding that the Claims Administration Statute “does not apply to prevent Travelers [insurer] from enforcing a provision of the liability insurance policy that excludes EmbroidMe [insured] from obtaining reimbursement for attorney’s fees it chose to incur prior to requesting Travelers to defend and indemnify it in its pending litigation.”).

 

Again, if you have liability insurance and a claim / lawsuit is asserted against you, there is generally no reason not to notify the insurer of the lawsuit and tender the defense of that lawsuit to the insurer.   If you don’t you can wind up like the insured in this case which is to expend over $400,000 in legal fees  (when the carrier owes you a defense) that is not reimbursable.  This doesn’t make sense—a head scratcher—considering the premium you pay to your insurer. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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