On December 11, 2019, an appellate court in the State of Illinois ruled that Liberty Mutual Fire Insurance Company had no duty to defend or indemnify its insured in the underlying litigation and also had a valid right to be reimbursed for defense expenses paid pursuant to a specific endorsement in the policy. Before discussing this further, let’s go back to 1997.

In February 2013, Dr. Jerry Buss, long-time owner of pro basketball’s Los Angeles Lakers and hall of famer, died at the age of 80. Aside from a legacy of world championships, he also left one for the insurance industry in the form of a California Supreme Court case decided in 1997, Buss v. Superior Court, 16 Cal. 4th 35 (Cal. 1997), probably the leading case supporting the right of an insurer to seek reimbursement for expenses incurred in the defense of causes of action that are not potentially covered under the policy.

It is common that the defense of an insured is conducted under a reservation of rights due to coverage issues. The reservations may include the right to seek reimbursement for defense expenses paid. Because the duty to defend is very broad, and because the insurer must defend the entire action, some jurisdictions provide for the right to reimbursement of defense expenses specific (solely) to causes of action that are not potentially covered in a mixed action.

The Buss case is probably the poster child for this right to reimbursement. In the underlying case against Buss and others, H&H Sports had contracted with Buss to provide advertising and other services. A dispute between the parties evolved into a lawsuit in which 27 causes of action were asserted, including count 23 for defamation. Buss’ insurer defended the entire lawsuit on the premise that only the defamation count was potentially covered.

The central issue was whether the insurer could recover the expenses incurred in the defense of its insured that were specific to the non-covered causes of action. The Supreme Court ruled that the insurer had the right to reimbursement of expenses in the defense of specific causes of action that are not potentially covered. Furthermore, the insurer has the burden to demonstrate that the expenses related solely to the uncovered cause of action. And this burden is by a preponderance of evidence. Buss 3940

Buss, then, provided that in a “mixed” action, or an action in which some of the causes are not potentially covered while others are, the insurer can seek reimbursement for expenses paid solely to defend the causes of action that are not potentially coverage, and the insurer has the burden, by a preponderance of evidence, of making the distinction.

But as a noted commentator points out, theory and practice are significantly different, and the burden on the insurer to make that distinction may not be an easy one:

the Buss rule is more valuable in theory than practice. The court held that “an insurer is only entitled to recover those defense expenses which can be fairly and reasonably allocated solely to non-covered claims for which there never was any potential for coverage.1

1 Randy Maniloff, Reimbursement of Defense Costs, An Insurer’s Duty to Defend or Duty to Lend, FC&S Online (the National Underwriter Company 2006, Ohio) M.28-3.

Of course, while California is a bellwether state in many instances, not every jurisdiction always follows its lead. For example, in 2010, the Supreme Court of Pennsylvania ruled in Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 606 Pa. 584 (Pa. 2010) that the right of reimbursement should be included in the insurance policy if the insurer wishes to preserve this right, as opposed to creating a new contractual obligation by way of an unilateral reservation of rights letter within which the insurer attempts to preserve its right to reimbursement and where the insured accepts the defense.2 The Court also rejected the insurer’s argument that the insured was unjustly enriched for receiving the defense:

…Royal cannot employ a reservation of rights letter to reserve a right it does not have pursuant to the contract…the policy here did not provide for a right of reimbursement of defense costs for non-covered claims. A reservation of rights letter asserts defenses and exclusions that are already set forth in the policy…We are persuaded that permitting reimbursement by reservation of rights, absent an insurance policy provision authorizing the right in the first place, is tantamount to allowing the insurer to extract a unilateral amendment to the insurance contract…A reservation of rights letter “does not relieve the insurer of the costs incurred in defending its insured where the insurer was obligated, in the first instance, to provide such a defense”…Absent the creation of a new contract through the reservation of rights letters, there is no contractual basis upon which to order Insured to reimburse Royal for defense costs. Am. & Foreign Ins. Co. 614-615

Nor are we persuaded that there are any equitable bases upon which to grant a right to reimbursement…

Insured was not unjustly enriched…Royal had not only the duty to defend, but the right to defend under the insurance contract. This arrangement benefited both parties. The duty to defend benefited Insured to protect it from the cost of defense, while the right to defend allowed Royal to control the defense to protect itself against potential indemnity exposure. Am. & Foreign Ins. Co. 615-616

2 Randy Maniloff and Jeffrey Stempel, General Liability Insurance Coverage/Key Issues in Every State (New York, NY, Oxford University Press, Inc. 2012, 2nd ed.) 164.

In Pennsylvania, then, an insurer’s right to recoupment of expenses incurred in the defense of a claim or cause of action that is not potentially covered must be provided for in the insurance policy, and cannot be preserved in a simple, unilateral reservation of rights letter extrinsic to the policy.

In Liberty Mutual Fire v. Ferrara Candy, 2019 IL App (1st) 181385-U Liberty Mutual prevailed on its duty to defend and indemnify its insured in the underlying case as well as in its pursuit of reimbursement of defense costs. Liberty initially agreed to defend subject to reservations which included its right to withdraw from the defense and to seek reimbursement of defense expenses should it be determined later that there was no coverage.

The second amended complaint prompted Liberty to assert that there was no coverage and withdrew from the defense. It subsequently filed a declaratory judgment action. As to the duty to defend, there was no coverage because no bodily injury or property damage, as defined, occurred during the policy periods. Nor was any personal and advertising injury caused by an offense during the policy periods. Any trade dress infringement occurred post-merger and post policy periods, and this was clear from the complaint. There was no duty to defend or indemnify.

The right to recoup defense expenses was also upheld given Liberty’s endorsement that it was entitled to reimbursement if it was determined that there was no duty to defend and subject to the parameters of that endorsement.

The take-away is that perhaps it is best in any state, but certainly in Pennsylvania and Illinois, to include an endorsement in the policy reserving the right to reimbursement as opposed to a unilateral reservation of rights contained in a letter.

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