Download this Paper Open PDF in Browser

The Forfeiture of Coverage Defenses Rule: An Economic Analysis

21 Pages Posted: 2 Aug 2017 Last revised: 8 Aug 2017

Tom Baker

University of Pennsylvania Law School

Ezra Friedman

Northwestern University - Pritzker School of Law

Kyle D. Logue

University of Michigan Law School

Date Written: July 25, 2017

Abstract

In liability insurance, the duty to defend is broader than the duty to cover. Thus it is possible that an insurer that has a duty to defend a suit may not have the duty to cover the policyholder's liabilities in the suit. However, if the penalty for a breach of the duty to defend is limited to actual legal costs spent by the defendant, the insurer may have an incentive to refuse to defend, even when the duty to defend is clear. This occurs because the insurer will not internalize the consequences of an inadequate defense when it ultimately can avoid covering the claim. If the penalty for a breach of the duty to defend also includes a forfeiture of the right to contest coverage of the claim, the insurer will never refuse to defend when the duty to defend is clear, but such a penalty could induce an insurer to defend even when it has a good legal argument against the duty to defend. We argue that tying a forfeiture of the right to assert any defense of coverage to an unreasonable refusal to defend can give an insurer incentives to internalize the cost of an inadequate defense while allowing the insurer to make reasonable legal arguments challenging a duty to defend.

Keywords: Insurance, Liability Insurance, Restatement of the Law: Liability Insurance, Moral Hazard, Duty to Defend, Forfeiture of Coverage Defenses

JEL Classification: G22, K10,K13, K41

Suggested Citation

Baker, Tom and Friedman, Ezra and Logue, Kyle D., The Forfeiture of Coverage Defenses Rule: An Economic Analysis (July 25, 2017). Northwestern Law & Econ Research Paper No. 17-10; U of Penn, Inst for Law & Econ Research Paper No. 17-32; U of Michigan Law & Econ Research Paper No. 17-013. Available at SSRN: https://ssrn.com/abstract=2919372

Tom Baker

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2185 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/thbaker/

Ezra Friedman (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Kyle Logue

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734.936.2207 (Phone)

HOME PAGE: http://kylelogue.net

Paper statistics

Downloads
37
Abstract Views
161