In an article published by Law360 on October 25, 2023, Kurt Zitzer shares his perspective on a recent Second Circuit decision affirming the lower court’s ruling in favor of a professional liability insurer in a dispute over an attorney’s professional liability insurance policy.

“The appeals court avoided explaining how to parse legal expenses for the same counsel retained by both an insured and non-insured party in a dispute since they found there was no duty to defend,” said Zitzer, “I wish they would have answered the other question, which is a difficult question in the real world for carriers to deal with, but they didn’t have to answer that question because they came to the conclusion [that] there really isn’t any duty to defend here.”

“Courts have not clearly articulated how a carrier should allocate funds under these circumstances, whether by allocating based on the portion of a counsel’s work that can truly be distinguished as benefiting a noninsured alone or by resorting to an even split of defense costs,” Zitzer added.

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