Does the Draft Restatement of the Law of Liability Insurance Wrongly Elevate Proof and Overvalue Legal Uncertainty? Yes, Given the Foreseeable Risk Insurers May More Often Decline the Duty to Defend as a Result

30 Pages Posted: 7 Sep 2016 Last revised: 19 Oct 2016

See all articles by Joseph Lavitt

Joseph Lavitt

University of California, Berkeley - School of Law

Date Written: September 2, 2016

Abstract

Tentative Draft No. 1 of the American Law Institute’s forthcoming Restatement of the Law of Liability Insurance is admirable in many important respects. However, proposed section 13 can be falsified in too many instances to serve as a meaningful statement of black letter law governing an insurer’s duty to defend. This Commentary will consider how proposed section 13 and associated provisions of the proposed Restatement might influence the decision by insurers to defend their insureds, particularly in instances of so-called “legal uncertainty.”

Keywords: Duty to Defend, Liability Insurance, Restatement of the Law of Liability Insurance, Breach of the Duty to Defend, Breach of the Implied Covenant of Good Faith and Fair Dealing, Insurance, Breach of Contract, Hadley v. Baxedale, recoup defense costs, excess liability, legal uncertainty, ambiguity

Suggested Citation

Lavitt, Joseph, Does the Draft Restatement of the Law of Liability Insurance Wrongly Elevate Proof and Overvalue Legal Uncertainty? Yes, Given the Foreseeable Risk Insurers May More Often Decline the Duty to Defend as a Result (September 2, 2016). Rutgers Law Review Commentaries, (2016), Available at SSRN: https://ssrn.com/abstract=2834333

Joseph Lavitt (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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