Q I have civil claims brought against me involving a car accident. Part of the case accuses me of carelessness and other intentional wrongdoing. The insurance company has sent me a “reservation of rights” letter, and indicated that I am entitled to my own lawyer. Can you explain this process?
A Your insurance policy covers liability for certain acts, such as careless behavior. If you acted intentionally or wantonly, however, your conduct may well be excluded from coverage. If someone is driving under the influence and is at fault for an accident, for example, the insurance company may defend him or her in a civil suit, but only with regard to claims that are covered, not the DUI. The insurance company “reserves its rights,” which can include circumstances in which the insurer may stop defending you (depending upon what it further learns), or will not pay some or all of your liability. When this arises, the insurance company has a conflict of interest with you. At that point, you may retain a lawyer yourself so there are two lawyers — your own and the lawyer hired by the insurer. Your lawyer can seek to work out payment of his or her fees, to at least to some degree, by the insurer. This is often referred to as “Cumis counsel” (named after a California case).
Because there are unique aspects to this kind of situation, it is best to consult with your own counsel. The lawyer hired by the insurance company may be able to provide some guidance, but keep in mind that his or her payment is coming from the insurance company, which has an impact on whatever advice he or she can provide you.
Q Is the insurance company allowed to settle a case even if I don’t want it to?
A Certain insurance policies, such as those providing coverage for professional liability, contain a provision requiring the policyholder’s written consent to a settlement. This provision is generally absent from liability policies. Bottom line: Your insurer can settle the claim, even if you do not want it to, but the insurer has to act in good faith. The insurance company is not to leave you open to personal exposure.
Conversely, if you want to settle but the carrier does not, the carrier is not required to resolve the matter. One option then is that you could take on the defense yourself.
Ron Sokol has been a practicing attorney for more than 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
