Two recently decided cases illustrate the general rule that it is exceedingly difficult to prove an insurer's waiver of its defenses to insurance coverage. E.g., Legend's Creek Homeowners Ass'n v. Travelers Indem. Co. of Am., 33 F.4th 932, 935, 937 (7th Cir. 2022) (Indiana substantive law; no waiver where there is no unquestioned duty to speak as to assertion of limitations period in an insurance policy, and no implicit waiver in this case, either); Grill House, LLC v. Berkshire Hathaway Homestate Ins. Co., No. 20-cv-2108-WJM-KLM, 2022 WL 1487575, at *4 (D. Colo. May 11, 2022) (no waiver of plaintiff's alleged failure to provide prompt notice).
Questions of waiver of, and of estoppel to assert policy and coverage defenses, are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:2 (discussing in particular, context of first-party bad faith claims) (3d Edition West Publishing Company, 2023 Supplements in process).
Please read the disclaimer. This blog article ©2023 Dennis J. Wall. All rights reserved.
Comments