Policyholders can raise estoppel and waiver in any type of insurance claim. While related and similar, the defenses differ in the prima facie elements, burden of proof, and impact on coverage.

The estoppel and waiver defenses don’t only arise in claims that the insurer breached a duty to defend or acted in bad faith in refusing coverage. They can also arise if the insurer undertakes the insured’s defense without a reservation of rights, when it or its agents make verbal assertions about coverage, or if the insurer delays payment or resolution of the claim, among other conduct or inaction. Among the states, case law conflicts as to whether either doctrine can be applied to extend or create coverage.

Listen as our panel of experienced insurance practitioners provides their insight and analysis of this area of the law, and explains the difference between these two doctrines and what steps both the insurer and insured can take to avoid changing or jeopardizing coverage.

Outline:

1. Estoppel and waiver in general
   1. Estoppel: elements and burden of proof
   2. Waiver: elements and burden of proof
   3. Prejudice to the insured
2. What acts by the insurer constitute estoppel and waiver
3. Effect of estoppel and waiver and creation of coverage
4. Duties imposed on the insured and the doctrine of reasonable expectations: states that have and have not adopted

Benefits:

The panel will review these and other key issues:

• Acts by the insurer that can support a claim of estoppel and/or waiver
• Effect of estoppel and waiver on a claim for coverage
• Whether and when coverage can be created under the doctrines of estoppel and waiver

Duties imposed on an insured and the applicability of the doctrine of reasonable expectations.