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The editors here at the Insurance Coverage Law Center have capitalized on our relationship with several insurance industry thought leaders, including some members of our Editorial Advisory Board, and posed questions asking them to reflect on the important insurance litigation and court decision trends, including business interruption, that they noticed throughout 2021. Below are some of their answers.

Eric Stern, Partner at Kaufman Dolowich Voluck, LLP, and member of the ICLC Editorial Advisory Board: In addition to the COVID-Business Interruption cases, which are still being decided across the nation, there have been other developments in insurance coverage litigation in 2021.  Early in 2021, coverage litigation re-focused attention on the question of whether an insurance company can recoup defense costs paid on behalf of an insured when it is subsequently determined that there was no duty to defend.  On March 11, 2021, the Nevada Supreme Court, in a 4-3 decision, held in Nautilus Insurance Company v. Access Medical, LLC, 2021 WL 936076 (Nev. 2021) that an insurance company is entitled to reimbursement of defense costs where a determination is ultimately made that the insurer did not owe a duty to defend, and the insurer expressly reserved its right to seek recoupment falling in line with other jurisdictions that also recognize an insurer’s right to recoup defense costs where the insurer has specifically reserved such rights, including: California, Connecticut, Massachusetts and Minnesota.

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