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In the seminal case of Merchants Indemn. Corp. v. Eggleston, 37, N.J. 114 (1962), the Supreme Court of New Jersey held that a liability insurer can be estopped from denying coverage, when defending an insured under a reservation of rights, if the insurer does not obtain the insured’s consent to the defense. Last month, the Appellate Division, in Northfield Insurance Co. v. Mt. Hawley Insurance Co., No. A–1771–16T4, 2018 WL 1513162 (N.J. Super. Ct. App. Div. Mar. 28, 2018), rejected the assertion that prejudice to the insured is presumed as a matter of law when an insurer provides a courtesy defense under a clear reservation of rights. The court also reversed and remanded for further findings as to whether an injured plaintiff may attempt to invoke estoppel against a defendant’s liability insurer.

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