February 25th, 2019
Picking up the tab: who is responsible for the defense under policies with a deductible or self-insured retention?
By, Laura F. Locklair, Esq.
Insurers often rely on deductible and/or self-insured retention (“SIR”) endorsements to shift the burden to pay for a portion of the defense to the insured. However, absent specific policy language, such endorsements do not operate to excuse or delay an insurer’s duty to defend. Moreover, although the terms are often used interchangeably, important distinctions exist between deductibles and SIRs that impact when an insurer is obligated to defend.
“A deductible or self-insured retention states the monetary threshold of the insurer’s obligation to pay liabilities covered by the policy.” Insurance Coverage of Construction Disputes, Deductibles and Self-Insured Retentions (2d ed.). “Deductibles represent the portion of a covered loss that the policyholder may eventually be obligated to reimburse the insurer.” §1:43 Practical Tools for Handling Insurance Cases, Deductibles and Self-Insured Retentions (June 2018 Update). Whereas a deductible represents a portion of a covered loss lying within the terms of the policy for which the policyholder may be obligated to reimburse the insurer, a SIR is an initial portion of a loss that lies outside the policy. Legacy Vulcan Corp. v. Superior Court, 185 Cal.App.4th677, 694 (2010) (“A ‘self-insured retention,’ or ‘retained limit,’ generally refers to the amount of a loss or liability that the insured agrees to bear before coverage can arise under the policy.”). Unlike an SIR, wherein the amount of the retention is not included in and the limits of the policy stack on top of the SIR amount, “[w]ith a deductible, the amount of the deductible is included in the amount of the policy limits.” §4:6 Insurance Coverage of Construction Disputes, Deductibles and Self-Insured Retentions (2d ed.). Because “the insurer has no responsibility to pay claims until [the SIR] is exhausted,” some jurisdictions have indicated that a SIR typically “must be divulged” on a certificate of insurance or declarations page Id.
When a deductible is involved, an insurer owes an immediate obligation to defend claims that are subject to the deductible. §1:43 Practical Tools for Handling Insurance Cases, Deductibles and Self-Insured Retentions (June 2018 Update). Payment of a deductible is not a precondition to the duty to defend, even if the insured may ultimately be required to reimburse the insurer for some portion of the costs of the defense that the insurer was required to provide. See e.g American Safety Cas. Ins. Co. v. City of Waukegan, Ill. 678 F.3d 475, 482 (7th Cir. 2012) (rejecting insurer’s arguments that “an insurer’s duty to defend begins only after the insured’s [defense] expenses exceed the deductible.”); Continental Cas. Co. v. National Union Fire Ins. Co. of Pittsburg, PA, 940 F.Supp.2d 898 (D. Minn. 2013) (“Simply because [the insurer] will ultimately be reimbursed for certain costs it expends in defending [the insured] does not indicate that [the insurer] does not have a duty to defend [the insured].”); Century Indemn. Co. v. Marine Group, LLC, 2012 WL 6016953 at *2 (“[I]n the case of a deductible, the insured must pay a portion of the loss but is not obligated to exhaust the deductible before a defense is provided.”) aff’d on reh’g Century Indemn. Co. v. Marine Group, LLC, 848 F.Supp.2d 1238, 1250 (D. Or. 2012) (“The duty to defend does not depend on the ultimate amount expended in defense of a claim…[to do so] would nullify the policy language that establishes a duty to defend in the first place.”).
Conversely, a SIR may operate to excuse an insurer’s obligation to defend a policy holder until the retention has been satisfied but only if the language is sufficiently “conspicuous, plain and clear.” Legacy Vulcan Corp., 185 Cal.App.4th at 697 (holding that in order for a SIR provision in a policy providing primary liability coverage to relieve the insurer of the duty to provide an immediate “first dollar” defense, the policy must expressly so provide). Specifically, some courts have found that the “conspicuous, plain and clear” language required for a policy with a self-insured retention to exclude an insurer’s otherwise immediate duty to defend must expressly reference the abrogation of the defense obligation. Id. (insurer had duty to defend despite insured’s failure to exhaust retained limit where policy “did not state that the duty to defend was limited by the retained limit in any manner”); see also Axis Surplus Ins. Co. v. Glencoe Ins. Ltd., 204 Cal.App.4th 1214, 139 Cal.Rptr. 578, 583 (2012) (“[T]he policy stated [the insurer] had no duty to investigate or defend any claim until [the insured] satisfied the [self-insured retention]”; State Nat’l Ins. Co. v. Cnty. Of Camden, Civ. No. 08-1528, 2012 WL 6652819, at *1 (D.N.J. Dec. 19, 2012 (self-insured retention endorsement expressly stated that the insured “shall be obligated to provide an adequate defense and investigation of any action for or notice of any actual, potential or alleged damages”).
Despite the difference noted above, often the terms “deductible” and “SIR” are used interchangeably. In acknowledgment of the confusion, courts have recognized “these terms alone are not sufficient to convey to an unsophisticated insured an understanding of what an insurance expert or attorney might believe to be the essence of a self-insured retention” and, as a result, “[a]ny limitation on coverage otherwise available under the policy “must be stated precisely and understandably, in words that are part of the working vocabulary of the average layperson.” Legacy Vulcan Corp., 185 Cal.App.4th at 694.
The Beaufort County Court of Common Pleas in South Carolina recently had an opportunity to consider the differences between a deductible and an SIR and the impact on an insurer’s duty to defend in Centex Homes, a Nevada General Partnership v. Raymond and Denise Gibbo, et al., C.A. No. 2016-CP-07-02287 (Dec. 17, 2018). In that case, the insurer suggested that a “deductible endorsement” on the policy excused its obligation to defend an additional insured in several underlying construction defect actions because the defense fees and costs of the additional insured in those underlying actions did not (and would not, given that the underlying actions had resolved) exceed the deductible amount. While the deductible endorsement specified a deductible amount that was inclusive of damages and supplementary payments and the deductible endorsement also stated:
4. Other Rights and Duties (Ours and Yours)
All other terms of this policy, including those with govern (a) our right and duty to defend any claim, proceeding or suit against you, and (b) your duties if injury occurs, apply irrespective of application of this deductible endorsement.
The trial court determined that “the ‘unambiguous, clear and explicit’ terms of the Deductible Endorsement provide that [the insurer’s] duty to defend’ applies “irrespective of the deductible.” See Gibbo. The South Carolina trial court’s holding was consistent with other courts across the country interpreting the same language in similar endorsements. See e.g., Continental Cas., 940 F.Supp.2d at 922. (determining that “the Deductible Endorsements do not disclaim or alter [the insurer’s] duty to defend” and instead “expressly reaffirm that [the insurer] has a duty to defend.”). Because it determined that the insurer’s duty to defend the additional insured “was not altered or excused” by the deductible endorsement, the Gibbo court concluded that the insurer breached its duty to defend and awarded the additional insured all of the defense fees and costs it incurred in the underlying action as well as the fees and costs it expended in a declaratory judgment seeking to force the insurer to honor its duty to defend.
Even if the named insured is responsible for reimbursing the insurer for the amount of defense fees and costs that fall within the limits of a deductible, courts have concluded that the insurer retains the duty to defend because “the duty to defend is distinct from a mere obligation to pay for defense costs.” Continental Cas., 940 F.Supp.2d at 918 (“Simply because [an insurer] will ultimately be reimbursed for certain costs it expends in defending [an insured] does not indicate that [the insurer] does not have a duty to defend [the insured].”). The duty to defend is more than the mere payment of money, instead it “encompasses hiring attorneys and managing lawsuits,” developing litigation strategy, and evaluating and securing settlements and judicial dispositions. Id. As a result, an insurer’s attempt to transfer its duty to pay for defense fees and costs through a deductible or SIR may not ultimately be successful in transferring or extinguishing its duty to defend.