Strategies, Challenges, and Answers

The Duty To Defend Continues Through The Entire Litigation

Once the duty to defend arises, the insurer’s duty continues throughout the entire litigation.  United Nat’l Ins. Co. v. Frontier Ins. Co., 120 Nev. 678, 687, 99 P.3d 1153, 1158 (Nev. 2004).  The duty to defend continues until final resolution of the claim.  Allstate Ins. Co. v. Miller, 125 Nev. 300, 309, 212 P.3d 318, 325 (2009).  An insurance company may not terminate its duty to defend by depositing the insurance proceeds with the court when the policy terms are ambiguous as to whether the policy specifically permits such an action.  Benchmark Ins. Co. v. Sparks, 127 Nev. Adv. Op. 33, 254 P.3d 617, 623 (2011).

As to the duty to appeal, Nevada would likely follow California requiring a duty to appeal only in certain circumstances.  See Jenkins v. Ins. Co. of N. America, 220 Cal. App. 3d 1481, 1489, 272 Cal. Rptr. 7 (App. 1990) (holding that “a duty to defend may include the duty to appeal where reasonable grounds for an appeal exist”). 

The statute of limitations on a claim against an insurer for breach of its duty to defend commences when a final judgment in the underlying litigation against the insured is entered.  Home Sav. Ass’n v. Aetna Cas. & Sur. Co., 109 Nev. 558, 565, 854 P.2d 851, 855 (1993) (“[T]he limitation period for an action under a[n] . . . insurance policy for failure to defend accrues when the insurer refuses the insured’s tender of defense, but is tolled until the underlying action is terminated by final judgment”) (citing Lambert v. Commonwealth Land Title Ins., 53 Cal. 3d 1072, 1080, 811 P.2d 737, 741-42 (1991)).

If you have questions about the duty to defend in Nevada, please contact Mike Mills at Bauman Loewe Witt & Maxwell either by phone at 702-240-6060 or by email at

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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