Strategies, Challenges, and Answers

Does An Insurer Have A Duty To Defend When Other Insurers Have Already Taken Up The Defense?

The Nevada Supreme Court has not decided whether an insurance company is obliged to defend when other insurers, who also owe a duty to defend the same insured, have already taken up the defense..  The cases of Commercial Standard Ins. Co. v. Tab Constr., Inc., 94 Nev. 536, 539, 583 P.2d 449, 451 (1978) and Zurich Am. Ins. Co., 720 F. Supp. 2d 1223, 1234 n. 11 (2010) remind us that where Nevada law is silent, Nevada often looks to California law for direction.

California law provides that even where another insurer has already assumed the defense, “a second insurer’s failure to honor its separate and independent contractual obligation to defend” will not be excused if it does not participate in the defense.  See Emerald Bay Cmty. Ass’n v. Golden Eagle Ins. Corp., 130 Cal. App. 4th 1078, 1088, 31 Cal. Rptr. 3d 43, 52 (App. 2005).  If the insured were to bring a breach of contract action against the second insurer, and assuming the first insurance company is providing an adequate defense, the principal question will be whether the insured suffered any damage as a result of second’s refusal to defend.  See id. at 1089-90, 31 Cal. Rptr. 43, 52-53; see also Ringler Assocs. Inc. v. Maryland Cas. Co., 80 Cal. App. 4th 1165, 1187, 96 Cal. Rptr. 136  (App. 2000); Horace Mann Ins. Co. v. Barbara B., 61 Cal. App. 4th 158, 164, 71 Cal. Rptr. 2d 350, 354 (App. 1998).

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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