Attorneys' Fees As Covered Costs, Damages, Or Loss
INSURANCE LAW Wording and Interpretation Attorneys’ Fees as Covered Costs, Damages, or Loss By Thomas R. Newman To help preclude obligations to defend or indemnify insureds for suits seeking awards of attorneys’ fees, insurers and their counsel need to understand the effect of policy language and courts’ interpretation of it. ■ Thomas R. Newman is of counsel to Duane Morris LLP in New York City. He practices in the areas of insurance and reinsur- ance law, including coverage, claims handling, contract drafting and arbitration, and litigation. He has served as lead counsel in more than 60 reinsurance arbitrations and also has handled hundreds of appeals in both state and federal courts. He is a mem- ber of DRI, the American Academy of Appellate Lawyers, the American College of Coverage and Extracontractual Counsel, and the Federation of Defense and Corporate Counsel, and a life member of the American Law Institute. 8 ■ For The Defense ■ March 2014 Attorneys’ Fees as Covered Costs, Damages, or Loss ‘bodily injury’, ‘property damage’ or ‘per- In the United States, under the so-called “American rule,” sonal and advertising injury’ to which this insurance applies are alleged.” 300 P.3d the prevailing party in a litigation is ordinarily not entitled at 34. The majority in EMC, quoting from that to reimbursement for its reasonable attorneys’ fees and court’s earlier decision in Mutual of Enum- claw v. Harvey, 115 Idaho 1009, 1013, 772 expenses from the loser in the absence of a statutory or P.2d 216, 220 (1989) (“Harvey”), stated: “The contractual provision allowing such an policy.
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