Comment by Melissa Claire Scioneaux
The interests of the insurance policyholder and the insurance company diverge when the insurance company denies coverage or reserves its right to later deny coverage. While the policyholder will wish to establish coverage, the insurance company will wish to deny it. Recent Louisiana cases have followed the lead of other states in holding that an insurance policyholder may select independent counsel in these conflict situations. This Comment examines the jurisprudence of Louisiana and other states regarding this independent counsel issue and anticipates potential problems that may arise. These problems include the difficulty in determining whether a conflict of interest entitling the policyholder to select independent counsel exists and the policyholder's selection of expensive or incompetent independent counsel. This Comment also discusses the other states' approaches to these issues and proposes a bright-line statute that would allow the policyholder to select independent counsel in a reservation-of-rights situation, requires the independent counsel to have a minimum number of years of experience, and sets a range of rates between those typically paid by the insurance company and those charged by the independent counsel. This statute would clarify how insurance companies, policyholders, and attorneys should behave in a reservation-of-rights situation and may help prevent further litigation regarding the right to select independent counsel.
About the Author
Melissa Claire Scioneaux. J.D. candidate 2007, Tulane University School of Law; B.A. 2004, Louisiana State University.
Citation
81 Tul. L. Rev. 537 (2006)