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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 in 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 mmills@blwmlawfirm.com
