I recently had the opportunity to speak on a panel titled “Tug Of (Coverage) Wars: ​Who Controls The Defense In Multi-Suit Claims?” at the 2025 American Bar Association Insurance Coverage Litigation Committee (ICLC) conference. The panel featured Seth Thomas of Bose McKinney & Evans LLP advocating for insureds and Kelli Jo Amador of Dinsmore & Shohl LLP giving the insurer perspective, with Alexis Dyschkant of Covington & Burling LLP moderating. We explored the concept of when an insured is entitled to the right to independent counsel (separate from insurer-appointed panel counsel), particularly when faced with multiple personal injury claims that individually would not breach excess policies but collectively might.

Insurers who are paying for the panel counsel they appoint are not interested in footing the bill for another independent counsel selected by the insured. But, naturally, insureds want the best defense and a say in who will provide it– hence the tug of war metaphor. Like most issues in insurance law, whether an insured is entitled to independent counsel depends on the governing law in the jurisdiction of the claims. Generally, courts have recognized this right when the interests of insureds and insurers have diverged. This can occur when the underlying lawsuit involves both covered and uncovered claims or the risk of an excess of limits verdict is substantial.

The calculus isn’t all that straightforward, however. Some jurisdictions explicitly codify or have precedents stating that the mere presence of an excess of limits demand doesn’t in and of itself trigger the right to independent counsel. Even if the risk of a demand in excess of limits allowed for independent counsel, making that determination can be difficult. How do you take into account the more abstract costs to the insured of taking a case to trial: loss of goodwill from the community or its customers, increasing the insured’s profile for the plaintiff’s bar, or risking public airing of unflattering documents and facts, to name a few. Nevertheless, both sides of our panel agreed that an early demand for independent counsel is best practice.

My participation in the panel focused on the role that consultants can play in helping to determine whether and when the risk of excess liability becomes significant enough to warrant independent counsel. Consultants can assess (and reassess) potential liabilities early and often as facts develop. They can also help the insured understand if any available limits have been impaired by previous payments, if other lines of coverage or other entities’ policies may respond, and how a settlement or verdict now might impact coverage for future, related claims. As more information emerges from the claims process, consultants can help evaluate whether the interests of insured and insurer have diverged because of the risk of excess liability.

Specialized consultants can also conduct mock juries and informal jury assessments in surrounding jurisdictions. These can help give the insured and insurer a better sense for the potential outcomes and risks of taking a case to verdict and whether independent counsel is warranted.

Our panel closed by examining a hypothetical with increasingly complex facts involving more claimants, more parties, and new allegations in amended complaints. Given the state of personal injury litigation, it is clear insureds, and their insurers, will continue to wrestle with the right of an insured to seek independent counsel.