Prevailing Insured's Right to Recover Attorney's Fees in Insurance Coverage Litigation State Law Survey

Summary

This survey reviews insurance coverage litigation and the prevailing insured's right to recover attorney's fees in an action to secure coverage. The survey covers all 50 U.S. states and the District of Columbia. The principal issues considered by an insurer in evaluating whether to file a declaratory judgment action or defend one filed against it are the likelihood of success and the attorney's fees incurred. States address an insured's right to attorney's fees by statute, common law, or a hybrid approach. Whichever approach applies, the most important factor is the same: whether the prevailing insured's right to recover attorney's fees is automatic or whether the insured must prove that the insurer's conduct was unreasonable or egregious in some way. In almost all cases, an insurer that is unsuccessful in coverage litigation will either be automatically obligated to pay for its insured's attorney's fees or may be litigating post-trial whether such obligation exists.