Duty to Defend: Nautilus Insurance Company v Access Medical LLC

Earlier this summer, the Ninth Circuit certified the following question to the Nevada Supreme Court: “Is an insurer entitled to reimbursement of costs already expended in defense of its insureds where a determination has been made that the insurer owed no duty to defend and the insurer expressly reserved its right to seek reimbursement in writing after defense has been tendered but where the insurance policy contains no reservation of rights?”

The court had before it an insurer’s claim for reimbursement of defense costs, following a judicial determination that the insurer, which undertook its insured’s defense, had no such duty to defend.

The district court held that, under Nevada law, the insurer was not entitled to reimbursement.  However, the Ninth Circuit  concluded that there was no Nevada law on the issue and made the decision to seek guidance from the Nevada Supreme Court.