Bolstering New Jersey's Historically Weak 'Duty to Defend'

Burd v. Sussex Mutual Insurance Company, 56 N.J. 383 (1970) has flown high over New Jersey insurance law for many years, denying policyholders the defense for which they have contracted. Burd curtailed insurance companies’ duty to defend policyholders if the underlying complaint had conflicting causes of action. Cooper Industries v. Employers Insurance of Wausau (N.J. Super. Ct. Aug. 30, 2016) is the first decision sharply to curtail the application of Burd and to find that an insurance company had a present duty to defend a "potentially responsible party" (PRP) letter from the U.S. Environmental Protection Agency. Cooper relied principally on Flomerfelt v. Cardiello, 202 N.J. 432 (2010). Cooper is a path-breaking decision that could ultimately find itself before the New Jersey Supreme Court.