Cumis Counsel

Cumis counsel refers to independent counsel selected by an insured but paid for by an insurer as required by Civil Code section 2860 and San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358. In the context of insurance coverage, an insurer is entitled to control the defense of its insured pursuant to the terms of the insurance policy. This means the insurance company can both appoint counsel to defend your company upon a covered lawsuit, while making the decisions relating to the litigation on your company’s behalf.
The relationship between the insured, insurer, and insurer-retained defense counsel is referred to as the “tripartite relationship.” Because defense counsel has duties owing to both the insurance company and the insured, a conflict of interest can arise when the insurance company has reserved rights to later deny coverage or seek reimbursement for claims not covered under the policy. In these cases, a company may wish to retain Cumis counsel (also called independent counsel) to monitor the activities of the insurance company’s appointed defense counsel.

Why Retain Cumis Counsel?

Making the decision to retain independent counsel in conjunction with appointed defense counsel involves the weighing of risks. Determining if a potential conflict exists to warrant the independent costs of counsel is also dependent on the facts and allegations of the specific case alleged against the business.  Cumis counsel ensures that no steps are taken in the litigation to either hurt the uncovered claims of the insured or jeopardize coverage. In some situations, where a potential conflict of interest arises, an insurer is contractually obligated to pay for independent counsel as codified under California Civil Code section 2860 which provides as follows:

§ 2860. Conflict of interest; duty to provide independent counsel; waiver; qualifications of independent counsel; fees; disclosure of information

(a) If the provisions of a policy of insurance impose a duty to defend upon an insurer and a conflict of interest arises which creates a duty on the part of the insurer to provide independent counsel to the insured, the insurer shall provide independent counsel to represent the insured unless, at the time the insured is informed that a possible conflict may arise or does exist, the insured expressly waives, in writing, the right to independent counsel. An insurance contract may contain a provision which sets forth the method of selecting that counsel consistent with this section.

(b) For purposes of this section, a conflict of interest does not exist as to allegations or facts in the litigation for which the insurer denies coverage; however, when an insurer reserves its rights on a given issue and the outcome of that coverage issue can be controlled by counsel first retained by the insurer for the defense of the claim, a conflict of interest may exist. No conflict of interest shall be deemed to exist as to allegations of punitive damages or be deemed to exist solely because an insured is sued for an amount in excess of the insurance policy limits.

(c) When the insured has selected independent counsel to represent him or her, the insurer may exercise its right to require that the counsel selected by the insured possess certain minimum qualifications which may include that the selected counsel have (1) at least five years of civil litigation practice which includes substantial defense experience in the subject at issue in the litigation, and (2) errors and omissions coverage. The insurer's obligation to pay fees to the independent counsel selected by the insured is limited to the rates which are actually paid by the insurer to attorneys retained by it in the ordinary course of business in the defense of similar actions in the community where the claim arose or is being defended. This subdivision does not invalidate other different or additional policy provisions pertaining to attorney's fees or providing for methods of settlement of disputes concerning those fees. Any dispute concerning attorney's fees not resolved by these methods shall be resolved by final and binding arbitration by a single neutral arbitrator selected by the parties to the dispute.

(d) When independent counsel has been selected by the insured, it shall be the duty of that counsel and the insured to disclose to the insurer all information concerning the action except privileged materials relevant to coverage disputes, and timely to inform and consult with the insurer on all matters relating to the action. Any claim of privilege asserted is subject to in camera review in the appropriate law and motion department of the superior court. Any information disclosed by the insured or by independent counsel is not a waiver of the privilege as to any other party.

(e) The insured may waive its right to select independent counsel by signing the following statement: “I have been advised and informed of my right to select independent counsel to represent me in this lawsuit. I have considered this matter fully and freely waive my right to select independent counsel at this time. I authorize my insurer to select a defense attorney to represent me in this lawsuit.”

(f) Where the insured selects independent counsel pursuant to the provisions of this section, both the counsel provided by the insurer and independent counsel selected by the insured shall be allowed to participate in all aspects of the litigation. Counsel shall cooperate fully in the exchange of information that is consistent with each counsel's ethical and legal obligation to the insured. Nothing in this section shall relieve the insured of his or her duty to cooperate with the insurer under the terms of the insurance contract.

West's Ann.Cal.Civ.Code § 2860