PA Appellate Court Clarifies Insured’s Right to Own Counsel.

In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client.

Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel.

If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.