When practicing in the courts of southwestern Ohio, it is important to remember that the doctrines of waiver and estoppel will usually not be applied to expand an auto or malpractice policy’s coverage. Most courts will hold that an insurer will not be able to avoid liability under circumstances in which it voluntarily relinquishes a known right. This applies equally if there has been inducement of another into changing a party’s position. Determine if there has been reliance on the insurer’s conduct, when the insured has been prejudiced by that very reliance.
If an insurer is defending its insured, without reserving its rights until shortly before trial, the court may find that the insurer waived their reservation of rights. Often what will follow is a court declaration that they should be estopped from denying coverage. In depositions, diligently clarify the time line – and codify it in an attractive manner before approaching any judge from Cincinnati or the surrounding counties.
Discovery in southwestern Ohio can lead you to the information that the insured made false statements in the insurance application. This most often is true as to the past claims that have been filed against them, especially in professional malpractice claims. A “breached warranty” will almost certainly result in you have a defendant who must be sued directly, and without benefit of coverage. The courts in Hamilton County are not reluctant to find policies void ab initio. This truth can be underscored if the misrepresentation was material, leaving the policy null and without effect. Then it’s time to make a hard decision as to whether your action should proceed, after completion of a sophisticated asset check.