The court in Signal rejected that approach and instead ruled that "the NVP provision does not apply to payment of Cumis counsel fees.
The Signal court agreed and confirmed that the test is what is "reasonable" in the particular lawsuit: "Having accepted that multiple attorneys may serve as Cumis counsel, there does not appear to be any principled grounds for requiring as a matter of law that all of those attorneys need to be employed at the same law firm.
As example, damages are claimed in an excess of the policy and punitive damages do not give rise to Cumis counsel
13) Although independent counsel are often described as Cumis counsel
, the concept of independent counsel long preceded the decision in San Diego Navy Federal Credit Union v.
45) This ideology, of the insurer being required to provide Cumis counsel in the event that the insured does not consent to the insurer-appointed counsel, is growing in popularity in jurisdictions across the country.
Mindful of this inherent conflict of interest, many courts require the insurer to pay for independent Cumis counsel, selected by the insured, when electing to defend subject to a reservation of rights.
Ferraro, Conflicts of Interest: Hawaii Supreme Court Rejects Cumis Counsel Doctrine, Mound, Cotton, Wollan & Greengrass Newlsetter (Vol.
The independent counsel that must be provided by the insurer at the insured's request is called Cumis counsel, after the California case from which the rule originated.
13 (challenge to fees of Cumis counsel
upheld in case where conflict of interest divests insurer of right to control defense); Caiafa Prof'l Law Corp.
Because of the reservation of rights and conflict of interests between insured and insurer, Transamerica agreed to pay for independent Cumis counsel
Truck Insurance Exchange,(11) the court refused to find that an insurer breached its duty to defend or that a policyholder was necessarily entitled to Cumis counsel
under Section 2860 of the California Civil Code merely because the insurer asserted its rights to recover defense costs that might be attributable to non-covered claims for economic loss.