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The Tilley Rule: Who is the client of the attorney hired by the insurance company to defend the insured?

15 August 2011

In Texas, this question is answered by the case of Employers Casualty Co. v Tilley, 496 SW2d 552 (Tex. 1973). This precedent-setting case avers that it is the insured who is the client of the attorney(s) hired by the insurance company to defend the insured against a personal injury claim. Most often, we think of these types of claims arising out of some type of injury under a homeowner’s policy, but may also occur under a boatowner’s policy or other type. The bottom line of this case law is that the loyalty lies with the insured and not with the insurance company.

It’s a de facto complicated question because it is the insurance company who hires the attorney(s) and with whom the attorney and her staff have the most contact. The majority of the time, the interests of both the insured and the insurer are the same, so there is no problem with a claim or lawsuit being filed against the insured and the insurer hiring a law firm to represent its insured. It is only in cases where there are conflicting interests that issues may arise.

From Tilley, we learn:

Under the policy in question (comprehensive liability) the insurance company’s obligation to defend the insurer provides that the attorney to represent the insured is to be selected, employed and paid by the insurance company. Nevertheless, such attorney becomes the attorney of record and the legal representative of the insured, and as such he owes the insured the same type of unqualified loyalty as if he had been originally employed by the insured. If a conflict arises between the interests of the insurer and the insured, the attorney owes a duty to the insured to immediately advise him of the conflict. These principles were enunciated in Automobile Underwriters’ Insurance Co. v. Long, 63 S.W.2d 356 (Tex.Comm.App. 1933), a case in which the company assumed the defense but later withdrew under a claim of a policy violation (non-co-operation), and retraction by insured of a non-waiver agreement obtained without sufficient explanation of the coverage conflict. The court clearly affirmed the attorney’s duty as follows:

“When counsel were employed by the company they became Long’s [the insured] unqualified attorneys of record, and as such they owed him the duty to conscientiously represent him, and if the point was reached where his interests and those of the company conflicted, he should have been so informed and given the opportunity to protect himself.”

Try Googling your state to see if there is case-setting precedent regarding this issue, or even a statutory requirement. One good place to start when researching questions of law for the lay person is using Google Scholar.

 Here you can look up cases, opinions, journals, and more for free! In the case of Tilley, I could click on the tab labeled “how cited” and receive a list of all the cases citing back to Tilley. Or you can click on “read this case” and read the whole case (opinion) for yourself. Easy peasy.

When you use Google Scholar to research this issue, you can find many cases and law review journals (which are not mandatory precedent but are nonetheless important in analyzing the legalities of the issue). In this way, you are able to fully inform yourself of the legal nuances attached to this particular issue.

For more info:

Texas Department of Insurance

Google Scholar

Please see related article: What is a reservation of rights letter?

Note: I am not an attorney. If you need legal advice, you should consult an attorney licensed to practice law in your state.

Full disclosure: I work as a paralegal in insurance defense.

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Sami K. Hartsfield, ACP is a freelance writer, insurance defense paralegal, and NALA Advanced Certified Paralegal living in downtown Houston. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. A glutton for acquiring new knowldedge–in addition to her national advanced paralegal certification–she has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com

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One Comment
  1. Excellent post. I used to be checking constantly this blog and I am inspired! Very helpful information specially the last section 🙂 I take care of such information much. I used to be looking for this certain info for a very long time. Thank you and best of luck.

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