Waltzing with Chimeras: The Uneasy Dance between Insureds, the Insurers and Assigned Defense Counsel

The chimera was a formable and confusing beast. As described by Homer, it was a composite creature, with the body and head of a lion, a second head of a goat, and the tail of a serpent. It was considered dangerous because it was unpredictable—one never knew whether its lion, goat or serpent side would predominate in a fight. In a battle with this mythological animal, a hero had to be intelligent enough to understand all sides of the beast in order to overcome the dangers it presented.

I often discuss chimeras when I speak to clients who have been sued. When someone first becomes a defendant in civil litigation, they worry. Some clients become concerned about who will pay for the lawyers that will defend the case; after all, this is a cost that can run into the tens of thousands (and sometimes the hundreds of thousands) of dollars. Some clients become apprehensive about how they will be defended in the suit; they become uneasy because they will be defended by a lawyer they do not know that has been hired by their insurance company. Others become nervous over who will make the strategic decision relating to the defense of the case such as the decision to settle or to try the case. All are anxious about their own personal exposure, particularly when there are issues about the extent and amount of coverage. Most ask me what they should expect now that litigation has been filed against them.

I tell them that they can expect to learn how to waltz with a chimera. After getting curious looks, I explain to them the composite nature of a chimera and how it is a beast that can act like a lion at times, a goat at others and a serpent still at other times. I tell them that when litigation is filed, the insured, the insurance company and assigned defense counsel begin a lengthy dance. In this dance, sometimes the interests of the insured predominate, sometimes the concerns of the insurer control, and sometimes the assigned defense counsel ends up taking the lead. When there is litigation and liability insurance provides coverage, the insured ends up dancing with a chimera.

In order to successfully survive this remarkable waltz, the insured needs to understand why they must dance the beastly dance, the roles of the various dance partners, the steps of the dance, and how the waltz typically ends. The purpose of this article, then, is to provide an insured with needed information so that they will not be destroyed by this chimera. With such understanding, an insured can survive the waltz with the complicated beast.