CACI No. 2321. Affirmative Defense - Insured’s Breach of Duty to Cooperate in Defense

Judicial Council of California Civil Jury Instructions (2023 edition)

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2321.Affirmative Defense - Insured’s Breach of Duty to Cooperate
in Defense
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because [name of plaintiff] failed
to cooperate in [his/her/nonbinary pronoun/its] defense. To succeed, [name
of defendant] must prove all of the following:
1. That [name of plaintiff] failed to cooperate in the defense of the
lawsuit against [him/her/nonbinary pronoun/it];
2. That [name of defendant] used reasonable efforts to obtain [name
of plaintiff]’s cooperation; and
3. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to cooperate in [his/her/nonbinary pronoun/its] defense.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, if [name of plaintiff] had cooperated, [name of defendant]
would have [taken steps that would have substantially reduced or
eliminated [name of plaintiff]’s liability] [or] [settled for a substantially
smaller amount].
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
This instruction is intended for use by an insurer as a defense to a breach of
contract action based on a third party liability policy. This instruction also may be
modified for use as a defense to a judgment creditors action to recover on a
liability policy.
Depending on the facts of the case, the second element of this instruction may not
always be necessary.
Sources and Authority
“The right of an injured party to sue an insurer on the policy after obtaining
judgment against the insured is established by statute. An insurer may assert
defenses based upon a breach by the insured of a condition of the policy such as
a cooperation clause, but the breach cannot be a valid defense unless the insurer
was substantially prejudiced thereby. . . . [¶] The burden of proving that a
breach of a cooperation clause resulted in prejudice is on the insurer.” (Campbell
v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 305-306 [32 Cal.Rptr. 827, 384
P.2d 155], internal citations omitted.)
“[W]e apprehend that Campbell stands for these propositions: (1) that breach by
an insured of a cooperation . . . clause may not be asserted by an insurer unless
the insurer was substantially prejudiced thereby; (2) that prejudice is not
presumed as a matter of law from such breach; (3) that the burden of proving
prejudicial breach is on the insurer; and (4) that, although the issue of prejudice
is ordinarily one of fact, it may be established as a matter of law by the facts
proved.” (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134, 141
[85 Cal.Rptr. 693].)
‘[C]ooperation clauses serve an important purpose. “[A] condition of a policy
requiring the cooperation and assistance of the assured in opposing a claim or an
action lodged against him by an injured person is material to the risk and of the
utmost importance in a practical sense. Without such cooperation and assistance
the insurer is severely handicapped and may in some instances be absolutely
precluded from advancing any defense.” . . . “[S]uch provisions ‘enable the
[insurer] to possess itself of all knowledge, and all information as to other
sources and means of knowledge, in regard to facts, material to [its] rights, to
enable [it] to decide upon [its] obligations, and to protect [itself] against false
claims.’ . . . Where an insured violates a cooperation clause, the insurer’s
performance is excused if its ability to provide a defense has been substantially
prejudiced.’ (Belz v. Clarendon America Ins. Co. (2007) 158 Cal.App.4th 615,
626 [69 Cal.Rptr.3d 864].)
“[A]n insurer, in order to establish it was prejudiced by the failure of the insured
to cooperate in his defense, must establish at the very least that if the
cooperation clause had not been breached there was a substantial likelihood the
trier of fact would have found in the insured’s favor.” (Billington v.
Interinsurance Exchange of Southern California (1969) 71 Cal.2d 728, 737 [79
Cal.Rptr. 326, 456 P.2d 982].)
“[I]f the trial court finds . . . that the insurer failed to diligently seek its
insured’s presence a finding that he breached the cooperation clause would not
be justified.” (Billington, supra, 71 Cal.2d at p. 744.)
“[P]rejudice is not shown simply by displaying end results; the probability that
such results could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch.15-I, Trial,
¶¶ 15:917-15:919 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Insured’s Role in Defense, §§ 11.2-11.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.64[1]-[11] (Matthew Bender)

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