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Attorneys Liability Protection Society, Inc. v. Ingaldson Fitzgerald, P.C.

United States Court of Appeals, Ninth Circuit

September 10, 2014

ATTORNEYS LIABILITY PROTECTION SOCIETY, INC., a Risk Retention Group, Plaintiff-Appellant,
v.
INGALDSON FITZGERALD, P.C., FKA Ingaldson, Maassen & Fitzgerald, P.C., Defendant-Appellee. ATTORNEYS LIABILITY PROTECTION SOCIETY, INC., a Risk Retention Group, Plaintiff-Appellee,
v.
INGALDSON FITZGERALD, P.C., FKA Ingaldson, Maassen & Fitzgerald, P.C., Defendant-Appellant

D.C. No. 3:11-CV-00187-SLG. D.C. No. 3:11-CV-00187-SLG.

Certification to Alaska Supreme Court

The panel certified two questions to the Alaska Supreme Court.

1. Does Alaska law prohibit enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by independent counsel, (2) the insured accepted the defense subject to the reservation of rights, and (3) the claims are later determined to be excluded from coverage under the policy?
2. If the answer to Question 1 is " Yes," does Alaska law prohibit enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by independent counsel, (2) the insured accepted the defense subject to the reservation of rights, and (3) it is later determined that the duty to defend never arose under the policy because there was no possibility of coverage?

Kevin Hartzell and Angela Probasco, Kutak Rock, Omaha, NE, for petitioner/cross-respondent.

Jim M. Boardman and William H. Ingaldson, Ingaldson Fitzgerald, P.C., Anchorage, AK, for respondent/cross-petitioner.

Rick A. Cigel and Michael B. Kadish, The Cigel Law Group, P.C., Los Angeles, CA, for amicus curiae National Risk Retention Association.

Before: Jerome Farris, Dorothy W. Nelson, and Jacqueline H. Nguyen, Circuit Judges.

OPINION

Jacqueline H. Nguyen, Presiding Judge

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF ALASKA

Page 1181

ORDER

Pursuant to Alaska Rule of Appellate Procedure 407(a), we respectfully ask the Alaska Supreme Court to answer the following certified ...


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