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Vol. 11 - Issue 2

February 28, 2022


You Do Not Have The Right To Remain Silent


No. v. Link, No. 2020AP1244 (Ct. App. Wis. Feb. 1, 2022) addresses the once-in-a-while seen issue of whether an insured can excuse its refusal to cooperate in a coverage investigation by asserting its Fifth Amendment right against self-incrimination.  This usually arises when the insured’s claim, based on its civil liability, is also the subject of criminal or possible criminal proceedings. Here, Jay Link sought liability coverage for a claim that he had posted sexually inappropriate photographs on Facebook.  In subsequent coverage litigation, the insurer served discovery requests on Link that he refused to respond to, instead invoking his Fifth Amendment right against self-incrimination. 

The Wisconsin Court of Appeals affirmed the trial court’s decision that Link forfeited coverage on account of his failure to cooperate.  In essence, the court held that constitutional immunity has no application to a private examination arising out of a contractual relationship.  “[T]he threat or possibility of parallel criminal charges,” the court concluded, “did not relieve Link of his contractual duties under the policy.”

The court rejected Link’s argument that he was in a “Catch-22”: “Link argues, any admission of fault in the coverage dispute would have harmed his defense in the underlying lawsuit and may have represented a breach of other policy provisions requiring his cooperation with merits/liability counsel. This argument ignores the fact that Link himself demanded defense and indemnification under his policy. Having invoked the policy, Link was required to abide by its terms, including that he cooperate with coverage counsel and truthfully represent all material facts in the coverage dispute. Link does not explain why fulfilling these duties in the coverage cross-claim would have interfered with his defense on the merits or breached his duty of cooperation with respect to merits/liability counsel. And, as Midwest notes, if Link believed that fulfilling these duties ultimately would have harmed his defense, he could have foregone a defense paid for by his insurer.”




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