Defense costs “Outside” the Limit of Insurance is almost taken for granted and it’s becoming a more common feature for policies that have historically been purely “Inside Limits” policies. Even with policies such as Directors & Officer’s Liability you’re seeing additional limits and – depending on the type of policy (Non-profit, etc.) – full “Outside Limits” Defense coverage.
Defense is usually paid as “supplemental costs” in a policy, and an insuring agreement will usually say something like, “We will pay all costs we incur, including legal and defense fees.” It is important to highlight, then, that it isn’t *technically* “Defense Costs” that are “outside the limits” on these policies, rather it’s the non-indemnity costs incurred. This is an important distinction when a policyholder has agreed to indemnify someone via contract. The short version of why is because contractual costs are “indemnity” loses to the policy holder, even if those costs are earmarked in the contract for defense.
The reason for this is because indemnity, even of a third party’s defense costs, are considered “damages” (or similar) by the policy. In fact the CGL expressly says this. In the Contractual Liability exclusion of the CG 00 01 10 01, to which there are many exceptions, we find this language:
Solely for the purposes of liability assumed in an “insured contract”, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages…
Note there are some provisions you can find under “Supplementary Payments” that allow defense costs “outside” for the indemnitee when various conditions are met, and these typically require the indemnitee to subjugate themselves to handing over all defense options to the insuring carrier – something many won’t wish to do.
I’ve seen contracts that specifically require one party to indemnify another and specifically states that any insurance defense should be “outside” the limits. On the retail side this problem is often met by adding an Additional Insured provision to the policy. But this isn’t a perfect solution either as many Additional Insured provisions are now, themselves, stating that defense costs are specifically “inside” the Limit of Insurance.
This type of language has not yet made it into ISO forms, as far as I’m aware, but we have seen ISO continue to restrict Additional Insured endorsements. One major recent change being that (e.g.) on the CG 20 10 the coverage afforded to an Additional Insured is specifically limited to that which is required by the contract. This alone could be sufficient for a carrier to say that “outside” defense coverage shouldn’t be assumed as “required by the contract”, hence the AI does not enjoy such.
Even if not, I imagine we’ll see some of the “Standard” Additional Insured endorsements specify “inside” defense coverage soon enough, though “soon enough” is relative in the insurance industry when changing a comma on an ISO form can take a decade. For now, take a close look at your AI endorsements and any “automatic” provisions to see what is offered; this limitation could already be in place – this is especially the case for proprietary/non-standard/excess lines forms.