b'CASE LAW DEVELOPMENTS|UNITED STATESpolicyholder is ultimately not entitled to coverage,owed no duty to defend and the insurer expressly thereby underscoring the importance of includingreserved its right to seek reimbursement in writing reservation of rights language in insurance policiesafter defense has been tendered but where the and correspondence with the insured during theinsurance policy contains no reservation of rights.claims handling process. The Nevada Supreme Court answered in the In addition to Adir International, LLC v. Starraffirmative, reasoning that if the insurer reserved its Indemnity & Liability Co., insurers won anotherright to reimbursement in writing, and the victory in Nautilus Insurance Co. v. Accesspolicyholder accepted the defense, the insurer was Medical, LLC regarding their right toentitled to reimbursement when it never owed a reimbursement for advanced defense costs when itduty to defend in the first place. Specifically, is ultimately determined that the insurer never owedbecause Nautilus did not have any contractual duty a duty to defend under the policy. In a decision byto defend . . . it could properly condition its the Nevada Supreme Court answering a questionprovision of a defense on a reservation of its rights certified to it by the US Court of Appeals for theand could seek reimbursement of advanced defense Ninth Circuit, the Nevada Supreme Court held thatcosts based on principles of unjust enrichment and an insurer is entitled to reimbursement of advancedrestitution, which generally allow for recovery of defense costs under equitable theories of unjustbenefits conferred in excess of the recipients enrichment and restitution even though the policycontractual entitlement.did not expressly provide for reimbursement. With the Nevada Supreme Courts answer in hand, Nautilus Insurance defended Access Medicalthe Ninth Circuit held that Nautilus had provided against claims of slander with the reservation thatreasonable notice that it was reserving its rights to it could later challenge its duty to defend, whichreimbursement when it first agreed to defend Nautilus did after dismissal of the slander claim.Access, and by sending a letter to Access indicating The district court held that Nautilus had no duty toits intent to seek reimbursement for its defense defend, but could not recover the advancedcosts by motion during the district court action. defense costs because Nautilus had notTogether, the Nevada Supreme Courts certified established that Nevada law permittedanswer and the Ninth Circuits decision applying reimbursement where a duty to defend neverthat answer strengthen insurers right to existed. The Ninth Circuit affirmed that Nautilusreimbursement of advanced defense costs. As the had no duty to defend, but certified to the NevadaNevada Supreme Court noted, Nevada now joins Supreme Court the question of whether an insurerthe majority approach, stating that [a]s our law has is entitled to reimbursement of costs alreadymore forcefully encouraged insurers to offer to expended in defense of its insureds where adefend doubtful claims . . . it is only fair to permit determination has been made that the insurerthose insurers to recover costs that they never agreed to bear.160|Global Insurance Industry Year in Review 2021'