THE BUSS RULE
“In a ‘mixed’ action, for what specific defense costs may the insurer obtain reimbursement from the insured? ¶ The answer is: Defense costs that can be allocated solely to the claims that are not even potentially covered. ¶ The reason is this. [A]s to [such] defense costs the insurer has not been paid premiums by the insured.” “[A] ‘mixed’ action, [is one] in which some of the claims are at least potentially covered and the others are not.”
When an insurer asserts a Buss claim, then like a game of chess, it becomes the policyholder’s turn to move. In doing so, the policyholder may protect one’s own interests. “Through reservation, the insurer gives the insured notice of how [the insurer] will, or at least may, proceed and thereby provides [the insured] an opportunity to take any steps that it may deem reasonable or necessary in response.”
There are several response options the policyholder may consider:
1. The most common response by a policyholder to an insurer’s gambit to perfect a reimbursement claim is to do nothing. Most policyholder meekly acquiesce to whatever the insurer chooses to do.
2. The policyholder may politely request that please waive or limit its Buss reimbursement claim.
4. The policyholder may politely request in a non-privileged, open letter that independent counsel please send to the insurer for direct payment monthly invoices that identify fees and costs allocable to claims that are never even potentially covered.
6. Litigation response options to addressed in Practice Pointer: Procedural Alternatives to Determine Disqualifying Conflicts.
 Buss v. Superior Court (1997) 16 Cal.4th 35, 52-53 (Buss).
 Buss, supra, 16 Cal.4th at 47.
 Buss, supra, 16 Cal.4th at 61, fn. 27.
 See, Model Letter: No Consent Without Ethical Compliance.
 See, Model Letter: Please Allocate for Buss Claim.
 See, Model Letters: Please provide details of basis for reservation of rights, Please provide investigation, Please clarify if insurer agrees unqualifiedly to defend and pay for independent counsel, and Insurance company evidence development.
 See, Model Letters: Dependent counsel please disclose conflicts of interest, Withhold CCP §283 authority to bind , No Rule 3-310(F) consent to compensation, Withhold B&P §6104 authority to appear, Ethical compliance questionnaire and Ethical compliance questionnaire cover letter, Dependent counsel evidence development, Dependent counsel presigned verification forms.