James M. Fischer

Abstract

This article explores the uncertainty surrounding an insured’s duty to mitigate losses after an insurer has breached its contract. It examines the arguments for and against imposing a mitigation requirement and concludes that insureds seeking damages for an insurer’s breach of a contractual obligation should be required to mitigate their losses regardless of the type of insurance policy at issue. The article argues that an insured’s failure to act reasonably post-breach should result in the insured bearing responsibility for losses that could have been avoided.

---