If the person obtaining the insurance was a "broker"-- that is, was a person who transacted insurance with, but not on behalf of, the insurer--the insured's suit against the insurer will fail.
William Reed Jenkins III (Jenkins) was allowed as a result of a plea agreement with the U.S. Attorney to plead guilty to only two counts of wire fraud in violation of 18 U.S.C. ? 1343.
A Texas insurance broker admitted he was negligent in failing to procure insurance for his client and still avoided liability because the damages incurred by the putative insured would not have been covered even if the policy was acquired as ordered.
An insurance agent or broker is obligated to immediately advise the insurer of a suit served upon its insured. The insured is, similarly, obligated to advise the agent or the insurer, immediately upon being served.
Although most agents and brokers understand that their duties and obligations to an insured are limited, and they do not generally have a duty to volunteer to an insured that the client should procure additional or different insurance coverage.
The duty to defend is always broader than the duty to indemnify. California case law, and that of most states, requires that the insurer provide a defense if there is "potential" that coverage applies.