Thus far, we have seen that although the "targeted tender" doctrine permits an insured to avoid or take an end run around the "other insurance" clause of the commercial general liability (CGL) policy, the insured's right to make a targeted tender is based upon particular policy language rather than upon public policy considerations. The doctrine can therefore be eliminated by appropriately drafted insurance coverage language.

See Related Article: Clash of Coverage Doctrines, Part One

A second caveat to the application of the targeted tender doctrine is that, according to the Supreme Court discussion in Burns, the right to make a targeted tender is unique to the insured. In other words, if the insured tenders its defense of a claim to its own CGL carrier, then that carrier is not entitled to make a "targeted tender" to another insurance company in order to avoid the application of its own coverage. Those insurance companies responding to targeted tenders are well advised to initially consider who is actually making the tender and to require confirmation from the insured party itself that it is the one making the targeted tender. In at least some instances, one will find that the targeted tender is not actually being made by the insured but rather by the insured's own CGL insurance carrier, something that is not permitted.