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An Insurer’s Duty to Defend - Part I

Thu, 03 Apr 2014
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Published in Articles

The standard general liability insuring agreement provides that an insurer has the right and duty to defend an insured in a suit seeking covered damages. The issue is does the suit seek covered damages and how is that determination actually made?

The analysis in all states involves, at a minimum allegations in the complaint and the terms of the policy. In clarification, the complaint includes only allegations and are not proven facts.

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definition of tort requires that the plaintiff prove that there was a duty owed, duty breached, damages are as a result and lastly they are the proximate cause of duty oed and breached.

Almost every jurisdiction requires an insurer to defend if there is any possibility that the allegations give rise to a covered claim. This means that if multiple claims are alleged, but only one is covered, the insurer must defend the entire action. A few states do allow reimbursement of defense costs associated with non-covered claims, if the insurer can allocate and separate the costs from the covered claim.

Most jurisdictions also require that an insurance company analyze the facts pleaded as they decide whether to defend. Accordingly, assuming the allegations suggest a covered claim, an insurer must defend, even if the claim ultimately may not be proven by the plaintiff. Author: Partners of Claims Resources and Solutions LLC publishes this article as a public service. It is provided for general information and is not intended to replace legal advice for specific cases.

If you have more on this topic you would like to share. Please register and upload at http://www.ClaimsResources.com. For more information on this topic please email us at This email address is being protected from spambots. You need JavaScript enabled to view it. .

The insurance policy agreement of the standard general liability form also provides that an insurance company pay all sums the insured becomes legally liable to pay because of covered damages. This includes their duty to defend and ultimately indemnify.

The duty to indemnify arises from a judgement or a settlement based on the facts of a covered event.

 

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