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Is an Insurer Obligated to Defend the Prosecution of Affirmative Claims on Behalf of Its Insured?
The typical commercial general liability (“CGL”) policy requires insurers “to defend any suit against the insured seeking damages on account of ' bodily injury or property damage to which this insurance applies.” This plain, unambiguous language restricts the insurer's duty to defend suits for damages “against” the insured. Courts undertaking a thorough review of the policy language consistently rule that an insurer has no duty to defend an insured's affirmative claims (e.g., counterclaims, cross-claims, or third-party demands). Nevertheless, over the past two decades, some courts have abdicated their judicial obligation to enforce this plain, unambiguous policy language.
Instead, some jurisdictions apply a manufactured legal analysis of whether the insured's affirmative claims are “intertwined with” and “necessary to” the insured's defense. If they are, then the courts hold the insurer responsible for the costs associated with the affirmative claims. This test is unsupported by any policy language. Also, as discussed below, this test produces wildly varying results, leaving both the policyholder and insurer in an unpredictable forum. Parties to a contract are better served if the courts base their rulings on the unambiguous policy language, thereby eliminating unexpected results for both parties.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Protecting Innovation in the Cyber World from Patent Trolls
With trillions of dollars to keep watch over, the last thing we need is the distraction of costly litigation brought on by patent assertion entities (PAEs or "patent trolls"), companies that don't make any products but instead seek royalties by asserting their patents against those who do make products.