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The Duty to Defend and the Affirmative Defense
Specific jurisdictional flourishes notwithstanding, the duty to defend analysis typically involves some form of the “eight corners rule,” whereby the four corners of the insurance policy are measured against the four corners of the complaint (and sometimes extrinsic evidence) in order to determine whether or not the claims set out in the complaint trigger the insurer's duty to defend. When the insured itself initiates a suit, it is not uncommon for the defendant to assert affirmative defenses against the insured's complaint. In such a context, courts must determine whether or not a responsive pleading ' taking the form of either a counterclaim or an affirmative defense ' can trigger the duty to defend in the same way that a traditional lawsuit does.
The majority rule is that while allegations contained within a counterclaim may trigger the duty to defend, an affirmative defense asserted in response to the insured's complaint cannot. Courts following this majority rule apply the plain language of the insuring agreement and require that a “suit” for damages be filed against the policyholder. California appears to be the lone jurisdiction that will consider affirmative defenses in analyzing an insurer's duty to defend.
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.