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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.
P.J.P. Mechanical Corporation v. Commerce and Industry Insurance Company
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?