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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.
New York's Latest Cybersecurity Commitment
On Aug. 9, 2023, Gov. Kathy Hochul introduced New York's inaugural comprehensive cybersecurity strategy. In sum, the plan aims to update government networks, bolster county-level digital defenses, and regulate critical infrastructure.
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office
A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.