You are here: / / Duty to Defend

Duty to Defend

The First Department determined that the insurer was obligated to defend the defendants even though subsequently it may be able to demonstrate the insured did not cause the injuries.  The duty to defend is determined by comparing the policy to the complaint.  If the pleaded claims are potentially within the scope of coverage, the insurer’s duty to defend is triggered:

An insurer may obtain a declaration absolving it of its duty to defend only when a comparison of the policy and the underlying complaint on its face shows that, as a matter of law, “there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy” … . As this Court has observed, “[T]he primary obligation of an insurer is to provide its insured with a defense” …, an obligation that is incurred “if facts alleged in the complaint fall within the scope of coverage intended by the parties at the time the contract was made” … . “By contrast, the duty to indemnify requires a determination of liability” … .

Because the underlying complaints pleaded claims that were potentially within the scope of coverage, plaintiff is obligated to defend the underlying actions. Whether plaintiff might ultimately be able to establish that its insured did not cause the injuries alleged in the underlying actions involves questions of fact yet to be resolved; it is not an issue that can be determined as a matter of law by examination of the insurance contract. Thus, it does not afford a basis to relieve plaintiff of its duty to provide a defense… . Greewich Ins Co v City of New York, 2014 NY Slip Op 07933, 1st Dept 11-18-14

 

You might also like
HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT).
PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHEN HE FELL FROM A LADDER, NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT). ​
DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT).
A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION ALLOWING WARRANTLESS SEARCHES; THE CONDITION ALLOWING ALLOWING WARRANTLESS SEARCHES FOR DRUGS WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION (FIRST DEPT).
PLAINTIFFS ALLEGED THEY PAID A BROKER FOR THE INSURANCE POLICY ISSUED BY DEFENDANT INSURER BUT THE INSURER CANCELLED THE POLICY FOR NONPAYMENT; THE INSURER ALLEGED THE BROKER WAS NOT IN THE CHAIN OF BROKERS LEADING FROM PLAINTIFFS TO THE INSURER; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT (FIRST DEPT).
PLAINTIFF CAN BE ACCOMPANIED BY A NONLEGAL REPRESENTATIVE TO A DEFENSE PHYSICAL EXAM (FIRST DEPT).
THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION.
A PENALTY OR DISGORGEMENT STEMMING FROM IMPROPER PROFIT-TAKING BY BEAR STEARNS IS NOT AN INSURABLE LOSS, EVEN IF THE BENEFITS OF THE PROFIT-TAKING WENT TO OTHERS AND NOT TO BEAR STEARNS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Reversible Error to Deny Defendant’s Request for a Jury Instruction on... Wooden Flooring With Gaps Between the Planks Constituted an Elevation-Related...