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Duty to Defend

In finding that an insurance company was required to defend, the Fourth Department explained the relevant criteria in the context of a summary judgment motion:

An insurer’s duty to defend is “ ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest . . . a reasonable possibility of coverage’ ”.. .“If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” ….Thus, the duty to defend exists “ ‘even though facts outside the four corners of [the] pleadings indicate that the claim may be meritless or not covered’ ” ….

The insured has the initial burden of establishing coverage under an insurance policy while the insurer bears the burden of proving that an exclusion in the policy applies to defeat coverage … .“[E]xclusions are subject to strict construction and must be read narrowly” … .In order to establish that an exclusion defeats coverage, the insurer has the “heavy burden” of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts ….An insurer “will be required to ‘provide a defense unless it can “demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, [in toto], are subject to no other interpretation” ’ ” … .  Georgetown Capital Group, Inc. v Everest National Insurance Company, 82, CA 12-01337, 4th Dept. 3-15-13

 

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