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This question involves an insurance companies duty to defend.

Centennial, CO |

If a complaint is amended to exclude initial claims which are not covered under and insured's policy, such as a negligence resulting in injury, does the insurance company still have a duty to defend? In my prior question, I asked why they would still be defending the insured from breach of contract claims which are clearly not covered by any insurance policy i was told that the duty to defend is broader than the duty to indemnify and they can't just drop the defense in the middle of a lawsuit. This makes sense but the case is in it's early stages, not even a trial date or mediation yet. So the insurance company has a clear way out of paying for this defense? What would cause them to keep defending them now that they no there are no longer any covered claims remaining, can I stop this?

Attorney Answers 5

Posted

Yes, the insurance company still does have a duty to defend if they were initially drawn into the case You have NO control whatsoever about whether the insurance company represents the defendant. That is an issue solely between the insured and the insurance company and you do not have standing or a say in their relationship. So, you can't stop it whatsoever.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice. Mr. Leroi answers questions on Avvo because he strongly believes in public service from his years as a judge, magistrate, and prosecutor. If you need to ask any follow up questions because my answer did not fully address your question, feel free to call Chris or post an additional question. Thank you.

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Asker

Posted

excellent - Thanks

Philip Anthony Fabiano

Philip Anthony Fabiano

Posted

It is very tricky for an insurance company to withdraw it representation. They just can't make this decision on their own without exposing themselves to potential liability. If the claim has nothing to do with the insurance policy, what you may see is the insurance company filing a declaratory judgment action against the "insured." The insurance company in a "separate" action --while they continue to represent their insured on the underlying case--claiming there is no coverage for the claim.

Posted

It doesn't matter where you are in the litigation. The insurance company decided to defend..they are defending. It's a contractual obligation between the insured and his insurance company. It really doesn't have anything to do with you and you have no grounds to do anything. You are not a party of their agreement.

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1 comment

Asker

Posted

excellent - thanks

Posted

Mr. Leroi is right. You have no control over whether the insurance company represents the defendant and really it shouldn't matter to you because your obligation and burdens are the same regardless of whether the opposing party has an insurance company defending them or not. As a general note, the failure to defend when the duty is triggered can create huge problems for the insurance company - most don't take chances with it.

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Asker

Posted

excellent - thanks

Collin J. Earl

Collin J. Earl

Posted

You are welcome.

Posted

They have duty to defend, and you have no control

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Posted

The insurance company's obligation to defend depends on the nature of the contract between the insured and the insurance company. In some circumstances, the insurance company will evaluate and defend an action without accepting their responsibility to pay the claim in the event a judgment enters against their insured. This is called a reservation of rights; essentially to defend but not pay.

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