Duty to Defend

When a person with a personal injury files a lawsuit against an at fault driver for a car accident, the at-fault driver’s insurance company normally has a duty to defend their insured. This normally includes providing for a defense, payment of attorney’s fees, and payment of court costs.

This duty to defend will be triggered when a complaint is filed that alleges facts against the insured within the coverage of the insurance policy. The exact language of the insurance policy contract will dictate when the duty to defend applies. Some insurance policies exclude a defense for damages caused intentionally by their insured.

If an insurer unjustly denies coverage and refuses to defend an action brought against their insured, the insurance company’s actions may constitute a breach of contract, possibly rendering it liable for the amount of the judgment entered against the insured, even if the judgment exceeds the policy limits.

Every so often, an insurance company will refuse to defend against a law suit against their insured, leaving the injured person with little means to a full recovery. It then becomes necessary for the injured person to establish their claim against the defendant as an individual and then take further legal actions against them, or their insurance company, to recover any awarded compensatory damages.