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Is an Insurer Obligated to Defend the Prosecution of Affirmative Claims on Behalf of Its Insured?
The typical commercial general liability (“CGL”) policy requires insurers “to defend any suit against the insured seeking damages on account of ' bodily injury or property damage to which this insurance applies.” This plain, unambiguous language restricts the insurer's duty to defend suits for damages “against” the insured. Courts undertaking a thorough review of the policy language consistently rule that an insurer has no duty to defend an insured's affirmative claims (e.g., counterclaims, cross-claims, or third-party demands). Nevertheless, over the past two decades, some courts have abdicated their judicial obligation to enforce this plain, unambiguous policy language.
Instead, some jurisdictions apply a manufactured legal analysis of whether the insured's affirmative claims are “intertwined with” and “necessary to” the insured's defense. If they are, then the courts hold the insurer responsible for the costs associated with the affirmative claims. This test is unsupported by any policy language. Also, as discussed below, this test produces wildly varying results, leaving both the policyholder and insurer in an unpredictable forum. Parties to a contract are better served if the courts base their rulings on the unambiguous policy language, thereby eliminating unexpected results for both parties.
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.
Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
One Overlooked Element of Executive Safety: Data Privacy
Executives have access to some of the company's most sensitive information, and they're increasingly being targeted by hackers looking to steal company secrets or to perpetrate cybercrimes.