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The Duty to Defend and the Affirmative Defense
Specific jurisdictional flourishes notwithstanding, the duty to defend analysis typically involves some form of the “eight corners rule,” whereby the four corners of the insurance policy are measured against the four corners of the complaint (and sometimes extrinsic evidence) in order to determine whether or not the claims set out in the complaint trigger the insurer's duty to defend. When the insured itself initiates a suit, it is not uncommon for the defendant to assert affirmative defenses against the insured's complaint. In such a context, courts must determine whether or not a responsive pleading ' taking the form of either a counterclaim or an affirmative defense ' can trigger the duty to defend in the same way that a traditional lawsuit does.
The majority rule is that while allegations contained within a counterclaim may trigger the duty to defend, an affirmative defense asserted in response to the insured's complaint cannot. Courts following this majority rule apply the plain language of the insuring agreement and require that a “suit” for damages be filed against the policyholder. California appears to be the lone jurisdiction that will consider affirmative defenses in analyzing an insurer's duty to defend.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.