Understanding the 'Duty to Defend' in General Liability Policies

When a business faces a lawsuit, one of the most critical aspects of its general liability insurance policy is the insurer's "duty to defend." This basic obligation ensures that the insurance company provides legal representation for the policyholder when a covered claim arises. However, the scope of this duty, the differences between defense and settlement, and how policy language impacts coverage disputes can significantly influence the outcome of a claim.

How the Duty to Defend Works

The duty to defend means that the insurer is generally required to hire and pay for legal counsel to defend the policyholder in a lawsuit alleging damages covered under the policy. Unlike the "duty to indemnify," which concerns paying settlements or judgments, the duty to defend is typically broader. In most cases, if even one claim in a lawsuit could be covered, the insurer must provide a defense for the entire suit.

Insurance companies usually choose and control the legal team, ensuring an experienced attorney handles the case. The costs associated with this defense, including attorney fees, court costs, and expert witness fees, are covered by the insurer, often outside the policy limits unless stated otherwise.

Note: While this is typical for general liability policies, other liability policies such as Directors and Officers (D&O), Errors and Omissions (E&O), Cyber, and Employment Practices Liability (EPL) may include defense costs within the limits of liability. This means legal expenses could reduce the total coverage available for settlements or judgments, making it essential to review policy details carefully.

Defending vs. Settling a Claim

A key decision in any lawsuit is whether to defend the claim vigorously in court or negotiate a settlement. Many policies contain clauses stating that the insurer controls the defense and settlement decisions. Insurers often weigh the costs of litigation against the potential settlement amount to determine the best course of action.

Defending the Claim

If the insurer believes the case is weak or frivolous, it may choose to fight the lawsuit in court. This approach is more common when the insured has a strong defense or when a settlement might encourage further claims.

Settling the Claim

If litigation costs are high or the risk of an adverse judgment is significant, insurers may opt to settle. While the insurer has a right to negotiate settlements, some policies include a "consent to settle" clause requiring the policyholder’s approval before finalizing an agreement.

If the insured wants to fight the claim despite the insurer’s recommendation to settle, or vice versa, the policy terms will determine whether the insured has the right to do so.

How Policy Language Impacts Coverage Disputes

Insurance policies vary in how they define the duty to defend. Certain clauses and exclusions can lead to disputes over whether a claim is covered, such as:

Broad vs. Limited Duty to Defend

Some policies have explicit language stating that the insurer must defend against all claims with even a remote possibility of coverage. Others may narrow the duty to specific circumstances, limiting when and how legal defense is provided.

Reservation of Rights

In cases where coverage is uncertain, insurers may issue a reservation of rights letter, indicating that they will provide a defense but may later deny coverage if the claim is found to fall outside policy terms.

Policy Exclusions

Common exclusions—such as intentional acts, contractual liabilities, or certain types of damages—can lead to disputes over whether the insurer must defend the claim.

Understanding the duty to defend is crucial for businesses seeking to protect themselves from legal risks. Policyholders should carefully review their liability coverage, to make sure they understand their insurer’s obligations and any potential limitations. Consulting with an insurance professional can help clarify the policy language and ensure adequate protection in the event of a lawsuit.

Don’t wait until a lawsuit arises to find out what your policy includes. Concklin Insurance is here to help you get a clear picture of your coverage so you can make informed decisions with confidence. Contact us today to review your policy and ensure you have the protection your business needs.