April 25, 2019

Unraveling the Duty to Defend : Evaluating, Applying, and Understanding Its Limits

By Michael Keeley, C. Adam Brinkley, and Justin P. Melkus

The duty to defend is a key responsibility of insurers under most insurance policies.1 While the duty to indemnify is also of great importance, the need for indemnity may be reduced or even eliminated by a successful defense. And insureds count on their policies to guard against not only the risk of their potentially bona fide liability to others but also the risk of having to defend against lawsuits based on highly disputed—or even outright frivolous—allegations. For this reason, the duty to defend is broadly construed across jurisdictions,2 and the insurer should always carefully consider the risks inherent in denying a claim for defense or withdrawing a defense during a lawsuit.

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