Understanding Duty to Defend versus Duty to Indemnify

When Does the Duty to Defend Kick In?

Three steps help determine the duty to defend, and these are:

• The insured’s policy must clearly mention the duty to defend against claims. Any ambiguous language in the policy will work in favor of the insurance company.
• The slightest possibility of a claim within the bounds of the policy against the insured succeeding triggers the duty to defend. According to the pleadings rule (expressed by the Supreme Court), the insurer must defend the policyholder if there is even a slight chance of winning the claim by the third party.
• Lastly, an insurer must defend their policyholder depending on whether the claim is derivative.

Insurer’s Duty to Indemnify

There is a lot of confusion about the duty to defend and indemnify, which are often linked. However, that is not the case, as the duty to indemnify comes at the end of a lawsuit when the liability gets established. Simply put, the insurer’s duty to indemnify is to settle claims.

Unlike the duty to defend that comes out of the policy, the duty to indemnify arises after examining all the evidence and information throughout the case period.

Professional Liability Impacts the Duty to Indemnify

Compensation gets awarded based on all the evidence presented. However, the insurer will only pay the claims up to the limits of the professional liability policy. If the third party wins the case, an insurer will only pay claims up to the limits mentioned in the insured’s policy.

Some jurisdictions argue that if there is no duty to defend, then there is no duty to indemnify, while other jurisdictions hold that even if the duty to defend exists, an insurer may not have the duty to indemnify.

What is the Indemnification Provision?

Indemnification provisions are all the clauses mentioned in a policy to protect a party against the legal actions of the other. When there are no indemnification provisions in a contract or policy, there may be a case of implied indemnification. However, if the indemnification provisions are in the policy, the courts consider the policy provisions the final word and tackle the case accordingly.

In the case of a duty to defend, an indemnification provision in which an insurer is responsible will trigger the insurer’s duty to defend. In the case of a duty to indemnify, the indemnification provision protects the insurer by only processing claims up to the policy limits if the third party wins the case.

In certain states, like California, the indemnitor must defend actions or proceedings brought against the indemnitee at their request regarding the matters embraced by the indemnity. This may not be the case with other states, as the state law for defense obligations may vary.

Case Study: Matt Fisher Progressive Insurance Case

To help understand the duty to defend and the duty to indemnify, let’s go over a real-life car accident case involving two vehicles. This story is about a legit wrongful death case involving a car accident posted on Matt Fisher’s tumbler account.

A vehicle collided with another when a negligent driver rushed through their red light into an oncoming car. Matt Fisher’s sister drove her vehicle as the traffic light turned green. However, another vehicle from the other side violated their red traffic light and smashed into the driver’s car. The accident immediately resulted in Matt Fisher’s sister’s death, leading to what many would say is an “open-and-shut” case.

The family pursued the negligent driver’s insurer, who settled the claims in the deceased victim’s estate. However, the compensation barely amounted to anything since the negligent driver did not have sufficient coverage. Luckily, the victim had underinsured coverage with Progressive Insurance.

When it was time for the under-insured coverage to kick in, Progressive lawyers took the stage to defend the negligent driver instead of their policyholder to get out of paying money for the victim’s estate. In the end, the jury found that the other driver was guilty and negligent, which raises questions about the defense obligation of Progressive Insurance.

This is a wrongful death case due to a car accident, and when Matt Fisher’s family pursued the other driver’s insurance company, the duty to defend kicked in. The negligent party’s insurer realized that the other party had a chance of winning, the claim was not of derivative nature, and that the insured’s policy mentioned the duty to defend.

All these three rules created the duty to defend for the negligent party’s insurer to pay the settlement up to the policy limits into the victim’s estate. The evidence presented in court was sufficient for the jury to decide that the other driver was negligent, resulting in compensation.

The financial obligation at the end of the lawsuit created the duty to indemnify, which the negligent party’s insurance company complied with.

The principles behind the duty to defend and duty to indemnify and the state laws can often get confusing. If you have a car accident, contact us at (213) 596-9642 and get a free consultation with our underinsured motorist attorney legal experts today!