(Editor’s Note: This article has been contributed by Stephen Brown, Carl Pernicone and Samuel Reich, attorneys at Wilson Elser. Refer to the respective author bio pages for information about their practice areas and expertise.)

A liability policy imposes two separate and distinct duties upon an insurer: a duty to defend and a duty to indemnify. The duty to defend requires that the insurer provide legal counsel to its insured in the event of a lawsuit, while the duty to indemnify requires the insurer to satisfy a judgment entered against its insured. An insurer’s duty to defend can be triggered without activating the insurer’s duty to pay for the loss. This is because all jurisdictions find the duty to defend to be greater than the duty to indemnify.


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