It’s a long-held axiom that an insurer’s duty to defend is broader than its duty to indemnify. But what does the duty to defend encompass? On what is that duty based: the factual allegations in the complaint, or legal theories of recovery such as negligence? Can other evidence not in the complaint be considered? What if the complaint includes other allegations obviously not covered?

Further, when does the duty to defend end? What happens when an insurer determines it has no duty to defend only to later learn new information that shows an obligation?

Lines of Coverage

Typical policy language, and the findings and legal implications that result, help better define the insurer’s duty to defend the insured. The commercial general liability, business auto, personal auto, and homeowners’ forms are much of what the Insurance Services Office (ISO) has to determine its level of responsibility. So, first, let’s look at just what those forms say.

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