HNRK Coverage Corner
On November 24, 2020, the First Department issued a decision in Wesco Ins. Co. v. Hellas Glass Works Corp., 2020 NY Slip Op 06975, holding that consideration of facts outside the complaint established an insurer’s duty to defend a personal injury action.
Affirming the motion court’s decision, which was previously discussed on this blog, the First Department explained:
Although the duty to defend is primarily determined by the complaint, wooden application of the “four corners of the complaint” rule would render the duty to defend narrower than the duty to indemnify. Based on the pleadings in the underlying personal injury action and third-party action, as well as documents and testimony, and the fact that discovery and depositions in the underlying action are still ongoing, it cannot be said that there is no possible factual or legal basis on which either Wesco's automobile policy or MBIC's general liability policy might eventually be held to afford indemnity coverage.
Although under New York law an insurer, with very limited exceptions, cannot rely on facts outside the complaint to avoid its duty to defend, such external facts can trigger a duty to defend, even if, as was the case here with respect to the Wesco policy, the allegations in the complaint, standing alone, would not.
- Partner
Bradley Nash represents policyholders in insurance disputes and other parties in complex commercial litigation in state and federal courts in New York and across the country. Brad focuses his practice on insurance recovery for ...
Search Blog
Recent Posts
- Ohio Supreme Court Rules Computer Software Cannot Be Subject To “Physical Loss” Or “Physical Damage” Under Insured’s Property Insurance Policy
- Criminal Acts Exclusion Bars Coverage Even Though Insured Not Charged With, or Convicted of, a Crime
- Insurer Not Permitted to Recoup Defense Costs Absent Express Reservation of the Right to Do So
- Liability Insurer May Not Deny Defense Coverage Based On Extrinsic Evidence “Bound Up With the Merits of the Underlying Case”
- Second Circuit Rules That Lower-Tier Excess Policies Were Exhausted by Below-Limits Settlement with Insured
- Does Contra Proferentem Apply to the “Sophisticated Insured”?
- Sexual Misconduct Exclusion Bars Coverage for Negligence Supervision Claim
- Delaware Supreme Court Rejects “Fundamentally Identical” Standard for Interpreting Related Claims Provision
- New York Court of Appeals Rules That Disgorgement Payment to SEC Did Not Constitute an Uninsured Penalty
- “Intentional Nonperformance” of Contractual Obligations Does Not Trigger Policy’s “Willful Acts”
Popular Categories
- Insurance Coverage
- Policy Exclusions
- Duty to Defend
- Cyber Coverage
- CGL Policies
- Additional Insured Endorsement
- D&O Policies
- Business Interruption Coverage
- Excess Insurance
- Construction
- Bad Faith Claims Handling
- COVID-19
- Occurrence/Accident
- Indemnification and Advancement
- Damages
- Rules of Interpretation
- Related Claims
- Duty to Cooperate
- Advertising Injury
- Covered Loss
- Personal and Advertising Injury
- Insurance Brokers
- Confict of Laws
- Discovery/Disclosure
- Appraisal
- Attorney Fees
- Assignment of Claims
- Disability discrimination
- Implied Covenant of Good Faith and Fair Dealing
- Notice
- Privilege/Work Product
- Priority of Coverage
- Intellectual Property
- Contracts
- E&O Policies
- Professional Malpractice
- Rescission
- Intervention/Joinder
- Subrogation
- Settlements
- General Business Law
- Unfair Claims Settlement Practices
Archives
- March 2023
- January 2023
- December 2022
- September 2022
- May 2022
- April 2022
- March 2022
- November 2021
- June 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018