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Insurer’s Duty to Defend Does Not Include Duty to Pursue Counterclaim

At first blush this seems simple: “defend” does not mean “prosecute.” But there is a split among jurisdictions as to whether the insurer’s duty to defend includes the duty to pursue a counterclaim that is factually intertwined with the defense, or may result in an affirmative recovery that would offset any liability. Massachusetts, in a…
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Estoppel and Agency Theories for Non-Signatories to Compel Arbitration

A twisted set of underlying facts did not detract from the core of an appellate court decision: even if one party to a contract with an arbitration clause was not part of a lawsuit, agents and closely-related persons/entities could compel arbitration. That is the outcome of a California Court of Appeal decision. Two contractors signed…
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“Arising Out of” is Not the Functional Equivalent of “Proximately Caused by”

The NY Court of Appeals, construing language of an insurance endorsement, has held that the endorsement terms established a proximate cause standard. In the process, the court reiterated that a proximate cause standard is narrower than the phrase “arising out of.” Applying the proximate cause standard, the appellate court held that a subcontractor’s carrier had…
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