”Potentiality” is Key to Insurer’s Duty to Defend
Talley’s Tip: In Maryland, a liability insurer has a duty to defend an insured against any and all potentially covered claim(s) made against that insured in a lawsuit. In a frequently cited case called Brohawn v. Transamerica Insurance Company, 276 Md. 396, 407-408 (1975), Maryland’s highest appellate court decided that an insurer has a duty to defend any claims alleged against its policyholder that are “potentially covered” by the policy. The “potentiality” is a key issue. Consider, for example, that someone gets in a bar fight punching another patron. Well, in addition to criminal assault charges, the aggressor might also be sued in a civil court. The victim’s allegations would likely be that he/she is entitled to damages for civil assault and battery which are “intentional torts.” Will the aggressor’s liability insurance (likely found in his/her homeowner’s policy) pay for a lawyer to defend against the victim’s lawsuit? It depends.
Under most liability policies you will find that insurance coverage is excluded for bodily injury which is expected or intended by any insured or which is the foreseeable result of an act or omission intended by any insured. So, without any other factors changing the scenario, if the aggressor’s...
