Insurer's Duty to Indemnify: Scope, Burden of Proof and Evidentiary Considerations

Most insurance coverage practitioners are intimately familiar with the law governing an insurer's duty to defend. But the insurer's duty to indemnify is often less well understood given the relatively little guidance in the case law and treatises.

And not only is the necessary legal analysis for the two duties fundamentally different, but the duty to indemnify also raises significant burden of proof and evidentiary issues.

While some courts have held that there must be a duty to defend before there is a duty to indemnify, others have found that an insurer must indemnify its insured even if the duty to defend never arises. And unlike an insurer's duty to defend—which turns on the pleadings and the policy—the duty to indemnify turns on the facts and circumstances giving rise to liability in the underlying dispute, allowing parties to introduce evidence during coverage litigation to establish or refute the duty to indemnify.

The program will focus on the insurer's duty to indemnify and guide insurance counsel through issues related to whether liability insurance policies obligate the insurer to pay a settlement or judgment involving the insured. The program will distinguish the duty to indemnify from the duty to defend, explain the evidence necessary to establish—or defend against—a claim for indemnity, and discuss its application in the general liability context, D&O context, and beyond.