Duty to Defend
Courts that have interpreted indemnification provisions that included the duty to defend have explained that this means the consultant must defend its client (pay legal fees on behalf of its client) as the litigation is ongoing — and that it cannot wait until the conclusion of the litigation to determine whether it is found to have negligently performed services and therefore owe a separate duty to indemnify. The courts see the duty to defend and the duty to indemnify as two separate and unique duties.
ConstructionRisk articles relating to Duty to Defend are below.
Insurance Carrier Had No Duty to Defend Engineer in Wrongful Death Action Based on Trench Collapse
An engineer’s general liability insurance carrier ("Utica Insurance") refused to defend a suit against the engineer arising out of the death of a laborer ("Lindsley") in a trench collapse. It contented that the claim was excluded from coverage. The trial court’s...
The Duty to Defend as part of Indemnity Agreement is Alive and Well in California: Don’t be fooled by Favorable Commentary on California SB 972
With the signing into law of California Senate Bill SB 972, California amended Section 2782.8 of its Civil Code, thereby limiting the enforcement of indemnification clauses upon design professionals working for public agencies. Much positive hype and commentary has...
Design Professionals Should not Agree to Defend Clients
There is no common law duty of a consultant to defend its client against third party actions. That duty can only arise as a result of a contractually liability created through the indemnification clause of the contract. Since this is a contractual liability, it is...
Contract Guide for Design Professionals
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