Duty to Defend and the Bill Cosby Case
November 2, 2015
By Barry Zalma
Summary: The comedian and actor, Bill Cosby, was accused by many women of acting dishonestly, immorally, and despicably. They have accused him of drugging them and then raping them, conduct that, if true, should never be covered by a policy of insurance.
Cosby's homeowners insurer filed suit for declaratory relief, contending it has no obligation to defend or indemnify Cosby for intentionally sexually molesting plaintiffs, who claimed he defamed them when he denied their charges of rape and sexual molestation. As a result, Cosby has been required to defend four tort actions and two declaratory relief actions brought by his insurer, AIG, in two different states because they wrote homeowners policies in two different states.
|Homeowners insurance policies insure against the risk of the cost to defend and indemnify an insured in case the insured is sued for a tort cause of action seeking damages from the insured.
United States insurance law commonly concludes that the duty to defend promised by a liability insurance policy (like a homeowners policy) is always broader than the duty to indemnify. The broad duty to defend requires the insurer defend its insured, even if the insured is dishonest, despicable, or immoral, and if there is a potential that the allegations of the suit filed against the insured could possibly be covered, a defense must be provided.
The standard homeowners policy promises the following:
If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage applies, we will:
* * *
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when our limit of liability for the "occurrence" has been exhausted by payment of a judgment or settlement.
[Form HO 00 03 10 00]
Reuters reported that Cosby—citing financial pressures—recently asked a federal judge to dismiss or put on hold a lawsuit in which American International Group Inc. sought to avoid paying for his defense against defamation claims by women who also accused him of sexual abuse.
AIG had, in June 2015, sued Cosby in Massachusetts and California seeking declaratory relief claiming that the homeowners insurance policies it issued to him in those states specifically excluded the claims and suits filed by some of his accusers. It said these provide coverage for personal injury claims, which include defamation, but not for personal injury claims arising from "sexual, physical or mental abuse."
The personal injury coverage could provide as follows:
This insurance applies to:
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