Comments on: “Judge OKs grisly insurance payout”

By: David Schwartz

David Schwartz — Thu, 15 Jul 2010 02:28:34 +0000

This seems like an fairly frivolous lawsuit. The theory is that she failed to warn neighbors that her son was home. But it seems like such a warning would have been utterly futile. Would they really have changed their routine or taken additional precautions?

Pretty likely, they’re just trying to get this in front of a sympathetic jury — and who wouldn’t be sympathetic? Subtly hint that the money is coming from a faceless insurance company and the law will be largely ignored.

Defending against this kind of thing *is* precisely why people have insurance policies. We have insurance to protect ourselves against very rare, but very expensive, lawsuits.

By: Commentor

Commentor — Wed, 14 Jul 2010 19:57:02 +0000

Whether or not something was forseable is a question of fact to be determined on the merits of the case; if coverage would exist if it were forseable, and the policy includes both a defense and indemnity, then the insurance company has a duty to defend.

Insurance that did not defend frivolous or baseless claims wouldn’t insure very much.

By: Patrick

Patrick — Wed, 14 Jul 2010 15:08:30 +0000

I don’t see a problem with this result at all. She was sued for failing to warn neighbors of her son’s dangerous propensities, but obviously she had a strong case that she couldn’t foresee a murder. The typical definition of “accident” in a homeowners policy is an unforeseen or fortuitous event, so from her perspective her liability did arise from an “accident,” though that isn’t true of her son.

The insurer guarantees it will defend against claims arising from otherwise not-excluded accidents, and it has the option, where it feels the accident probably isn’t covered but is in doubt, to defend with one lawyer while filing a declaratory judgment to invalidate coverage with another. That’s what all the better insurers do. It’s industry practice. If the insurer fails to defend an arguably covered claim that later turns out to be covered, it’s on the hook for defense costs.

Any adjuster or insurance defense lawyer could tell you this was a pretty easy case, and it’s important to remember that insurers charge premiums for this service. The cost is front-loaded.