Insurer’s Duty to Defend

An insurer’s duty to defend its insured is broader than its liability for damage claims. The insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. American Home Assurance Co. v. Czarniecki, 230 So.2d 253 (La.1970).

Once a petition states one claim within the policy’s coverage, the insurer has a duty to accept defense of the entire lawsuit, even though other claims in the petition fall outside the policy’s coverage. Ellis v. Transcontinental Ins. Co., 619 So.2d 1130 (La. App. 4th Cir.), writ denied, 625 So.2d 1043 (La.1993).

If the insurer chooses to represent the insured but deny coverage, it must employ separate counsel. If it fails to do so, the insurer is liable for attorney’s fees and costs the insured may incur in defending the suit. Dugas Pest Control of Baton Rouge v. Mutual Fire, Marine and Inland Ins. Co., 504 So.2d 1051 (La.App. 1st Cir. 1987).

When an insurer, with knowledge of facts indicating noncoverage under the insurance policy, assumes or continues the insured’s defense without obtaining a nonwaiver agreement to reserve its coverage defense and without providing separate counsel, the insurer waives such policy defense. Steptoe v. Masco Construction Co., 643 So.2d 1213 (La.1994).

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