Insurance Contracts and Judicial Discord over Whether Liability Insurers Must Defend Insureds' Allegedly Intentional and Immoral Conduct: A Historical and Empirical Review of Federal and State Courts' Declaratory Judgements -- 1990-1997
This Article will present some compelling evidence arguing against the use of the declaratory judgment action to resolve duty-to-defend controversies in state and federal courts. Part I presents a brief overview of federal and state declaratory judgment statutes and of the scope and purpose of liability (third party) insurance contracts. Part II discusses the origin and scope of insurers' duty to defend and pay defense costs under liability contracts. Part III addresses these difficult and complex changes. Part III also reports that both questions generate serious conflicts among state and federal courts. Part IV discusses whether insurers must defend lawyers and physicians who have been accused of immoral conduct. Parts V and VI examine whether homeowners' insurers have a duty to defend insureds against two extremely serious and widespread allegations-"sexual molestation" and "wrongful-death." Finally, Part VII presents an empirical analysis of federal and state courts' duty-to-defend declaratory judgments between 1900 and 1997. The Article concludes by encouraging litigants to weigh seriously the efficacy of asking courts to determine whether liability insurers must defend third-party suits involving intentional torts or allegations.
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