The Tort Liability Regime and the Duty to Defend
Ellen S. Pryor
UNT Dallas College of Law
Maryland Law Review, Vol. 58, p. 1, 1999
Virtually all standard liability insurance policies provide insurance for defense costs in addition to insurance for indemnity of covered claims. This article examines the operation and implications of this “defense insurance” as it relates to various goals of the tort liability system. Whether and on what terms potential defendants can obtain insurance against defense costs are factors that bear on the justice and efficiency of the tort system. In addition, the structure of the defense obligation implicates issues of compensation and systematically affects the litigation strategies and settlement choices of parties to tort litigation. A careful look at the relationship between defense insurance and the tort litigation system is especially timely now, because the nature and scope of the defense obligation have become increasingly contested in recent years. With a richer understanding of the theory and structure of defense insurance, we will be better equipped to implement the defense obligation in ways that are consistent with the efficiency and fairness objectives of the tort liability regime.
Number of Pages in PDF File: 53
Keywords: liability insurance, duty to defend, professional responsibility, tort law
JEL Classification: K13, K14Accepted Paper Series
Date posted: May 14, 2010 ; Last revised: August 8, 2010
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