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The Tort Liability Regime and the Duty to Defend

Maryland Law Review, Vol. 58, p. 1, 1999

53 Pages Posted: 14 May 2010 Last revised: 8 Aug 2010

Ellen S. Pryor

UNT Dallas College of Law

Date Written: 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.

Keywords: liability insurance, duty to defend, professional responsibility, tort law

JEL Classification: K13, K14

Suggested Citation

Pryor, Ellen S., The Tort Liability Regime and the Duty to Defend (1999). Maryland Law Review, Vol. 58, p. 1, 1999. Available at SSRN:

Ellen S. Pryor (Contact Author)

UNT Dallas College of Law ( email )

1901 Main Street
Dallas, TX 75201
United States
(214) 752-5959 (Phone)


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