Legal Alerts

Supreme Court of Massachusetts Rejects the Application of "In For One, In For All" Duty to Defend Standard


In a pair of recent cases challenging the scope of a title insurer's duty to defend, the Supreme Court of Massachusetts rejected the application of the commonly applied commercial-general-liability policy "in for one, in for all" duty to defend standard. These decisions deviate from the majority view and erode the breadth of a title insurer's duty to defend. With its decisions, the court held that the broadly applied CGL duty to defend standard, often called the "complete defense" rule and requires a general liability insurer to defend an entire lawsuit if any of the claims against its insured are potentially within the scope of coverage, is inapplicable in the context of title insurance. The court found that "a title insurer does not have a duty to defend simply because the allegations in the underlying complaint are 'reasonably susceptible' of an interpretation that they state or adumbrate a claim covered by the policy terms." Deutsche Bank Nat. Ass'n v. First American Title Insurance Co., Case No. SJC-11265, -- N.E.2d -- (July 11, 2013) (citation currently unavailable). The court explained that application of the CGL standard to a title insurance policy "threatens to sweep a whole host of uncontemplated risks into the ambit of title insurance." Id. The Deutsche Bank case followed the court's April 2013 ruling in GMAC Mortgage v. First American Title Ins. Co., 464 Mass. 733, 744 (2013) wherein the court highlighted the fundamental differences between title insurance and CGL coverage, particularly in that title insurance is backward looking, covering risks that are in existence when the policy issues, as opposed to general liability coverage which insures against future risks. On a matter of first impression, the court expressly held that "title insurers should not be obliged to defend against noncovered claims just because they may be asserted in litigation that also implicates title-related issues..." and that a "title insurer is only obliged to defend the insured on the covered claims." Id. at 740, 744. 

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