The Draft Restatement Improperly Limits Use of Extrinsic Evidence in Insurer Decision-Making on Duty To Defend

The thesis of this article is that a liability insurer, in determining whether it has a duty to defend a suit against one claiming to be an insured should be entitled to consider any evidence extrinsic to the complaint against the insured that bears on facts not at issue in the suit it has been called upon to defend; in certain circumstances, it may even be entitled to consider evidence bearing on facts that are at issue in that suit. That issue is now in dispute in the process of drafting a “Restatement of the Law of Liability Insurance.” This article will describe the dispute and criticize both of the competing drafts.

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