Discovery Alone Does Not Trigger Duty to Defend
On December 24, 2012, the Court of Appeals (Div. I) affirmed summary judgment inWestern National Assurance Co. v. Maxcare of Wa. (pdf.), finding that a total pollution exclusion eliminated coverage for a lawsuit premised on the use of cleaning chemicals to remediate fire damage in the plaintiffs’ home. While the allegations in the underlying complaint clearly implicated the total pollution exclusion, the insured argued that discovery in the underlying lawsuit had revealed other potential theories of liability beyond the scope of the total pollution exclusion. But the Court of Appeals rejected this argument and reasoned that the duty to defend arises at the time a complaint is filed such that information later uncovered during discovery is not the type of extrinsic evidence that an insurer must consider when evaluating an unambiguous complaint.