August 12, 2020

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August 12, 2020

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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. 

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About this Author

Darren A. Feider Attorney Williams Kastner Law Firm

Darren Feider is a Member in the Seattle office. His practice involves general employment litigation of wrongful discharge and discrimination claims, the drafting of employment and consulting contracts, non-compete agreements and severance packages for both employees and employers, and conducting investigations for private and public employers in response to EEOC and Washington State Human Rights Commission complaints. He has represented employers in unpaid wage actions. He also handles general commercial litigation.