Pigs Can Fly–Boilerplate Demand For “Other Relief” Can Trigger The Duty To Defend

Plaintiff lawyers typically seek in complaints not only specific relief, such as damages, but also “such other relief as deemed appropriate.” That boilerplate language is usually ignored when courts determine whether an insurance company has a duty to defend its policyholder.  But now an Illinois appellate court has held that plaintiffs’ prayer for “other relief” in an underlying lawsuit is sufficient to allege a suit for “damages’ for the purpose of triggering the insurer’s duty to defend. See Country Mut. Ins. Co. v. Bible Pork, Inc., 2015 IL App(5th) 140211, 2015 WL 7424845 (Ill. App. Nov. 20, 2015) (“Bible Pork”).

The correct way to view an insurers duty to defend
The correct way to view an insurers’ duty to defend

Nuisance Suit Sought “Damages” Because It Sought “Such Other Relief as Deemed Appropriate”

In Bible Pork, the livestock producer policyholder was in the process of building a hog factory when it was sued by 21 plaintiffs who sought to have the factory declared a nuisance before it started operating.  Plaintiffs contended that the facility “would be a source of disagreeable noises, odors, dust particles, surface water contamination, and loss of property values.”  Slip op. at *1.  The complaint sought declarations of public and private nuisance, but also sought “such other relief as deemed appropriate.” Id. The policyholder sought defense and coverage from its insurer, but the insurer denied coverage for a number of reasons, including that the suit sought only a declaratory judgment and did not seek damages for personal injury or property damage.

The insurer then brought a declaratory judgment action against its policyholder, seeking a ruling that it had no duty to defend or indemnify. In the insurance action, the trial court granted the policyholder’s summary judgment motion, finding that the underlying suit was a suit seeking damages because the complaint specifically asked for “other relief deemed appropriate.”

On appeal, the Illinois appellate court affirmed. The court noted that “[t]he duty to defend is much broader than the duty to indemnify because the duty to defend is triggered if the complaint potentially falls within a policy’s coverage, whereas the duty to indemnify is triggered only when the resulting loss or damage actually comes within a policy’s coverage.”  Slip op. at *3 (emphasis in original).  It also noted that “both the underlying complaint and the insurance policy should be liberally construed in favor of the insured . . . .” Id. The court, relying on the duty-to-defend standard and other precedent, held that “[w]e agree with the trial court’s analysis that plaintiffs’ prayer for ‘other relief’ in the underlying lawsuit establishes it as a suit for ‘damages’ and one ‘seeking damages’ which are to be covered under the language of the policies issued by Country Mutual.” Id. at 4 (citing, among others, B.H. Smith, Inc. v. Zurich Ins. Co., 676 N.E.2d 221, 224 (Ill. App. 1996) (Illinois court applying New York law held underlying complaint sought more than just injunctive relief in part because “the complaint also prays for ‘such other and further relief as [the] Court may deem just and proper.’”).

Many courts have held that an allegation of traditional money damages is not required to trigger coverage under a liability insurance policy, so that aspect of Bible Pork is not new. Bible Pork simply reinforces broad duty-to-defend legal standards holding that insurance carriers are required to defend any and all underlying lawsuits that are potentially covered under an insurance policy.   This is entirely consistent with the Court’s ruling that boilerplate “other relief” demands are sufficient to trigger the duty to defend.

Conclusion

Unfortunately, when evaluating claims, many insurers fail to embrace the full scope of their duty to defend. Wrongful denials are common, but they can be remedied.  When seeking a defense from an insurance company, the underlying complaint against the policyholder should be carefully and thoroughly analyzed by experienced coverage counsel to see if any allegation could possibly trigger coverage.  Because the duty-to-defend standard is so broad, policyholders can obtain a defense even if boilerplate allegations potentially bring a claim within coverage.

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