Use of Extrinsic Evidence in Determining an Insurer’s Duty to Defend

An insurer’s duty to defend is typically determined by the allegations of the complaint against the policyholder, regardless of the truthfulness or accuracy of such allegations. However, in some jurisdiction, courts will allow parties to rely upon information found outside of the com- plaint to determine whether a duty to defend is owed. This information is known as “extrinsic evidence.” Policyholders may seek to provide extrinsic evidence to establish a duty to defend, where the facts of the complaint are insufficient to trigger the obligation. Conversely, insurers may seek to introduce extrinsic evidence in order to negate any duty to defend. The jurisdictions vary as to whether extrinsic evidence is permitted. Some courts allow only a policyholder (but not an insurer)to rely upon extrinsic evidence. Other courts allow either party to use such information, while others do not permit the use of extrinsic evidence at all.

This survey is intended to examine the use of extrinsic evidence in determining the duty to defend across the 50 states.

The map on the following page identifies how each state has assessed the use of extrinsic evidence in duty to defend disputes. Dark blue signals that the state is beneficial to the policyholder, in that extrinsic evidence is allowed to establish coverage but not to negate coverage. Yellow alerts the policyholder to have caution; the state may allow both the insured and the insurer to use extrinsic evidence or the state’s position may be unclear. Red warns the policyholder that extrinsic evidence is not allowed to establish the duty to defend, or can only be used by an insurer to negate coverage.