Duty to Defend

Courts that have interpreted indemnification provisions that included the duty to defend have explained that this means the consultant must defend its client (pay legal fees on behalf of its client) as the litigation is ongoing — and that it cannot wait until the conclusion of the litigation to determine whether it is found to have negligently performed services and therefore owe a separate duty to indemnify. The courts see the duty to defend and the duty to indemnify as two separate and unique duties.


ConstructionRisk articles relating to Duty to Defend are below.

Design Professionals Should not Agree to Defend Clients

There is no common law duty of a consultant to defend its client against third party actions. That duty can only arise as a result of a contractually liability created through the indemnification clause of the contract. Since this is a contractual liability, it is...