INSURANCE DEFENSE: Superior Court holds that snow removal contractor had duty to defend, but that issue of fact exists with regard to duty to indemnify

In a case arising out of the slip and fall on snow and ice, the plaintiff sued the lessor of the property and a snow plow contractor retained by the lessor.  The lessor then asserted a crossclaim against the snow plow contractor seeking defense and indemnification with regard to the plaintiff’s claims.  The contract provided in relevant part that the snow plow contractor would “to the fullest extent permitted by law …defend, hold harmless and indemnify [the lessor] from and against all claims, actions, liabilities, damages, losses … arising out of or resulting from the performance of services at the property”.  The court holds that the issue of whether a duty to defend exists is determined based on whether the allegations in the plaintiff’s Complaint bring the plaintiff’s injury within the coverage and scope of the agreement.  In the case before it, the court concludes that based on the allegations of the Complaint, a duty to defend was triggered.  With regard to the duty to indemnify, the court applied insurance law precedent, which holds that the duty to indemnify is narrower than the duty to defend.  Unlike the duty to defend, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered.  The court finds an issue of fact as to whether there was negligence under the terms of the snow removal contract and the facts that might be established at trial and therefore denies the crossclaim plaintiff’s Motion for Summary Judgment with regard to any duty to indemnify that might exist.

Rivera v. DIV Glastonbury, LLC, CV14-6007068, 2016 WL 1657323 (04/06/16)