No Duty to Defend Under CGL Policy, Where Insured “Willfully Disregarded” Worksite Risk

In Perfect Fence Co v Accident Fund Nat’l Ins Co, unpublished opinion per curiam of the Court of Appeals, issued June 11, 2020 (Docket No. 349114), the panel considered both the duty to defend and the duty to indemnify under a commercial general liability (CGL) policy.

Although there was initially a duty to defend the injured worker’s negligence action, after that claim was dismissed the worker amended his complaint to assert an intentional tort claim.

The insured had no duty to defend or indemnify Perfect Fence for that claim because it was not based on an “accident,” Radenbaugh v Farm Bureau, 240 Mich App 134, 147 (2000), and because exclusions applied.

The “duty to defend is broader than the duty to indemnify”; if the “allegations of a third party against the policyholder even arguably come within the policy coverage, the insurer must provide a defense.” American Bumper & Mfg Co v Hartford Fire Ins Co, 452 Mich 440, 450 (1996). However, if “the policy does not apply, there is no duty to defend.” Id.

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