The Impact Of Evidence Extrinsic To The Complaint In Determining An Insurer’s Duty To Defend


Under Washington law, there are two exceptions to the rule that the duty to defend must be determined only from the complaint, and both the exceptions favor the insured. If coverage is not clear from the face of the complaint but may exist, the insurer must investigate the claim and give the insured the benefit of the doubt in determining whether the insurer has an obligation to defend. See Ins. Co. of N. Am. v. Ins. Co. of Pa., 17 Wn.App. 331, 334 (1977). Similarly, facts outside the complaint may be considered if “ ‘(a) the allegations are in conflict with facts known to or readily ascertainable by the insurer or (b) the allegations of the complaint are ambiguous or inadequate.’ ” Atl. Mut. Ins. Co. v. Roffe, Inc., 73 Wn.App. 858, 862 (1994) (quoting E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 908 (1986). An insurer has an obligation to give the rights of the insured the same consideration that it gives to its own monetary interests. See Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 388 (1986). Put simply, an insurer may not rely on facts extrinsic to the complaint in order to deny its duty to defend where the complaint can be interpreted as triggering the duty to defend. If in doubt, the insurer may file a declaratory action. See Truck Ins. Exchange v. Vanport Homes, Inc., 147 Wn.2d 751, 761 (2002).

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