Does the term "loss" include defense costs?

California, United States of America


The following excerpt is from Scottsdale Ins. v. National Union Fire Ins., 116 Cal.Rptr.2d 174, 95 Cal.App.4th 891 (Cal. App. 2002):

We may assume, without deciding, that "loss" as used in appellants' policies does include defense costs. Their "other insurance" clauses, however, apply only when there is other insurance "covering a loss also covered hereunder." (Italics added.) The policies set forth two distinct insuring agreements. The first, entitled "COVERAGE," provides: "We will pay on behalf of the Insured that portion of the ultimate net loss . . . which the insured shall become legally obligated to pay as compensatory damages . . . because of Personal Injury, Property Damage or Advertising Liability, caused by an occurrence to which this insurance applies. . . ." (Per American policy; "will become legally obligated to pay" in National policy.) The second, entitled "DEFENSE," provides: "We will defend any suit against the insured alleging liability insured under the provisions of this policy and seeking recovery for damages on account thereof. . . ." Thus, a "covered" loss is one within the insuring agreement entitled "COVERAGE"a loss for which the insured is entitled to indemnity. Even assuming defense costs are a "loss," they are not a "covered loss." (Cf. Jarrett v. Allstate Ins. Co. (1962) 209 Cal.App.2d 804, 811-812, 26 Cal.Rptr. 231 ["loss payable" meant loss as capped by policy limits, not total loss suffered by insured].)

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