Can Defense Counsel Move for Summary Judgment if the Result Would be That Only Non-covered Claims Remain?
Assume a claim is asserted against the insured that involves both covered and non-covered claims. In Alabama, the insurer owes a duty to defend all claims as long as there remain potentially covered claims. However, if covered claims are later dismissed, the insurer may withdraw from the insured’s defense if it has reserved its right to do so.20 One question to ponder is how should defense counsel proceed if summary judgment is appropriate only as to covered claims? The answer depends on the facts of each case. A summary judgment, while benefiting the insured as to liability, would also leave it without a defense to the remaining claims. Considering the potential ramifications, defense counsel should fully disclose to the insured the coverage risks associated with a summary judgment motion under these circumstances. In some cases, it could be more beneficial to the insured not to file a summary judgment motion if a positive ruling leaves the insured without a defense from the insurer.
