A couple of days ago I wrote about Manganella v. Evanston Ins. Co., 2011 WL 5118898 (D. Mass.), in which Evanston Insurance Company denied coverage for a sexual harassment claim because the misconduct began before the policy period.
At issue was the MCAD claim of Burgess against her employer, Jasmine Company, alleging that she had been harassed by Luciano Manganella since she began her employment a couple of years before the Evanston policy went into effect. At a deposition she clarified that although Manganella had made inappropriate comments prior to the policy period, she had not felt physically or emotionally threatened by him until after the policy period began.
Evanston made an argument that I don't quite understand that it was entitled to rely on readily knowable facts outside the complaint to deny coverage. (I don't understand it because the black letter law it cites states that facts outside the complaint may be used to trigger the duty to defend, not the opposite; and because the facts outside the complaint appear to trigger coverage rather than show no coverage.)
The court rejected Evanston's argument. It went on to hold that because it had breached its duty to defend Jasmine, Evanston is liable for the costs of settlement reached with Burgess. Although a breach of the duty to defend does not provide an automatic right to indemnity, an insurer that has wrongfully declined to defend a claim has the burden of proving that the claim was not within the coverage of the policy. "Because the evidence on this later issue is in equipoise, Evanston has not met its burden of showing coverage did not attach."