Continued from Part 1.
A duty to defend another is a separate part of an indemnity provision. It requires the person giving the indemnity (the indemnitor) to pay for an attorney to defend the person receiving the indemnity (the indemnitee). A defense provision is important because of the cost of litigating a lawsuit. Sometimes the ultimate settlement of a matter is less costly than the overall expense involved in litigating the case.
The Timing of the Duty to Defend is Critical
When negotiating a defense obligation, it is important to specify when the duty arises. As the party receiving the promise to defend, the indemnitee wants the duty to defend to arise at the inception of any claim or even with the threat of litigation. The indemnitee also wants the defense to apply as broadly as possible, not just to a narrow set of circumstances. The indemnitor, on the other hand, may want the duty to defend to arise only in certain circumstances.
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