The insurer’s duty to defend its insured has recently been a popular topic for legal commentators in this and other publications. Following the June 2013 Court of Appeals decision in K2 Investment Group v. American Guarantee & Liability Ins., 21 NY3d 384, 971 NYS2d 229 (2013), in which the court held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify its insured for a judgment against him,” numerous articles were written about this important and controversial decision, its meaning and its effects.1
This article will not be another in that series because on Sept. 3, 2013, the Court of Appeals, in a fairly unusual move, granted reargument of its earlier decision, and set the case down “for a future session of this Court.” 2013 N.Y. Slip Op. 84038, 2013 WL 471158 (2013). It thus can safely be said that we have not heard the last of K2, and that further discussion of the existing opinion at this point would be academic, and quite possibly, moot.
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