The Duty to Defend and Potentiality

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In the leading case of Gray v. Zurich Ins. Co. 65 Cal.2d 263, 54 Cal. Rptr. 104 (1966) the Supreme Court of California set the basic rule followed in most jurisdictions for deciding whether an insurer owes a duty to defend or not. 

The insured in Gray was alleged to have assaulted and battered the plaintiff. The policy, and the statutes of California, prohibited indemnity for an intentional act of an insured. Assault and battery are, by definition, intentional acts, so the insurer argued that it owed no defense.

The potentiality concept has expanded the exposure of insurers insuring personal and commercial risks. Even though a policy excludes liability arising from violations of law, there is the potentiality that the jury would find there was no violation of law and that the policy provided coverage.