Do Attorney’s Fees, Or Generic Demands For “Any Other Relief That The Court Deems Just,” Qualify As “Damages” -- To Trigger A Defense?
You’ve seen this situation. You are reading a complaint and it seeks only injunctive and/or declaratory relief -- and not damages. Therefore, no damages equals no duty to defend. But wait. You reach the very end of the complaint, the last page, and there it is -- a demand for attorney’s fees or the amorphous “any other further relief that the court deems just” (or something along those lines). Now what? Do these requests for relief qualify as “damages,” thereby giving rise to a duty to defend? They do not, said the Ninth Circuit in Travelers Property Casualty Company v. KFX Medical Corp., No. 13-17301 (9th Cir. Jan. 8, 2016).

Washington Supreme Court Addresses “Use Of An Auto”
The Washington Supreme Court in Kroeber v. Geico, No. 91846-5 (Wash. Jan. 14, 2016) answered this Certified Question from the Western District of Washington: “When a driver drives to a location, momentarily stops or slows his vehicle, intentionally fires a gun, his bullet hits a pedestrian, and the driver drives away immediately thereafter, does this driver’s liability to this pedestrian for the injuries he causes ‘arise out of’ the driver’s use of his vehicle, for the purposes of underinsured motorist insurance coverage?”

In fact, the court didn’t actually answer the question, but, rather, provided the test for the trial court: “An injury ‘arises out of’ vehicle use if some causal connection exists between a condition of, an attachment to, or some aspect of the vehicle’s use and the resulting injury. Conversely, an injury does not ‘arise out of’ vehicle use when the vehicle is merely the situs of the accident.” [The case involved underinsured motorist insurance coverage. But the same test is surely applicable to the “use of an auto” issue under auto liability, homeowners and CGL policies.]