In Allstate Vehicle and Property Insurance Co. v. Frank, 687 F.Supp.3d 1033, (D. Mont., 2023), the Federal Court held, applying Montana law, that a homeowner and umbrella insurer was required to defend its insured, a police officer, when the police officer was sued over an excessive force incident. Montana law already had held that an insured does not intend to cause harm if the insured injures another person in self-defense. Under the case facts here, the insured raised self defense as an affirmative defense in the underlying lawsuit. By raising self defense in the Answer as an affirmative defense, the insurer was placed on notice that the insurer’s coverage defense of intentional misconduct was abated, at least for purposes of the duty to defend. Additionally, the insurer was on notice that its insured asserted self-defense, notwithstanding the affirmative defense. Because Montana requires insurers to consider extrinsic evidence when assessing whether a potential for coverage exists, the Court found that the insurer was on notice of the insured’s claim of self-defense.
