CPS

Plaintiff and appellant Construction Protective Services, Inc. (CPS) appeals an order of dismissal in favor of defendant and respondent TIG Specialty Insurance Company (TIG, or the insurer) following the sustaining without leave to amend of a demurrer interposed by TIG to CPS's original complaint. [1]

The essential issue presented is whether a cause of action is stated against the insurer for a failure to defend.

In the underlying action, CPS sued SHC/Mark Diversified (SHC), the general contractor, for payment for security services it rendered at a construction site. [2] In its answer, SHC pled as an offset that CPS's failure to perform the contract had resulted in property damage to the project. CPS tendered the defense of the affirmative defense to TIG, which declined the matter.

CPS then brought this action against TIG. We conclude the instant complaint adequately pleads a breach of TIG's duty to defend a suit for damages against its insured. In the underlying action, CPS and SHC were parties to a suit in that they were "involved in actual court proceedings initiated by the filing of a complaint. (Black's Law Diet. (6th ed.1990) p. 1434, col. 1....)" (…