duty of care is a threshold requirement. Domagala, 805 N.W.2d at 22. A. RDI argues, and the district court agreed, that Integrity was vicariously liable for the conduct of the attorney Integrity appointed to represent RDI. The question of whether an attorney appointed to represent an insured to defend a claim is an agent for the insurer is one that has divided courts, and often turns on specific facts. Compare Smoot v. State Farm Mut. Auto. Ins. Co., 299 F.2d 525, 530 (5th Cir.1962) (applying Georgia law and stating that “[t]hose whom the insurer selects to execute its promises, whether attorneys, physicians, no less than company-employed adjusters, are its agents for whom it has the customary legal liability”), and Stumpf v. Cont’l Cas. Co., 102 Or.App. 302, 794 P.2d 1228, 1232 (1990) (<HOLDING>), with Ingersoll-Rand Equip. Corp. v. Transp.
holding that a hospital was not vicariously liable for sexual abuse by an orderly holding that in waiving a latenotiee defense insurer waived that defense as to any claim arising out of the occurrence in question holding that defense counsel was not constitutionally ineffective for presenting a diminished capacity defense as opposed to a defense of legal insanity holding that insurer must pay for defense after it declined to provide a defense and coverage was found to exist holding insurer vicariously liable for defense counsels negligent defense of a medical malpractice claim