(R. 7 at ¶ 3 (emphasis added).) Accordingly, contrary to Brickman’s assertion, the holding in Cooper Labs is simply not controlling here, because it is based on a policy provision that is readily distinguishable from paragraph 3 in the Axis policy. Moreover, we find that under the plain language of paragraph 3, Axis did not have a duty to defend Brickman until the underlying insurance, i.e., the ACE policy, had “been exhausted by the payment of damages.” (Id.) In this case, ACE paid no damages until final settlement of Peisel’s claims against Brickman in September 2008. Accordingly, no duty to defend arose under paragraph 3 before September of 2008, at the earliest. Cf. Virginia Sur. Ins. Co. v. RSUI Indem. Co., Civ. A. No. 09-928, 2009 WL 4282198, at *4, *7 (D.Ariz. Nov. 25, 2009) (<HOLDING>) Furthermore, there is no record evidence that
holding the obligation to defend does not arise until the insurer is presented with a complaint holding insurers duty to defend is determined by allegations in the petition holding that an insurer had a duty to defend the insured until it could establish that those claims were not supported by the facts holding that where excess policy provided that duty to defend did not arise until the underlying insurance was exhausted by payments of judgments settlements and any cost or expense subject to such limit excess insurers duty to defend did not arise until the payment of the settlement holding that insurer was liable for amount in excess of policy limits because it breached its duty to defend