Where an insurance company successfully brought a declaratory judgment action establishing another insurer's duty to defend a policyholder, the successful insurer is not entitled to an award of the counsel fees incurred in prosecuting the declaratory judgment action.
"It is well settled that an insured is entitled to recover reasonable attorney's fees and expenses incurred in successfully establishing the insurer's duty to defend under the terms of the policy. See Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 98 (1997) (Gamache). What happens when the party incurring attorney's fees and expenses to establish the insurer's obligation to defend is not the insured but a different insurer that has defended and provided coverage to the insured? That is the question raised in this case. We answer that the exception to the American Rule in Gamache and its progeny does not extend to allow the prevailing insurer recovery of its attorney's fees associated with an action brought to establish the defense and coverage responsibility of another insurer.
"The policy underlying the Gamache exception to the American Rule is not to punish wrongdoers or to reward those who act responsibly. Rather, it is a policy designed to protect the insured's right to receive the full benefit of its liability insurance contract. Through the successful declaratory judgment action, [John T.] Callahan [& Sons, Inc.] did receive that benefit at no cost to itself, thanks to Zurich [American Insurance Company]. But Zurich also received a separate and very real benefit from the action: the requirement that Worcester [Insurance Company] reimburse Zurich for one-half the settlement amount and one-half the attorney's fees. Application of the American Rule to Zurich in this context deprives the insured, Callahan, of nothing, and comports with established practice."
John T. Callahan & Sons, Inc., et al. v. Worcester Insurance Co. (Lawyers Weekly No. 10-046- 09) (8 pages) (Botsford, J.) (SJC) Case heard by Chernoff, J., on motions for summary judgment, and a motion for entry of final judgment and award of attorney's fees also heard by him. Aaron R. White, of Boyle, Morrissey & Campo, for the plaintiffs; David F. Hassett and Scott T. Ober, both of Hassett & Donnelly, for the defendant (Docket No. SJC-10180) (March 19, 2009).
Paul S. Rainville successfully defended a case involving a slip and fall on ice at a gas station. The plaintiff sustained multiple fractures to his leg that required surgical repair and left the plaintiff with a partial disability. The plaintiff alleged medical bills of approximately $33,500.00 and a loss of earning capacity in excess of $100,000.00. We asserted that the accident was a result of the plaintiff’s own negligence and that there was no evidence that the defendants had notice of the alleged accumulation of ice.
Scott T. Ober was victorious following a two-week mold trial in Superior Court. The plaintiffs alleged that work performed by our client, a mason, and the co-defendant, a plumber, caused a flood in the basement of their home. The plaintiffs claimed that mold developed as a result of this water intrusion and that they suffered respiratory difficulties and cognitive impairment due to their exposure to mold. Lost earning capacity in the amount of $1,500,000.00 was further alleged. The jury returned a verdict after two hours of deliberations, finding no negligence and no breach of contract by our client.
Matthew G. Lindberg successfully defended a snow removal contractor in a Superior Court jury trial stemming from a slip and fall. The plaintiff sustained a four-part fracture to his shoulder when he slipped and fell in a snowy parking lot. We defended the case on the grounds that the plaintiff fell on a natural accumulation and that there was no evidence that our client was negligent in the manner in which it performed snow removal.
David F. Hassett prevailed on a Superior Court jury trial in a case brought by a state trooper who fell off of stairs at our clients’ rental property during the course of a drug raid. The plaintiff sustained a back injury and was out of work for approximately one year, alleging $90,000.00 in lost wages and $10,000.00 in medical bills. John M. Dealy assisted in the handling of the case and the preparation of the case for trial.
Paul S. Rainville won a Superior Court case filed against our client, a rental property owner, following a four-day jury trial. The plaintiff alleged numerous injuries, including a herniated disc, after a five-foot piece of siding purportedly fell off of our client’s building from a second floor stairway enclosure and struck the plaintiff on her head and neck. The jury returned a verdict after deliberating for ninety minutes, finding no negligence on the part of our client.
Gerard T. Donnelly argued and prevailed on a Motion for Summary Judgment prepared by John M. Dealy on a case involving a fall down steps. The plaintiff alleged significant injuries that required multiple surgeries and resulted in a permanent impairment. Upon reporting for the first day of trial, we were instructed by the court to submit a Motion for Summary Judgment. The defendants were granted summary judgment due to the absence of evidence of ownership or control of the area of the plaintiff’s fall and because the condition of the steps was open and obvious.
Matthew G. Lindberg was awarded Summary Judgment in a product liability action stemming from a crane accident filed in Superior Court. The plaintiff, when struck by the crane, sustained serious injuries including multiple fractures that required surgeries and the installation of hardware. The court agreed that due to the passage of time and the accidental disposal of the subject part, summary judgment should enter in favor of our client, the manufacturer of the crane, which fabricated some of its component parts, but not the one that was alleged to have failed.
Matthew G. Lindberg prevailed on a Motion for Summary Judgment in an asbestos case pending in Superior Court in which the plaintiff’s decedent died from malignant mesothelioma. We successfully argued that there was insufficient evidence to establish liability on the part of our client, whom the plaintiff had named as a supplier of asbestos-containing truck parts used at the decedent’s place of employment.
Courtney E. Mayo prepared a Motion to Dismiss that was presented by Paul S. Rainville and allowed in open court. Our client, a home improvement contractor and the third-party defendant, was hired by the defendant/third-party plaintiff homeowner in 2001 to perform certain work at the homeowner’s residence. The plaintiff sustained an injury at the residence in 2002 and thereafter instituted a negligence action in Superior Court, alleging special damages in excess of $32,000. The homeowner brought a third-party action against our client in 2008. We successfully moved to dismiss the third-party complaint on the grounds that it was untimely pursuant to the statute of repose.
