March 7, 2019
N.E.3d 614] CIVIL ACTION commenced in the Superior Court
Department on December 7, 2012. The case was heard by Joshua
I. Wall, J., and motions to amend the judgment were
considered by him.
E. Riordan, III, Concord, for the plaintiff.
G. Hermes (Kara A. Loridas also present), Boston, for the
Vuono, Ditkoff, & Wendlandt, JJ.
insurance coverage dispute principally presents the question
whether a supplementary payment provision of an insurance
policy, requiring the insurer to pay "costs taxed"
against an insured, extends to attorney’s fees and expert
fees and expenses awarded against the insured, pursuant to G.
L. c. 93A, � 9. We hold that it does not.
plaintiff, Alex Styller, brought this declaratory judgment
action against the defendant, National Fire & Marine
Insurance Company (National Fire or insurer), as the assignee
of rights of the insured, FCMNH, Inc. (FCMNH or insured),
under the insurance policy between FCMNH and the insurer
(policy), relating to the underlying action described in more
detail infra . Briefly, the underlying action stems
from demolition and reconstruction work FCMNH performed on
Styller’s house. Styller alleged that FCMNH performed the
work negligently. FCMNH was insured by National Fire, which
assumed FCMNH’s defense. Styller prevailed, and National Fire
denied coverage under the insurance policy. In a subsequent
settlement agreement between FCMNH and Styller, FCMNH
assigned its rights against National Fire to Styller. In the
present insurance coverage suit, Styller sought an order
requiring National Fire to indemnify him (as FCMNH’s
assignee) for the judgment he obtained against FCMNH.
The underlying action.
2004, Styller entered into a construction contract with FCMNH
to demolish and reconstruct his house. The relationship
soured, and Styller withheld payment. Ultimately, FCMNH
commenced the underlying action in Superior Court against
Styller for, among other things, breach of contract. Styller
counterclaimed, asserting breach of contract, negligence, and
violations of G. L. [128 N.E.3d 615] c. 142A and G. L. c.
93A. Styller’s counterclaims for damage caused by FCMNH’s
allegedly defective work and violations of G. L. c. 93A and
G. L. c. 142A did not fall within the coverage provided by
the policy. Nonetheless, because Styller also asserted
counterclaims for property damage apart from FCMNH’s
defective work, the insurer’s duty to defend was triggered.
FCMNH notified the insurer of Styller’s counterclaims, the
insurer assumed the defense, subject to a reservation of
rights. Although the insurer initially took the position that
it would not be responsible for any fees and expenses
incurred prosecuting FCMNH’s affirmative claims against
Styller, the insurer offered to have its counsel manage the
whole case for FCMNH, including FCMNH’s affirmative claims,
and to waive all claims for reimbursement of expenses
associated with the case. FCMNH agreed, and the insurer
assumed control of the entire case on behalf of FCMNH.
case was tried to a jury, which found in favor of Styller on
FCMNH’s claims. With regard to Styller’s counterclaims, the
jury found by way of answers to special questions that
Styller did not suffer any damage to property other than
FCMNH’s defective work. The jury further found that FCMNH was
not liable for breach of contract, but was negligent in
performing the work, and
awarded Styller $ 85,409.80 in damages. The jury also found
that Styller was comparatively negligent in the amount of
the jury trial, the Superior Court judge conducted a bench
trial on Styller’s claim that FCMNH committed a deceptive and
unfair trade practice as a contractor in violation of G. L.
c. 93A (through violations of G. L. c. 142A ), which as
set forth supra was not a claim covered under the
policy. The judge determined that G. L. c.
142A applied to the contract between Styller ...