Heard: March 7, 2019.
action commenced in the Superior Court Department on December
case was heard by Joshua I. Wall, J., and motions to amend
the judgment were considered by him.
E. Riordan, III, for the plaintiff.
G. Hermes (Kara A. Loridas also present) for the defendant.
Present: 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
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. 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 twenty-seven
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 and FCMNH, FCMNH
violated G. L. c. 142A, and the violation entitled Styller to
recover under G. L. c. 93A.
judge awarded Styller the same amount in damages ($85,
409.80) on the G. L. c. 93A claim as the jury had awarded on
the negligence claim. The judge also awarded attorney's
fees and expert fees and expenses to Styller under G. L. c.
93A in the amount of $105, 374.70 (fee award). No postjudgment
costs were allowed. FCMNH appealed, and this court affirmed.
FCMNH, Inc. v. Styller, 77
Mass.App.Ct. 1109 (2010) . Following the appeal, the insurer
informed FCMNH that it was declining coverage under the
policy because the jury found FCMNH liable only for damage to
FCMNH's own work, which was property damage excluded from
the policy's coverage. See note 4, infra.
Assignment and coverage lawsuit.
years later, FCMNH settled with Styller. In connection with
the settlement, FCMNH assigned to Styller its rights relating
to the underlying action under the policy.
then filed this suit against the insurer, seeking a
declaratory judgment under G. L. c. 231A, § 1, that the
insurer must indemnify FCMNH (and by assignment, Styller) for
the full amount of the judgment obtained in the underlying
action. He also asserted a claim against the insurer under G.
L. c. 93A (alleging violations of G. L. c. 176D) in view of
the insurer's refusal to pay Styller prior to the
institution of this coverage lawsuit. The ...