Choice of Law Admission of Extrinsic Evidence Insurer Allocation Pre-Tender FeesStatute of Limitations
Most significant contactsFacts known to the insurerIf one claim is potentially covered, must defend entire suitRecoverable6 years
Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 669 (Mass. 1985)Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 545 N.E.2d 1156, 1158 (Mass. 1989)
Freedman v. United States Liability Ins. Co., 82 Mass.App.Ct. 331 (2012) (“If the allegations in the complaint and other extrinsic facts are ‘reasonably susceptible of an interpretation that they state or adumbrate a claim covered by the policy terms,” the duty to defend arises.” (Citation omitted). “See Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 318, 458 N.E.2d 338 (1983) (underlying complaint, even with general allegations, need only demonstrate a possibility that the liability claim falls within the insurance coverage.”) [Citing Gray v. Zurich Ins. Co., 65 Cal.2d 263, 274-277 (1966)]. To support the proposition that facts that reveal that “the complaint could be fairly amended to state a covered liability” can reveal that a defense is due, Scottsdale Ins. Co. v. MV Transportation, 36 Cal.4th 643, 31 Ca.Rptr.3d 147, 115 P. 3d 460, 466 (2005) cites Gray v. Zurich Ins. Co., 65 Cal.2d at 277 (“In the instant case the complaint itself, as well as the facts known to the insurer, sufficiently apprised the insurer of these possibilities; hence we need not set out when and upon what other occasions the duty of the insurer to ascertain such possibilities otherwise arises. Jones' complaint clearly presented the possibility that he might obtain damages that were covered by the indemnity provisions of the policy.”).
American Policyholders Ins. Co. v. Nyacol Prods., 1996 WL 1186779, at *2 (Mass. Super. Ct. Jan. 29, 1996)Pacific Ins. Co. v. Eaton Vance Mgmt., 260 F. Supp. 2d 334, 344 (D. Mass. 2003)(Mass. Gen. Laws ch. 260 § 2)
Pre-Judgment Interest Late Notice Public Policy Bar Independent CounselAtty's Fees/Decl. Relief Action
12%Notice-prejudiceBar to indemnity and defenseMay choose own counselRecoverable
(Mass. Gen. Laws ch. 231, § 6C)Employers’ Liab. Assur. Corp. v. Hoechst Celanese Corp.,, 684 N.E.2d 600, 605, 609 (Mass. App. Ct. 1997)
Aquino v. Pacesetter Adjustment Co., 416 F. Supp. 2d 181, 196 (D. Mass. 2005)
Boston Housing Auth. v. Atlanta Int'l Ins. Co., 781 F. Supp. 80, 83 (D. Mass. 1992)Magoun v. Liberty Mut. Ins. Co., 195 N.E.2d 514, 519 (Mass. 1964)Preferred Mut. Ins. Co. v. Gamache, 686 N.E.2d 989 (Mass. 1997)
Safety Ins. Co. v. Day, 836 N.E.2d 339, 347 (Mass. App. Ct. 2005)