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Massachusetts
CHOICE OF FORUM
| Choice of Law | Admission of Extrinsic Evidence | Insurer Allocation | Pre-Tender Fees | Statute of Limitations |
|---|---|---|---|---|
| Most significant contacts | Facts known to the insurer | If one claim is potentially covered, must defend entire suit | Recoverable | 6 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 Counsel | Atty's Fees/Decl. Relief Action |
|---|---|---|---|---|
| 12% | Notice-prejudice | Bar to indemnity and defense | May choose own counsel | Recoverable |
| (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) |