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Azcon Corp. v. Odyssey Re Limited12/7/2004
l Union subject to rights resolved in the declaratory-judgment action, it did not breach its duty to defend. But the district court found that appellant breached its duty to defend stating, that because appellant "has not paid its share of the defense costs, a breach of its duty to defend has been shown. Therefore, [respondents] are entitled to sue for the attorney fees incurred necessary to enforce that obligation."
We conclude that the district court did not abuse its discretion in finding that appellant breached its duty to defend Azcon. The record shows that (1) appellant initially committed a total breach of its duty to defend, as shown by appellant's denial of any such duty in its answer to the declaratory-judgment action; (2) appellant made only conditional offers to participate in Azcon's defense; and (3) appellant ultimately withdrew any offers to participate in Azcon's defense.
Thus, on this record, we conclude that it was within the district court's discretion to award attorney fees based on its finding that appellant breached its duty to defend.
Affirmed.
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