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Aetna Insurance Co. v. Aaron12/4/1996
laim regarding the costs of investigation. We observe, however, that the investigation apparently lasted years and was largely unsuccessful. The record does not indicate who investigated or why it took so long to identify the source of the problem. On this record, it would appear that the Council would not be entitled to reimbursement for the costs of investigation. In the absence of Aaron's obligation to reimburse the Council, the insurer would not be liable.
In contrast, the rule is clear that if an insured must resort to litigation to force its insurer to perform its duty to defend the insured and provide liability coverage, then the insured may recover the fees, costs and expenses of the litigation. Nolt v. USF&G; 329 Md. 52, 617 A.2d 578 (1993); Campbell v. Allstate Ins., 96 Md. App. 277, 624 A.2d 1310 (1993) rev'd. on other grounds, 334 Md. 381, 639 A.2d 652 (1994); Continental Casualty Co. v. Board. of Educ., 302 Md. 516, 489 A.2d 536 (1985); Bankers & Shippers Ins. Co. v. Electro Enter., 287 Md. 641, 415 A.2d 278 (1980); Cohen v. American Home Assur. Co., 255 Md. 334, 258 A.2d 225 (1969). As we have determined that the trial court correctly found that Aetna had a duty to defend Aaron, the trial court also properly directed Aetna to pay Aaron's fees, costs, and expenses in connection with the declaratory judgment action.
Finally, we note that Aetna argues that it has no duty to defend or indemnify Aaron, because the Council incurred the repair expenses in 1993, and Aaron's Policy expired in 1989. Aetna concedes that this argument was not raised below. Therefore, it is not properly before us on appeal, and we decline to consider it. See Md. Rule 8-131(a).
SUMMARY JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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