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United States Fire Insurance Co. v. Worcester Insurance Co.1/20/2005
its policy limit. Although those petitions included a deduction for the payment of counsel fees to Worcester, Worcester was not a signatory to these petitions for settlement. On the other hand, the releases obtained by Worcester from the claimants in exchange for the settlement payments make no reference to counsel fees.
Suffice it to say, we see nothing in these arguments that leads us to conclude that the judge was in error in denying US Fire's postjudgment motions.
Proceeding on the premise that Worcester was in breach of its duty to defend, US Fire's final argument is that it is entitled to recover from Worcester the attorney's fees that it incurred in defending Youngblood against the remainder of St. Paul's claim. See Preferred Mutual Ins. Co. v. Gamache, 426 Mass. 93, 98 (1997), where the court held that under the policy there in issue, the insured was entitled to the reasonable attorney's fees and expenses "incurred in successfully establishing the insurer's duty to defend under the policy." See also Rubenstein v. Royal Ins. Co. of America, 429 Mass. 355, 356-360 (1999); Hanover Ins. Co. v. Golden, 436 Mass. 584, 586-588 (2002). Relying on Preferred Mutual, Rubenstein, and Golden, US Fire argues that because Youngblood could have recovered these fees against Worcester, it can stand in Youngblood's shoes and recover its fees under Condition I of its policy which is entitled "Transfer of Rights of Recovery Against Others to Us."
Because we have concluded that Worcester was not in breach of its duty to defend, the premise of US Fire's argument on this contention fails.
Judgment affirmed.
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