Insurance Law Hawaii

With Certified Question Answered, Ninth Circuit Finds Insurer Bound by Agent's Certificate of Insurance

    The Ninth Circuit, relying upon the Washington Supreme Court's response to a certified question (prior post here] found that the insurer was bound by the agent's certificate of insurance identifying an additional insured. T-Mobile USA Inc. v. Selective Ins. Co of Am., 787 Fed. Appx. 395 (9th Cir. Dec. 9, 2019). 

    Selective issued a policy to a contractor of T-Mobile Northeast, LLC (T-Mobile NE), a wholly owned subsidiary of T-Mobile USA. The policy included an Additional Insured Endorsement that extended "additional insured" status to any entity which whom the contractor entered a written contract that required the contractor to add that entity as an additional insured under the policy. The endorsement extended coverage to T-Mobile NE but not T-Mobile USA. In 2012, the Vany Dyk Group, Inc. - Selective's authorized agent acting with apparent authority - issued a certificate of insurance (COI) to T-Mobile USA. The COI stated that T-Mobile USA "is included was an additional insured even though it also expressly stated that the COI could not extend or alter the coverage afforded by the policy.

    Under Washington law, an insurer was bound by all acts, contracts, or representations of its agent which were within the scope of the agent's real or apparent authority. But the purpose of a COI was to inform the recipient that insurance had been obtained. Under Washington law, a COI was not the functional equivalent of an insurance policy, and it therefore could not be used to amend, extend, or alter the coverage provisions of a policy. 

    The Ninth Circuit, therefore, certified a question to the Washington Supreme Court, asking whether an insurer bound by representations made by its agent in a COI with respect to a party's status as an additional insured when the certificate included language disclaiming its authority and ability to expand coverage. The Washington Supreme Court responded, "The answer is yes: an insurer is bound by the representation of its agent in those circumstances. Otherwise, an insurance company/s representations would be meaningless and it cold mislead without consequence." 

    Given this response, the Ninth Circuit reversed the district court's orders granting summary judgment and dismissal on the grounds that Selective was bound by the agent's representations that T-Mobiie USA was not an additional insured under the policy. 

Insurer Waives Challenge to Hourly Rates, Ordered to Pay All Defense Costs

    After ignoring a prior order to pay fees, the insurer was ordered again to pay the total fees incurred without challenge to defense counsel's hourly rates. Chelsea Piers, L.P. v. Colony Ins. Co., 2019 N.Y. Misc. LEXIS 6333 (N.Y. Sup. Ct. Nov. 25, 2019).

    Chelsea Piers was an additional insured on policies issued by Colony to EPS Iron Works, Inc. The court previously denied Colony's motion for summary judgment and granted summary judgment to Chelsea Piers, establishing Colony's duty to defend and to reimburse for past defense costs. Colony, however, failed to reimburse Chelsea Piers for its defense costs. 

    Colony did not dispute that the prior order required it to reimburse Chelsea Piers for past defense costs and defense costs going forward. Nor did Colony challenge the reasonableness of the hours and tasks billed by defense counsel. Rather, Colony contested only the reasonableness of Rivkin Radler's (defense counsel) hourly rates. 

    Colony, however, did not move for a reasonableness hearing on the hourly rates. And Colony did not put forth any evidence suggesting that Rivkin Radler's hourly rates were unreasonably high - not merely higher than Colony would prefer to pay. The court determined that Colony was not entitled to disregard a court order from which it never sought to pay. 

    Colony waived any challenge to the reasonableness of Chelsea Piers' defense costs incurred up to the date of this order. Colony was ordered to pay all defense costs that Chelsea Piers had incurred prior to the date of the order, and for which Chelsea Piers had already provided Colony with property documentation. 

Insurer's Attempt to Strike Experts in Collapse Case Fails

    The insurer's efforts to exclude two of the insured's experts in a collapse case were unsuccessful. Hudon Specialty Ins. Co. v. Talex Enterprises, LLC, 2019 U.S. Dist. LEXIS 150148 (S.D. Miss. Sept. 4, 2019).

    The insureds' building collapsed. The remaining portions of the building required immediate stabilization. The insureds hired Mr. Laird, an engineer, to prevent further property destruction. The insured designated Mr. Laird as a non-retained expert for trial. Mr. Laird's report claimed that the collapse was caused because the building had been re-roofed many times without removal of the degraded underlying roofing materials, thereby adding additional weight to the roof structure. 

    The insureds also designated Steve Cox as a non-retained expert. Mr. Cox was an architect who owned property neighboring the building that collapsed. He opined that the building collapsed because of the condition of very old mortar and not because of water standing on the building roof or because of roof repairs. 

    Hudson sought to strike these two experts because their opinions were inconsistent with the admitted facts. A document produced by the insureds stated that a large amount of rainwater had collected on the roof and the weight of the rainfall was the proximate cause of the collapse. Hudson claimed that this statement qualified as a judicial admission, removing the question of causation from contention. The court disagreed that the statement was a judicial admission because it did not form any part of the pleadings. The statement may have been an evidentiary admission that could be controverted or explained by the parties. 

    Hudson also argued that neither expert testified that the mortar decay which alleged caused the collapse was not plainly visible. Therefore, the testimony could not be relevant because the building decay had to hidden from view to trigger the policy. But the determination of whether the policy was triggered would be based on testimony and cross-examination.

    Hudson also sought to strike Mr. Laird because he had been retained to insist the insureds to preserve the property before suit was ever filed. The mere fact that he was retained to provide expert testimony did not make him a "specially employed expert" who was solely retained to provide testimony at trial and was not involved in other ways in the case. Mr. Laird would testify as to the opinion he formed during his employment by the insureds as he worked to stabilize the building. Therefore, he was correctly designated as a non-retained expert.

    Therefore, the expert opinions put forth by the insureds satisfied the Daubert standard and were both relevant and reliable. 

Insurer Must Defend Additional Insured Though Its Insured is a Non-Party

    The plaintiff insurer's motion for partial summary judgment seeking an order that defendant insurer was obligated to defend a non-party as an additional insured was granted. Am Empire Surplus Lines Ins. Co. v. Burlington Ins. Co., 2019 N. Y. Misc. LEXIS 4145 (N. Y. Sup. Ct. July 25, 2019). 

    Quality Building Construction, LLC was the contractor hired to work on exterior facade of a building owned by Central Park West Corporation. The underlying complaint alleged that Quality caused plastic spacers and pedestals used for the penthouse terrace to fall down the roof drain riser. A clog and rainwater backup resulted in water damage to apartment 8A. The resulting damage was allegedly due to the clogged roof drain riser.

    Quality subcontracted the work to Mega State, Inc. The subcontract required Mega to indemnify and hold Quality harmless against claims in connection with Mega's work, as well as name Quality as an additional insured on a primary, non-contributory bases under Mega's CGL policy. Burlington issued a policy to Mega naming Quality as an additional insured. American Empire issued a CGL policy to Quality.

   Quality was sued in the underlying action, but Mega was not.  American Empire tendered a demand for coverage to Mega and Burlington, relying on the agreement between Quality and Mega. Burlington responded that Mega was not liable for the alleged damages. American Empire sued Burlington. Subsequently, Burlington accepted the tender to defend Quality in the underlying action, and reserved rights as to whether Burlington's policy was primary and on the question of indemnification. American Empire agreed to withdraw its suit if Burlington would modify its reservation of rights. Burlington refused.  

    Mega completed its work prior to the date of loss. American Empire contended that Quality was an additional insured and entitled to coverage under the "Completed Operations Endorsement" in the Burlington policy. American Empire argued that additional insured coverage was triggered because there was at least a reasonable possibility that the named insured, Mega, was a proximate cause of the underlying property damage. Further, coverage to Quality as an additional insured under the Burlington policy was primary and non-contributory. 

    Burlington argued the underlying allegations precluded the possibility of coverage. The underlying complaint stated that the property damage was caused by Quality, and there could be no determination that Mega caused the property damage. There was no proof or allegation that Mega was negligent and Mega was not a party to the underlying action. The only evidence that Mega's work caused the damage was an affidavit from Quality's President swearing that Quality did not perform work because it subcontracted the work to Mega. Burlington challenged this affidavit as self-serving and inadmissible on the cross motions for summary judgment. 

    The court ruled that it was irrelevant that Mega was not mentioned in the underlying complaint. Burlington had the subcontract between Mega and Quality, so it had actual knowledge of facts establishing a reasonable possibility that the complaint was within its indemnification policy terms and that its coverage was primary and non-contributory. Burlington was liable to reimburse American Empire for defense costs, with interest because of the language of the policies and the sub contract between Quality and Mega. 

Care, Custody and Control Exclusion Does Not Bar Coverage For Alleged Construction Defects

    Reversing the lower court, the California Court of Appeal found that the care, custody and control exclusion was not applicable to bar coverage for the general contractor as the additional insured under the subcontractor's policy. McMillin Homes Constr. v. Nat'l Fire & Marine Ins. Co., 2019 Cal. App. LEXIS 514 (Cal. Ct. App. June 5, 2019).

    McMillian was the developer and general contractor on the housing project. It hired Martin Roofing Company, Inc. to do the roofing job for the project. Martin secured a general liability policy from National Fire that named McMillian as an additional insured. By endorsement, the policy excluded coverage for damage to property in McMillin's "care, custody, or control" (CCC exclusion).

    In 2014, homeowners sued McMillin for construction defects. The complaint alleged water intrusion and damage caused by roofing defects. McMillin tendered its defense to National Fire. Coverage was refused. Suit was filed and the trial court entered judgment in favor of National Fire. 

    The Court of Appeal reversed. The policy provided coverage to McMillin as an "additional insured" with respect to liability arising out of:

A. Martin's ongoing operations performed for McMillin and

B. Acts or omissions of McMillin in connection with its general supervision of such operations.

    National Fire argued that the CCC exclusion in the additional insured endorsement barred coverage. The endorsement did not cover:

Property damage to Property in the care, custody, or control of the additional insured(s) or over which the additional insured(s) are for any purpose exercising physical control.

Because McMillin was the general contractor on the project, any damage alleged while the homes were being built would have been to property in McMillin's care, custody, or control. McMillin contended that the CCC exception applied only where the insured had exclusive or complete control over the damaged property. 

    The CCC exclusion had been judicially construed to require exclusive or complete control.  Therefore, the provision was not ambiguous. Here, Martin agreed to furnish all labor, materials, and equipment needed to do the roof job. It was primarily and directly responsible for the activities and conduct of its employees. All materials, equipment and tools remained Martins property until they were integrated into the structure and approved by McMillin. Martin and McMillin shared control over Martins roofing work. Accordingly, National Fire did not prove the CCC exclusion rendered coverage for the claims was an impossibility. 

    Therefore, National Fire owed a defense and the judgment was reversed. 

Non-compliance With Endorsement Means No Indemnity Coverage

    The insured's failure to verify that subcontractors had CGL policies and to provide a contract stating that the subcontractors would indemnify the insured as required by the policy's endorsement meant there was no coverage for the insured. Cincinnati Spec. Underwriters Ins. Co. v. Milionis Constr., Inc., 2018 U.S. Dist. LEXIS 199658 (E.D. Wash. Nov. 26, 2018). 

    The homeowners filed suit against Milionis, the general contractor for construction of a home. The underlying suit alleged that Milionis breached the parties' agreement by leaving the home unfinished. Cincinnati defended Milionis under a reservation of rights.

    Cincinnati filed for a declaratory judgment while the underlying action was still pending, seeking a declaration that it had no duty to defend or indemnify Milionis. Cincinnati's initial motion for summary judgment arguing that it had no duty to defend was rejected by the court. In a renewed motion after the underlying action was concluded, ?Cincinnati sought a determination that there was no duty to indemnify. 

    The policy issued by Cincinnati had an endorsement requiring Milionis to: (1) obtain a formal written contract with subcontractors verifying that they had valid CGL insurance; (2) obtain a formal written contract stating that the subcontractors agreed "to defend, indemnify and hold Milionis harmless from any and all liability;" and (3) verify in the contract that the subcontractors had named Milionis as an additional insured on their CGL policy. 

    On the construction project, Milionis had subcontractors perform all the work. Milionis never sent Cincinnati any subcontractor contracts or proof of Milionis's additional insured status as required by the endorsement. 

    The underlying facts established that there was an occurrence and property damage. But Milionis did not dispute that it did not meet the conditions precedent to coverage - obtaining subcontractor contracts and being named as an additional insured on the subcontractors' liability policies. This was prejudicial to Cincinnati. Milionis's noncompliance with the endorsement left it with no contractual indemnification claims that it would have asserted to compel the subcontractors to contribute to the Milionis's defense or settlement. Moreover, it deprived Milionis of the ability to have direct contractual rights to a defense and coverage from the subcontractors' insurers. Consequently, Cincinnati was left with no other insurers and parties to share in the costs of defending and indemnifying Milionis. 

    Cincinnati was therefore relieved of its duty to indemnify under the policy. 

Certified Question Asks Washington Supreme Court Whether Insurer is Bound by Contradictory Certificate of Insurance

    The Ninth Circuit certified a question to the Washington  Supreme Court as follows:

Under Washington law, is an insurer bound by representations made by its authorized agent in a certificate of insurance with respect to a party's status as an additional insured under a policy issued by the insurer, when the certificate includes language disclaiming its authority and ability to expand coverage?

T-Mobile USA Inc. v. Selective Ins. Co lf Am., 2018 U.S. App. LEXIS 31863 (9th Cir. Nov. 9, 2018). 

    In 2010, T-Mobile entered into a Field Services Agreement (FSA) with Innovative Engineering, Inc. under which Innovative would provide services in connection with the construction of rooftop cellular antennae towers in New York City. The FSA required Innovative to maintain general liability insurance naming T-Mobile as an additional insured, and required that Innovative provide T-Mobile with certificates of insurance documenting the coverage. Innovative obtained coverage from Selective Insurance Company of America. 

    The policy contained an Additional Insured (AI) Endorsement that extended "additional insured" status to any entity with whom Innovative entered into a written contract requiring Innovative to add that entity as an additional insured. In 2012, Selective's authorized agent and insurance broker, the Van Dyke Group, Inc. (VDG) issued a Certificate of Insurance (COI) to T-Mobile. The COI stated that T-Mobile, as the certificate holder, "is included as an additional insured" under the Policy. But it also stated that the COI "is issued as a matter of information only and confers no rights upon the certificate holder," "does not affirmatively or negatively amend, extend or alter the coverage afforded by" the Policy, and "does not constitute a contract between the issuing insurer 's authorized representative or producer and the certificate holder." The COI further warned that "if the certificate holder is an Additional Insured, the policy must be endorsed." This was apparently never done.

    In 2009, the owner of the building on which the cell towers were placed informed T-Mobile and Innovative of alleged property damage that resulted from Innovative's earlier work on the rooftop. Innovative and T-Mobile tendered claims to Selective. In April 2013, the building owner sued T-Mobile and Innovative. 

    Selective agreed to defend Innovative, but denied the tender from T-Mobile because T-Mobile did not appear in the Selective policy named as an insured and did not qualify as an additional insured.

    T-Mobile filed suit and sought partial summary judgment, arguing that the 2012 COI issued by Selective's authorized agent stated that T-Mobile was an additional insured. The district court denied T-Mobile's motion and granted Selective's cross-motion for summary judgment.

    On appeal, the Ninth Circuit noted there were two competing principles under Washington insurance law presented by the case. First, under Washington law, an insurer was bound by all acts of its agent which were within the scope of the agent's real or apparent authority. Second, under Washington law, the purpose of issuing a COI was to inform the recipient that insurance had been obtained. 

    Washington law was therefore conflicted on whether Selective was bound by VDG's representation in the 2012 COI that T-Mobile was an additional insured under the Policy. The Ninth Circuit concluded hat the proper course of action was to certify the issue to the Washington Supreme Court. 

    

Defense Owed To Additional Insured General Contractor

    The Illinois Court of Appeals reversed summary judgment entered for the insurer and found the general contractor, an additional insured under the policy, was entitled to a defense. Hastings Mut. Ins. Co. v. Blinderman Constr. Co., Inc., 2017 Ill. App. LEXIS 661 (Ill. Ct. App. Oct. 24, 2017).

    Blinderman was the general contractor on a construction project for an elementary school. Blinderman hired JM Polcurr, Inc. to do the electrical work on the project. By contract, Polcurr was obligated to purchase a policy naming Blinderman as an additional insured for Polcurr's work on the project. Polcurr purchased the policy.

    Polcurr's employee, Robert Woods, suffered a serious injury at work on the project. A court appointed Wood's daughter to serve as guardian for Woods and his estate.

    The Estate of Woods sued Blinderman, alleging that Woods fell from a ladder while working for Polcurr. The complaint alleged that Blinderman failed to provide a safe platform for the work and failed to properly supervise the work. Blinderman tendered the defense to Polcurr's insurer, Hastings Mutual Insurance Company. Hastings rejected the tender based upon the following language in its policy:

 With respect to the insurance afforded to these additional insureds, the following exclusions apply:

. . . 

Liability arising out of the sole negligence of the additional insured or by those acting on behalf of the additional insured.

    Blinderman filed a third-party complaint against Polcurr, arguing that Polcurr should pay a share of any liability assessed against Blinderman because Polcurr failed to inspect the premises, improperly maintained Woods' work area, failed to warn Woods of dangerous conditions, and permitted Woods to use an unstable ladder without appropriate safety equipment. 

    Hastings then filed suit seeking a declaration that it had no duty to defend or indemnify Blinderman for its potential liability in the underlying case. Blinderman and Hastings both filed motions for summary judgment.

    Blinderman supported its motion with its third-party complaint against Polcurr and depositions of two Polcurr employees. The employees testified that Blinderman gave no directions to Polcurr employee about their work. Polcurr employees, including Woods, used only Polcurr equipment. 

    Nevertheless, the trial court held it could not consider the allegations of the third-party complaint when determining whether Hastings had a duty to defend Blinderman. The court further held that the exclusion for liability arising from Blinderman's sole negligence applied, and Hastings had no duty to defend Blinderman because the underlying complaint did not allege that Polcurr acted negligently. Blinderman appealed. 

    The appellate court noted that Hastings had the burden of showing that Blinderman's liability arose out of the sole negligence of Blinderman or those acting on Blinderman's behalf and not from the negligent acts or omissions of Polcurr. 

    In the underlying case, the Estate of Woods did not specifically allege that Polcurr's acts or omissions cuased the injury. But the estate did not expect to recover damages from Polcurr and had no reason to include allegations about the acts or omissions of Polcurr. The complaint's silence concerning Polcurr's acts or omissions did not suffice to meet Hastings' burden of showing the Polcurr's acts or omissions did not contribute to causing the injury. 

    Further, Blinderman's third-party complaint aginst Polcurr included allegations consistent with the Estate's complaint, showing how Polcurr's acts or omissions might have contributed to causing Woods' injury. However, Blinderman would need to rely on those pleadings only if it bore the burden of proving that Polcurr's acts or omissions might have contributed to causing Woods' injury. Because the Estate's complaint included no allegations about Polcurr's acts or omissions, Hastings did not meet its burden of proving that Blinderman's liability in the underlying case arose out of Blinderman's sole negligence. 

    The summary judgment entered on behalf of Hastings was reversed. 

 

Additional Insured Not Entitled to Cumis Counsel When Pursuing Cross-Claim Against Insurer

   The insured contractor was not entitled to independent Cumis counsel despite suing the insurer in a cross-claim. Centex Homes v. St. Palu Fire & Marine Ins. Co., 2018 Cal. App. LEXIS 45 (Cal. Ct. App. Jan. 22, 2018).

     Homeowners sued Centex Homes for construction defects. Centex tendered defense of the suit to St. Paul, the insurer for one of the subcontractors who included Centex as an additional insured under its policy. St. Paul agreed to defend under a reservation of rights. St. Paul reserved the right to deny indemnity for any claims by the homeowners not covered by the policy. St. Paul also reserved its right to reimbursement of costs incurred defending uncovered claims. St. Paul appointed attorney David Lee to represent Centex and defend against the homeowners' claims. 

    Centex filed a cross-complaint against subcontractors alleging breaches of written, oral and implied contracts to indemnify defend and obtain insurance. The cross-complaint included a seventh cause of action for declaratory relief against St. Paul, seeking a declaration that Centex was entitled to independent counsel under Cumis and California statute because St. Paul's reservation of rights created conflicts of interest.

    St. Paul moved for summary judgment on the seventh cause of action. St. Paul introduced evidence that Lee only represented Centex with respect to its defense of the complaint and did not represent Centex, its insured subcontractor, nor St. Paul in connection with the cross-complaint. At his deposition, Lee explained that St. Paul did not place any limitations on his representation of Centex and never dictated or controlled what he could do regarding the prosecution of Centex's cross-complaint. The trial court granted St. Paul's motion.

     The court of appeals affirmed. Under California case law and statute, Centex had the right to obtain independent counsel paid for by St. Paul, as Centex's insurer, whenever their competing interests created an ethical conflict for counsel. Whether independent counsel was required depended upon the nature of the coverage issue as it related to the issues in the underlying case.

    In support of its argument that Lee could have influenced the outcome of the causation question, Centex provided only citations to its own summary judgment briefing, evidence that the trial court deemed inadmissible, evidence that did not fully support Centex's arguments. Because Centex was strictly liable for construction defects, causation would not necessarily have been litigated in the underlying action. Therefore, Centex failed to establish a triable issue of material fact on the question of whether Lee could have controlled the coverage disputed between St. Paul and Centex.

    Consequently, the judgment of the trial court was affirmed. 

Misread of Other Insurance Clause Becomes Costly for Insurer

    One insurer's refusal to defend based upon its "other insurance" provision ultimately meant the insurer had to pay all of the insured's defense costs. Steadfast Ins. Co. v. Greenwich Ins. Co., 2018 Wis. App. LEXIS 51 (Wis. Ct. App. Jan. 17, 2018). 

    Milwaukee Metropolitan Sewerage District (MMSD) was a government agency that provided water reclamation and flood management services to the city. From March 1, 1998 to February 20, 2008, MMSD contracted with United Water Services Milwaukee LLC to operate the sewerage system. From March 1, 2008 on, MMSD contracted with Veolia Water North America-Central, LLC to operate the system. 

    Through agreements, both companies were obligated to indemnify MMSD for claims arising out of the operations and maintenance of the system and to obtain insurance to cover their indemnity obligations. Both companies complied.

    In June 2008, heavy rain overwhelmed MMSD's sewer system and more than 8,000 homeowners reported basement sewage backups. Four rain event lawsuits were filed against MMSD. The suits alleged that MMSD and Veolia were negligent in the inspection, maintenance, repair and operations of the system. United Water was later named as a defendant in one of the lawsuits. 

    MMSD tendered its defense to Steadfast and Greenwich. Steadfast, the insurer for Veolia, which had named MMSD as an additional insured, accepted the tender and defended MMSD. Greenwich, United Water's insurer, did not accept the tender and did not pay any of the defense costs. The underlying suits eventually settled without MMSD or Steadfast making any contribution to the settlement. However, Steadfast reimbursed MMSD $1.55 million towards defense costs that MMSD incurred.

    Steadfast then sued Greenwich to recoup the monies it paid to MMSD for defense costs. The parties filed cross-motions for summary judgment. The trial court denied Greenwich's motion, finding Greenwich had breached its duty to defend MMSD and thereby waived its rights to raise any coverage defense.  After further motion practice, the court awarded Steadfast judgment against Greenwich in the amounts of $1.55 million as damages and $325,500 as attorney fees for the coverage action. Greenwich appealed. 

    The court first analyzed the other insurance provisions in the Greenwich and Steadfast policies. Other insurance provisions were effective in situations involving concurrent coverage. Here the policies were successive, not concurrent. They did not cover the same time period. The court concluded that the Greenwich policy provided primary coverage for the claims against MMSD for the earlier conduct of United Water in operating and maintaining the MMSD system, not excess coverage for that of the Steadfast policy. 

    Greenwich also argued that MMSD did not exhaust the $250,000 self-insured retention (SIR) in its policy. MMSD had submitted a declaration in the summary judgment proceedings stating that it had paid over $800,000 in defending the underlying cases. The appellate court agreed that the SIR had been met. As a consequence, Greenwich's policy provided primary coverage based on United Water's conduct in operating and maintaining MMSD's system. Further, MMSD was entitled to recover the defense costs, including attorney fees, from Greenwich based upon Greenwich's breach.

    Steadfast, as the non-breaching insurer, had a claim for equitable subrogation against Greenwich, who breached its duty to defend. Upon payment to MMSD of defense costs, Steadfast stepped into MMSD's shoes and was entitled to recover from Greenwich the same damages that MMSD would have been entitled to recover from Greenwich. 

    Finally MMSD was entitled to recover the attorney fees incurred in the coverage action under the Greenwich policy. Under the doctrine of equitable subrogation, Steadfast stepped into MMSD's shoes and was equitably entitled to recover those fees in defending coverage.