August 18, 2007
Maine Supreme Court Issues Interesting Expressio Unius
In Foremost Ins. v. Levesque, 926 A.2d 1185 (Me. 2007), the court split on whether, if the insurer brought a DJ action seeking an order that insurer did not have a duty to indemnify (as opposed to defend) and the insured prevailed, the insurer had to pay the insured's attorneys' fees. A Maine statute states that when there is a declaratory judgment action “to determine an insurer’s contractual duty to defend an insured under an insurance policy, if the insured prevails in such action, the insurer shall pay court costs and reasonable attorney’s fees.” 24-A M.R.S. § 2436-B(2) (2006). Thus, it only applied to the duty to defend, not the duty to indemnify.
The court split. In doing so, it collected and discussed cases from other jurisdictions analyzing the issue. The majority held that the insured could collect attorneys fees; the dissent, however, relied on the fact that by including "duty to defend" the statute by implication excluded "duty to indemnify."
It's an interesting issue, since one wonders if the purpose of the statute under the dissent's reasoning could easily be stripped away by smart-pleading insurance companies. Also, the majority never quite rationalized its result with the statute's language.
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