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USCA1 Opinion

United States Court of Appeals


For the First Circuit
____________________

No. 94-2004

GRE INSURANCE GROUP


D/B/A ATLAS ASSURANCE COMPANY OF AMERICA,

Plaintiff, Appellee,

v.

METROPOLITAN BOSTON HOUSING PARTNERSHIP, INC.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]


___________________

____________________

Before

Cyr, Circuit Judge,


_____________
Coffin and Bownes, Senior Circuit Judges.
_____________________

____________________

Joseph G. Blute with whom Jonathan Z. Pearlson


________________
_____________________

and Robert Qu
_________

were on brief for appellant.


Daniel P. Carter with
_________________

whom Michael R. Luongo


__________________

were on brief for appellee.

____________________

July 25, 1995


____________________

and Jayne Con


__________

COFFIN,

question

Senior Circuit Judge.


______________________

whether an insurance carrier

This

appeal

has a duty

raises

the

to defend and

indemnify

its

Massachusetts

insured

against

courts under

insurance policies.

The

lawsuits currently

two Comprehensive

in

General Liability

district court granted summary judgment

in favor of the carrier, and the insured appeals.

the

pending

present state of the

record, that the

Concluding, on

carrier must fulfill

the first of these duties, i.e., the duty to defend the lawsuits,

we reverse and remand.

I. Background
__________

Appellee GRE Insurance Group (GRE)

sold the two policies at

issue here to appellant Metropolitan Boston Housing

Inc.

(Metropolitan),

and

one

Metropolitan Housing, Inc. (MHI).

it,

disburses

federal

and

of

its

Partnership,

predecessor

entities,

Metropolitan, like MHI before

state

housing

subsidies

to

participating

landlords

Certificates

search

of

and

tenants.1

Participation

to

Metropolitan

eligible tenants,

the private rental housing market.

a suitable unit,

Metropolitan steps in

with the property's landlord.

and landlord

who

then

Once a tenant locates

and negotiates the

rent

Metropolitan and the landlord then

enter into an agreement regarding the payment of

and the tenant

issues

sign a lease.

rent subsidies,

Metropolitan

never

____________________

MHI

and

Metropolitan

functions

previously

Assistance

Program

were

performed
of

the

by

formed
the

Massachusetts

Communities and Development.

-2-

to

privatize

Metropolitan
Executive

the

Housing

Office of

becomes

party

to

the

lease,

nor

acquires

any possessory

interest in the apartments.

Before

agreeing

to

subsidize

particular

apartment,

Metropolitan inspects the premises to insure that federal Housing

Quality Standards

visits the

checklist

are satisfied.

apartment and,

confirming

sinks, stoves,

A Metropolitan representative

after visual inspection,

the number

and refrigerators

and

types

completes a

of rooms,

are in working

whether

order, and

so

forth.

lead

Metropolitan's inspectors never

paint.

chipped

Instead,

or peeling,

they simply

and whether

test for the presence of

note

whether the

the landlord

has a

paint is

Letter of

Compliance from a licensed lead paint inspector attesting to lead

paint safety.

If no letter is on file, the landlord is told that

one is required before the subsidy will be given.

named

Despite

this rather

as

defendant

limited

or

third

role,

party

Metropolitan has

defendant

in

been

five

Massachusetts state lawsuits alleging personal injury due to lead

paint exposure

These suits

of minors at

Metropolitan-subsidized apartments.

assert a number of different

Metropolitan, many of which

inspect adequately

the apartments.

for lead

legal theories against

are based on its alleged

paint before agreeing

failure to

to subsidize

GRE

judgment

filed

this

that it

had

diversity

no

action

obligation

seeking

to

defend

declaratory

or

indemnify

Metropolitan against the lawsuits, and the district court granted

summary judgment in its favor.

Metropolitan now appeals.

-3-

II. Analysis
________

We

review de

novo the

district court's

interpretation of

________

these insurance contracts, St. Paul Fire and Marine Ins. Co. v.
___________________________________

Warwick Dyeing Corp., 26 F.3d 1195, 1199 (1st Cir. 1994), guided
_____________________

by

several familiar rules of

construction.2

We

begin with the

actual language of the policies and consider "what an objectively

reasonable insured, reading the

expect to be

covered."

Union Ins. Co.,


_______________

(quoting

Trustees of Tufts Univ. v.


________________________

415 Mass. 844,

849, 616

would

Commercial
__________

N.E.2d 68,

72 (1993)

Hazen Paper Co. v. United States Fidelity & Guaranty


________________
___________________________________

Co., 407 Mass.


___

689, 700, 555

ambiguity,

give

meaning.

relevant policy language,

we

policy

E.g., Cody v.
____ ____

N.E.2d 576,

language

its

583 (1990)).

plain

and

Absent

ordinary

Connecticut General Life Ins. Co., 387


__________________________________

Mass.

142, 146,

439 N.E.2d

resolved against

favor

of

the

234, 237

the insurer,

insured.

interpretations of

(1982).

who drafted

Thus,

if

policy language,

Ambiguities are

the

"there

policy, and

are

two

the insured is

burden

at 700, 555 N.E.2d at 583.

of proving

coverage,

that

which, once

claim

rational

entitled to

the benefit of the one that is more favorable to it."

Mass.

Hazen, 407
_____

The insured bears the initial

falls

established, shifts

within

the

the burden

insurer to show the applicability of any exclusion.

grant

____________________

of

onto the

Camp Dresser
____________

& McKee, Inc. v. Home Ins. Co., 30 Mass. App. Ct. 318, 321,
_____________
______________

N.E.2d 631, 633 (1991).

in

568

2 The parties agree that Massachusetts law controls.

-4-

To determine if

defend claims

a liability policy

made against

underlying complaint

obligates a carrier

its insured,

to the policy;

we simply

they state or adumbrate a claim

insurer

compare the

"if the allegations

complaint are `reasonably susceptible' of an

to

of the

interpretation that

covered by the policy terms, the

must undertake the defense."

Liberty Mut.

Ins. Co. v.

______________________

SCA Services, Inc., 412 Mass. 330, 331-32, 588 N.E.2d 1346, 1347
___________________

(1992)

(quoting Continental Cas. Co. v. Gilbane Bldg. Co., 391


_____________________
__________________

Mass. 143, 146,

omitted).

liability

461 N.E.2d 209, 212

At issue here are two

and commercial

Insuring Agreement

of the

(1984)) (internal quotation

combined comprehensive general

property insurance

policies.

general liability coverage

In the

part, GRE

promised to:

pay those sums that [Metropolitan] becomes legally obligated


to pay as damages because of `bodily injury' . .
this insurance applies. . . .
be caused

The `bodily injury'. . . must

by an `occurrence.'

place in the `coverage

. to which

The `occurrence'

territory.'

We will have

must take

the right

and duty to defend any `suit' seeking those damages.

There

is no

question that

the terms

`occurrence'

and `bodily

injury' are defined in such a way as to cover personal injury due

to

lead paint

exposure,

within the relevant

exclusion

and that

the

coverage territory.

effectively defeats

this

occurrences took

place

Thus, unless a

policy

grant of

coverage, GRE

is

obligated to defend and indemnify the underlying lawsuits against

Metropolitan.

The district

court relied upon

two grounds, both

GRE urges upon us, for holding that there is no

that

the

policies

are

restricted

-5-

to

of which

coverage: first,

liability

arising

at

Metropolitan's

claims

fall within

services.

A.

home

office;

and second,

policy exclusion

the

underlying

relating to

inspection

We examine these propositions in turn.

Was Coverage Limited to Metropolitan's Office?


_____________________________________________

GRE argues that the

policy does not apply to

claims arising from Metropolitan's

office, relying

and

that

two

activities away from its home

upon language in the

supplemental schedules,

liability for

and

policy's Declarations form

upon

the

amount of

the

premium, which the district court found to be too low conceivably

to reflect the parties' intent to cover additional risks.

As for the policy

Form"

language, the "Common Policy Declarations

lists certain basic information about

the policy, such as

the types of

coverage purchased, the

premium for each

coverage

part, the coverage period, the name, address and type of business

of the

insured,

the

contains the operative

the premium,

agree

with

policy."

calls

policy number,

to provide

GRE seizes on

for a

"business

so forth.

sentence: "In return

and subject to

you

and

all the

the

for the payment

terms of

insurance

this policy,

as

stated in

the fact that the next line of

description" of

the

office operations was covered.

reasoning is that

the question

calls for a

also

of

we

this

the form

insured, which

listed as "office," as evidence that only liability

Metropolitan's

It

is

arising from

The flaw in this

description of

the

insured's type of business, not the premises or building to which


____

insurance was to be limited.

The fact that Metropolitan operated

as

an office, rather than a hockey rink, manufacturing plant, or

-6-

boarding

house, was obviously relevant to coverage.

not show a clear understanding

But it does

to restrict coverage to liability

arising out of Metropolitan's office only.

somewhat closer

appears in

question is

the insurance schedules.

presented by

language that

The "Comprehensive General

Liability Coverage

Declarations

Form"

directs

the

reader

to

"refer to [the] common policy premises schedule for a description

and location of all

named insured."

premises owned, rented or controlled

by the

The "Common Policy Premises Schedule," under the

heading "Premises," lists "434 Massachusetts Avenue, Boston, MA,"

i.e., the

location of

"Comprehensive

Schedule,"

General

as

Metropolitan's

or

Premises --

"15,000"

office.

those risks arising out

covered.

Liability

Further,

Insurance

on the

Supplemental

the "Description of Hazards Classification" is listed

as "Buildings

listed

Metropolitan's office.

square

GRE

Office,"

feet,

and the

roughly

argues that

"Exposure"

is

the

of

this shows

area

that only

of Metropolitan's office activities were

Based

on a recent decision of the Supreme Judicial Court of

Massachusetts, however,

University v.
__________

we cannot agree.

In Trustees of Tufts
__________________

Commercial Union Ins. Co., the


__________________________

insurance carrier

argued that the failure to include a certain risk on the schedule

of hazards to a

removed

argument,

comprehensive general liability insurance policy

any coverage

for

holding

simply

unambiguously provide

that risk.

that

that coverage

-7-

The SJC

"nowhere

does

is limited to

rejected

the

that

policy

the specific

hazards listed in the schedule."

415 Mass. at 856, 616 N.E.2d at

76.

In

the instant

case, there

clearly indicating that liability

is no

language in

insurance is limited to claims

arising from occurrences at the premises listed

from

which we

probative

the

have

quoted.3

the policy

This absence

on the schedules

is made

even more

when compared to the presence of such language on both

coverage grant description and the declarations form for the

property coverage
________

part of the policy.

the property part states

loss of or damage

The grant of coverage on

that: "We will pay for

direct physical

to Covered Property at the premises described


__________________________

in the Declarations caused by or resulting from any Covered Cause


___________________

of Loss" (emphasis added).

the

heading "Coverages

"applies

The property declarations form, under

Provided,"

only to the premises

states

that

shown below, and

the

insurance

with respect to

those premises, only for the coverages, causes of loss and limits

shown."

By reference

"premises

shown

failure

to

coverage

to

below" is

include

such

part, under

the

premises schedule,

Metropolitan's

office

language anywhere

in

Tufts, is
_____

comprehensive liability

common

fatal to

space.

the

the

The

liability
_________

GRE's claim

that its

insurance was converted into a premises-

____________________

We

operations

reject
hazard"

GRE's

citation

exclusion

as

to
a

the

"products-completed

sufficiently

unambiguous

statement

of such

limitation.

argument, that provision applies


injury

or property

manufacturer.

damage

It excludes

after an insured's

As

GRE recognized

at

oral

when a completed product causes

after it

leaves

the hands

from coverage liability

operations are completed, not, as

of

its

that arises

here, from

the insured's operations themselves.

-8-

only

liability policy simply by listing a certain premise on the

schedule of hazards.

Several other considerations support our conclusion that the

liability

insurance

Metropolitan's

Metropolitan

Liability"

was

not

office.

purchased

endorsement

First,

arising

(emphasis added).

intended

sold

out

for

the

1990-91

policy.

such

of

We find

coverage only

office at 434

additional

Form

at

premium,

Comprehensive

policy,

which

was

This endorsement expanded

the activities

for

activities at

Massachusetts Avenue in

an

be covered"

office.

of

it quite unlikely

endorsement.

reasonable insured, reading [this]

to

an

occurrences

coverage territory to "anywhere in the world with respect to


_____________________

[injuries]

and

for

to

so-called "Broad

incorporated into the 1991-92

the

limited

for liability

[the]

insured"

that parties

Metropolitan's

Boston would have

Certainly,

an

who

home

bought

"objectively

policy language, would expect

beyond that

arising at

Tufts, 415 Mass. at 849, 616 N.E.2d at 72.

its home

_____

Second,

as

Metropolitan,

telling

GRE

apartments

federal

through

that it

and

of

its

its

application

broker,

hired outside

determine

standards

received this

as

part

so as

made a

satisfied

for

made clear,

general liability."

purported to

Thus, absent express

-9-

point

to go

of

to the

the relevant

the subsidy.

information, GRE sold Metropolitan

their titles

insurance,

specific

"inspectors"

whether they

to qualify

for

Having

policies that,

cover "comprehensive

exclusionary language,

it was

reasonable for Metropolitan to believe

that its coverage

included the inspectors' activities.

Indeed,

as we

find

infra, there
_____

was an

endorsement, the

professional services exclusion, which may indeed have been added

in an attempt to exclude from the grant of coverage any liability

arising

that

from the

endorsement

"arising

out

of

inspectors' activities.

Among

expressly

coverage

the

professional services

services."

excluded from

rendering

. .

or

. including

failure

. . .

to

other things,

any claims

render

any

inspection .

. .

If coverage were given only to Metropolitan's

office

activities in the first place, there would have been no reason to

add this exclusion.

The district court

amount

of

the

Metropolitan's

find the

also gave weight to the relatively small

premium

as

evidence

office activities

premium to

be relatively

were covered.

low, we

amount of the premium to be dispositive.

press

this argument

testimony

charged

no

regarding

seriously, it

the

premium

for comparable risks.

factual basis

whatsoever

that

more

While

do not

than

we also

believe the

First, if GRE wanted to

could have

amount

no

here

submitted expert

versus premiums

Instead, on this record, there is

upon which

to assess

whether the

premium is low or high for the covered risks.

More

importantly, we can

speculate as to

many reasons for

the

very

low premium.

little

GRE may have concluded that Metropolitan faced

liability exposure

disbursing agent for government

because

it

was essentially

funds, which, even including the

-10-

apartment inspections, may

generating large risks.

have been

influenced by a

not have been

seen as an

Or, GRE's calculus of low

enterprise

exposure may

Massachusetts statute, Mass.

Gen. L.

ch. 231

to

85K, which limits liability of non-profit organizations

a $20,000 per

claim cap.

Or, it could

premium erroneously, overlooking

of Metropolitan's operations.

the

circumstances

competent

the apartment inspection aspect

Thus, without

surrounding

premium

evidence, our general view

premium will

have calculated the

a fact finding

calculation

based

on

on

is that the

amount of the

rarely be dispositive in determining

the extent of

coverage, for such a rule would allow

calculations of risk based

poor estimates of risk, or

upon mathematical error, to supersede

the actual coverage to which parties agreed.

Neither of the cases relied upon by the district court is to

the

contrary.

Ins. Co., 92
________

In Chesapeake Physicians Prof. Ass.


_________________________________

Md. App. 385,

608 A.2d 822

v. The Home
________

(1992), the court

was

faced

with a question similar to ours -- whether a comprehensive

general liability insurance

only certain

court's

policy was in fact

premises -- and determined

limited to cover

that it was.

But that

holding was based upon the fact that the policy language

itself clearly limited coverage to the premises in question.

"key language" was

all

the carrier's promise to indemnify and defend

claims "arising out of the ownership, maintenance, or use of


__

the insured premises and all operations incidental thereto."


____________________

at

The

394, 608

GRE's

A.2d at 826

(emphasis added).

As

Id.
___

we have noted,

liability policies have a conspicuous lack of such express

-11-

language limiting coverage to Metropolitan's office.

that

the Chesapeake
__________

court

went

on

to

discuss

It is

number

true

of

considerations that buttressed its decision, one of which was the

fact, also present in

based

on

covered.

the

But,

our case, that the premium

square

footage of

as this

was

the

in the

properties

context of

was calculated

and premises

a policy

that

unambiguously limited coverage to certain premises by its express

terms, it

meaning

has

little, if

any,

relevance to

of the

instant

policy --

interpreting

particularly

after the

the

SJC

decision in Tufts.
_____

The second case, Rumford Property and Liability Ins. Co. v.


________________________________________

Carbone, 590 A.2d


_______

398 (R.I. 1991), is even

less persuasive.

In

Rumford, the insurance company had argued that the relatively low
_______

premium and the use

the

of only certain square footage

premium showed that only certain premises were covered.

trial

court

rejected that
________

insurance company did not

on

to calculate

appeal

was the

argument,

even appeal.

insurance

refusing to provide coverage.

issue,

premium

the Supreme

a ruling

Court of

from

Instead, the

company's

Rhode Island

and the square footage calculation

which the

only issue

alleged bad

In the context of

The

faith

in

resolving that

stated that

the low

created "at least an

arguable

company's

basis

for

denying

contention was "not

coverage."

Since

a frivolous one,"

the

insurance

its conduct of

refusing to defend and indemnify, "while certainly not exemplary,

. . . failed to

reach the level of

bad faith."

Id. at
___

400-01.

-12-

Thus, neither Rumford nor Chesapeake persuade us that the


_______
__________

amount

of the premium is highly probative in this case.

B.

The Professional Services Exclusion


___________________________________

Each

which

policy contains

removes

rendering or

from

"plainly

The

omits

`professional'

professional

coverage

failure to render

for you, including .

services."

liability

services

"arising

coverage

it might

court found

for any
___

be)."

Boston Housing Part., Inc.,


__________________________

out

of

any professional services

. . supervisory, inspection

district

exclusion,

that

inspection

GRE Ins. Group


_______________

the

by or

or engineering

this

endorsement

service

(however

v. Metropolitan
____________

No. 93-11727-RGS, slip op. at

6 (D.

Mass. Aug. 11, 1994).

We disagree.

By

its own

plain

terms,

the

endorsement

excludes coverage for a broad category -- professional services -

- and then specifies

examples.

category

The

types of excluded professional services

examples themselves

they exemplify; they

"professional

are nothing more

than subsets of

"professional," as opposed to "nonprofessional," fall within

the

inspections

See Atlantic Mut. Ins. Co. v. McFadden,


___ _______________________
________

92, 95, 595 N.E.2d

reasoning

only

the

are

90,

Thus,

broader than

that

endorsement.

services."

cannot be

as

in finding

762, 764, 765

that lead

413 Mass.

(1992) (employing similar

paint exposure

was

not within

pollution exclusion, which defined pollutant as "any contaminant,

including smoke, vapor,

and waste,"

because

soot, fumes,

of additional

acids, alkalis,

requirement

dispersal, release or escape" of pollutant).

of

chemicals

"discharge,

-13-

In

(1992),

Roe v. Federal Ins. Co., 412


___
_________________

the Supreme

Judicial

assessing the applicability of a

that

Mass. 43, 587

Court applied

N.E.2d 214

a formulation

for

professional services exclusion

we find instructive in the instant

case.

To be engaged in

professional services,

"[s]omething more
or vocation is

than an act flowing

essential.

The act or

from mere employment

service must be such

as

exacts

the use

or application

attainments of some
means

something

kind.
more

of special

learning or

The term `professional'


than

mere

proficiency

. .
in

the

performance of a task and implies intellectual skill . . . .


A

`professional' act

vocation,

calling,

specialized
skill
rather

or service
occupation,

knowledge, labor,

involved

is

than physical

look not

or
or

arising out

employment
skill and

predominantly mental
or

whether a particular act


we must

is one

manual. .
is . . . a

to the title

involving

the labor

or
.

of a

or

intellectual,
In

determining

`professional service'

or character

of the

party

performing the act, but to the act itself."

412 Mass. at 48, 587 N.E.2d at 217 (quoting Marx v. Hartford Acc.
____
_____________

& Indem. Co., 183


______________

(citations omitted)).

Neb.

12, 13,

N.W.2d

870, 872

(1968)

The cases collected in Roe all analyze the


___

applicability of professional

whether the relevant

157

services exclusions by determining

activity was "professional" in nature.

Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979,


_____
_____________________

See
___

984 (3d Cir. 1988)

(professional

services

exclusion

applies

to

attorney's

preparation and filing of pleadings); Curtis Ambulance v. Shawnee


________________
_______

County Bd. of County Comm'rs., 811 F.2d 1371, 1379-84 (10th Cir.
______________________________

1987)

(professional

personnel's provision

services

of emergency

California, N.A. v. Opie, 663


_________________
____

(professional

exclusion

medical

applies

to

ambulance

services); Bank of
________

F.2d 977, 981-82

services exclusion

management of loan proceeds).

applies

(9th Cir. 1981)

to mortgage

broker's

Therefore, we reverse the district

-14-

court's decision

under

this

whether,

that all inspections were

endorsement,

under

and

remand

Massachusetts

law,

for

necessarily excluded

determination

Metropolitan's

of

inspectors

performed professional services.

Even

if

Metropolitan's

inspections

professional in nature, however,

the

underlying lawsuits

because,

after

Metropolitan,

we

--

collectively,

the

at least

the

find

some of

theories of recovery broader

claims

found

to

GRE would still have to

reviewing

that

are

initially.

complaints

filed

claims

defend

is

so

against

raise

legal

than inadequate inspections.

Taken

include

the

This

be

negligence,

negligent

misrepresentation,

negligently

creating

lead

paint

risk,

failing to require an owner to take corrective action, failing to

correct

a lead paint

hazard, failure to

obtain certificates of

compliance with the lead paint law, and breach of contract and/or

the implied covenant of habitability.

At

least

on

susceptible" of

are beyond

failure

theory

the

to

face,

being read to

the inspection

412 Mass. at 330,

391 Mass. at

their

these

claims

are

"reasonably

"state or adumbrate"

claims that

services exclusion.

588 N.E.2d at 1347 (quoting

146, 461 N.E.2d at 212).

correct a

lead paint

Liberty Mutual,
______________

Continental Cas.,
________________

For example, the claimed

risk appears

to rest

on the

that the very provision of rent subsidies carried with it

responsibility

to

make

whatever

lead

paint

safety

improvements

theory

were necessary.

that the

inspections

Other claims might be based on the

were all

perfectly adequate,

but

-15-

Metropolitan's

follow up

with the landlords

was lacking.

Sterilite Corp. v. Continental Cas. Co., 17 Mass. App.


_______________
_____________________

318,

458

N.E.2d

338, 341

(1983)

("[T]he

process

See
___

Ct. 316,

is one

of

envisaging

range

of

whether

what kind of losses may be proved as lying within the


___

the

any

allegations

such

loss

of the

fits

insurance

reasonably generated

(emphasis

added); cf.
___

F.2d 90,

defend

because

construed, are

express

the

by

and

expectation

the terms

of

protective

of the

1992) (general liability

they

contain

claims

policy.")

on whether

such expansive

insurer must

that,

beyond the professional services

no view

then seeing

Complaint of Stone Petroleum Corp., 961


____________________________________

91-92 (5th Cir.

suits

complaint,

liberally

exclusion).

We

theories ultimately

will be successful against Metropolitan, and thus GRE.4

Therefore, because certain of the claims are

professional services

underlying

suits

exclusion, GRE is obligated

notwithstanding the

possibility

not within the

to defend the

that certain

other claims might be found to be excluded.

See Camp Dresser, 30


___ ____________

Mass. App.

(imposing a

Ct. at

defend despite

323, 568

N.E.2d at 634

the fact that "many of

duty to

the complaint allegations

fell within the exclusion"); see also Aetna Cas. & Surety Co. v.
___ ____ ________________________

Continental Cas. Co., 413 Mass. 730,


____________________

n.1

732 n.1, 604 N.E.2d 30,

32

(1992) (noting that "the weight of authority places the duty

to defend all

least one

counts on an insurer which has a duty to defend at

count of

a complaint").

As

the Camp Dresser


____________

court

____________________

4 Nor need
grant

we, for GRE

of coverage

"even

agreed to defend

if the

groundless, false or fraudulent."

-16-

allegations

suits within

the

of the

are

suit

indicated, an insurer in this position may "undertake the defense

of

the

underlying action

excludable

with

reservation of

respect

to the

claims" or

it may

defense

responsibilities with co-counsel.

rights

with

share respective

30 Mass. App. Ct. at

323 n.4, 568 N.E.2d at 634 n.4.

III. Conclusion
__________

If the inspections are found to fall within the professional

services

exclusion, GRE would

be obligated to

defend the suits

against

Metropolitan

resolved,5

or an

until

the

non-excludable

arrangement such as

claims

contemplated by

are

the Camp
____

Dresser court is established, and would have to indemnify only if


_______

Metropolitan were found liable on a non-excludable claim.

inspections are found

have to

defend

If the

not to be professional services, GRE would

the suits

and

indemnify Metropolitan

for

any

successful claims.

The judgment of the district court in favor of GRE is


____________________________________________________________

reversed. The case is remanded for entry of judgment in favor of


_________________________________________________________________

Metropolitan on the duty to defend, and for a determination


_________________________________________________________________

consistent
with this
opinion
of
whether
Metropolitan's
_________________________________________________________________

____________________

5 In

this case,

we would imagine

that GRE could

test the

viability of those claims that do not rely exclusively on alleged


inadequate inspections by way
summary

of early motion to dismiss

judgment in the underlying state cases.

were removed,

it

underlying cases

appears that

Ct. at 323-24 (the duty to

If those claims

GRE's obligation

would terminate.

or for

See Sterilite,
___ _________

to defend

the

17 Mass. App.

defend ceases if and when the insurer

demonstrates that no claim asserted

within the grant of coverage

can be successful in the underlying

action); see also Lumbermans


___ ____ __________

Mut. Cas. Co. v. Belleville Ind., Inc., 407


______________
______________________
555

N.E.2d 568, 575

(1990) (citing Sterilite


_________

course, we are not faced with these questions.

-17-

Mass. 675, 685-86,


approvingly).

Of

inspections were professional in nature.


_______________________________________

-18-