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April 15, 2005.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Litman, Asche & Gioiella, LLP ("LA&G"), a New York law firm, brings this action against two insurance companies, Chubb Custom Insurance Company and Executive Risk Indemnity, Inc. (collectively "Chubb"), for unjust enrichment, promissory estoppel, and breach of implied-in-fact contract. In essence, LA&G seeks to receive payment for services rendered to its client, Charles B. Spadoni, for whom it claims Chubb is required to reimburse legal fees under a Directors and Officers ("D&O") insurance policy issued by Chubb to Spadoni's employer, Triumph Capital Group, Inc. ("Triumph"). Both parties agree that the case is ripe for decision on the undisputed documentary facts submitted by the parties, and both parties cross-move for summary judgment in whole or in part on the present record. Chubb's motion will be granted, and LA&G's denied. BACKGROUND

  Chubb insured Triumph, a Boston-based fund manager company, and some of its executives, under a D&O policy. The policy did not obligate Chubb to defend Triumph or its officers, but rather, it provided reimbursement of defense costs for eligible claims against the company and its directors and officers.

  Triumph, its president, Frederick McCarthy, and its general counsel, Spadoni, came under investigation by a federal grand jury in Connecticut in 1999, and were ultimately indicted on various charges growing out of a scheme to bribe the State Treasurer. Triumph asserted a claim under the D&O policy, seeking payment of defense costs relating to the investigation. Chubb advanced the defense costs, while reserving the right to disclaim coverage and seek recoupment of its payments.

  As the investigation wore on, disputes developed among the parties regarding Chubb's willingness to advance defense costs. These disputes were settled by agreements entered in June and July 2002. In the June agreement, Chubb promised to "advance to Triumph" funds to pay for defense costs "that Chubb believes . . . reimbursable" under the policy, while reserving "the right to determine whether [expenses incurred after February 28, 2002] are reimbursable." (Pollard Aff. Ex. D at 5, 6.)

  Following this agreement, Spadoni retained LA&G as his new defense counsel, and entered the July agreement with Chubb. The July agreement, which was negotiated by LA&G attorneys on behalf of Spadoni, modified the June agreement, providing that Chubb would advance Spadoni's legal fees directly to LA&G and setting up an agreed budget and system for submitting LA&G invoices to Chubb. (Pollard Aff. Ex. E. at 2-3.) LA&G asserts, and Chubb does not deny, that during these negotiations, it specifically represented to Chubb that it was a small firm that needed assurances that it would be paid as fees were incurred. Accordingly, the parties agreed that Chubb would pay LA&G's bills without scrutinizing their reasonableness, in return for LA&G's agreement to cap its fees and to agree to a specific budget and payment schedule. (Id. at 3.) The July agreement, however, specifically provided that Chubb's obligations remained subject to the terms of the D&O policy and "Chubb's ongoing reservations of rights[,] . . . including the right to seek recoupment from the insureds of advanced Defense Costs if it ultimately determines that there is no coverage under the Policies for the criminal action." (Id.) The agreement further expressly stated, "This agreement is between Chubb and Mr. Spadoni. This agreement shall not be construed or interpreted to create any contractual relationship or obligations between Chubb and LA&G." (Id.)

  In September 2003, Chubb advanced defense costs to LA&G for Spadoni's pre-trial fees accrued through June 2003. (P. Rule 56.1 Stmt. at 4.) At trial, Spadoni and Triumph were convicted of various crimes relating to the bribery scheme. In light of the trial evidence, Chubb concluded that under a provision in the policy excluding claims based on the receipt of illegal profit or advantage by an insured, it was not obligated to pay Spadoni's defense costs, and had the right to recoup its advances from Spadoni. (D. Mem. 6.) Accordingly, Chubb ceased paying for Spadoni's defense, although LA&G continued to represent him and provide legal services. Chubb also sued Spadoni (as well as Triumph and McCarthy) in the Massachusetts state courts seeking recoupment of its advances. Spadoni counterclaimed, seeking continuation of his benefits under the policy. (Id. at 7.) Subsequently, LA&G brought this action in this Court, asserting claims against Chubb in contract, unjust enrichment, and estoppel.


  I. Venue

  As an initial matter, Chubb argues that the Court should dismiss this action and defer to the action in Massachusetts, on two separate grounds. First, it notes that a venue provision in the June 2002 agreement requires that any claim under that agreement should be brought in Massachusetts. Second, it argues that this action is duplicative of the Massachusetts action, and that permitting LA&G to assert its claims here would subject Chubb to the possibility of inconsistent outcomes.

  These arguments are without merit. First, the June and July 2002 agreements are by their terms agreements between Chubb and Spadoni. LA&G is not a party to those agreements. Accordingly, LA&G has attempted to plead around those agreements, resting its claims instead on quasi-contractual equitable theories of unjust enrichment and estoppel, and on an alleged implied contract between LA&G and Chubb distinct from the written agreements between Chubb and Spadoni. Chubb maintains that these claims are really rooted in the Chubb-Spadoni agreements. However, to determine that issue, the Court must address LA&G's claims on their merits. To hold that LA&G is bound by the venue provisions of the Chubb-Spadoni agreement in effect begs the question that LA&G seeks to present to the Court.

  Second, for similar reasons, this action is not duplicative of the Massachusetts action and does not threaten Chubb with inconsistent outcomes. LA&G is not a party to the Massachusetts action, which will adjudicate the respective rights of Spadoni and Chubb. If Chubb prevails, it will no longer be obligated to advance fees for Spadoni's defense, and will be entitled to recover from Spadoni any funds advanced on his behalf. In this action, however, LA&G contends that Chubb has independently incurred obligations to it. These claims are not present in the Massachusetts action. There would be no inconsistency between judgments holding that Chubb is entitled to recoupment from Spadoni, and that Chubb has incurred a separate obligation to LA&G.

  Accordingly, there is no basis for dismissing this action in favor of actual or hypothetical lawsuits in Massachusetts. ...

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