Creating a Conflict Does Not Create a Claim for Attorney Fees

Marquis Acquisitions and several related entities were sued after a fire at an apartment complex killed three people. The defendants were covered by several layers of insurance, which assumed the defense of the case in successive order as policy limits were exhausted. At each layer, one or another of the defendants sought to reject the insurers’ choice of defense counsel and to be represented instead by the business partner and personal attorney of the defendants’ primary owner. Marquis eventually filed suit against Steadfast Insurance, and that move finally created a conflict between Marquis and the insurer’s chosen counsel that caused the attorney to withdraw. Marquis thereafter sued the insurer to recover “the attorney fees it expended in getting Steadfast to retain separate counsel” for Marquis and some of the other insureds. The trial court granted summary judgment for the insurer, and the Court of Appeals affirmed. Marquis could not recover for breach of the insurance contract because it could not identify any specific terms or conditions that required Steadfast to immediately hire separate counsel based on an insured’s unspecified and unsubstantiated allegations of a conflict of interest. Marquis also could not recover the attorney fees it paid to Shaw as damages, since attorney fees are only recoverable “in addition to” the recovery of actual damages, not as independent damages themselves. The court went on to reject Marquis’ claim that Steadfast’s conduct had constituted an unfair or deceptive act or practice under the Insurance Code because Marquis could not point to any alleged misrepresentation by Steadfast, and further held there was no evidence that the insurer had any duty to independently identify conflicts among its insureds when appointing legal counsel to defend them.

Marquis Acquisitions, Inc. v. Steadfast Ins. Co., No. 05-11-01663-CV