MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	   2016	ME	161	
Docket:	     Kno-15-282	
Argued:	     March	3,	2016	
Decided:	    November	3,	2016	
	
Panel:	      SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:	ALEXANDER,	J.	
	
	
                              DAWN	M.	HARLOR	
                                      	
                                     v.	
                                      	
                      AMICA	MUTUAL	INSURANCE	COMPANY	
	
	
JABAR,	J.	

       [¶1]		Dawn	M.	Harlor	appeals	from	a	summary	judgment	entered	by	the	

Superior	Court	(Knox	County,	Billings,	J.)	in	favor	of	Amica	Mutual	Insurance	

Company	 on	 Harlor’s	 complaint	 that	 Amica	 breached	 Harlor’s	 homeowner’s	

insurance	policy	by	failing	to	defend	Harlor	in	a	lawsuit	against	her.		Because	

the	suit	against	Harlor	included	allegations	that	could	potentially	result	in	an	

award	of	damages	covered	by	Harlor’s	homeowner’s	policy,	Amica	was	bound	

to	 provide	 Harlor	 a	 defense.	 	 We	 therefore	 vacate	 the	 judgment	 and	 remand	

for	 the	 entry	 of	 a	 summary	 judgment	 in	 favor	 of	 Harlor	 on	 her	 claim	 for	

breach	 of	 contract	 relating	 to	 the	 duty	 to	 defend	 and	 remand	 for	 further	

proceedings	on	Harlor’s	claim	for	indemnification.	
2	

                                  I.		BACKGROUND	

      [¶2]	 	 The	 relevant	 facts	 are	 not	 in	 dispute.	 	 In	 March	 2013,	 Jon	 and	

Winifred	 Prime	 brought	 suit	 against	 Harlor.	 	 The	 suit	 arose	 from	 a	 dispute	

between	 the	 parties	 over	 the	 Primes’	 right	 to	 use	 a	 dock	 according	 to	 an	

easement	 Harlor	 had	 granted	 to	 the	 Primes.	 	 The	 Primes	 alleged	 that,	 acting	

according	 to	 an	 agreement	 with	 Harlor,	 they	 made	 certain	 improvements	 to	

the	dock	that	resulted	in	the	removal	of	a	restriction	on	the	size	of	the	boats	

they	 were	 allowed	 to	 maintain	 at	 the	 dock.	 	 The	 Primes	 alleged	 that	 when	

Harlor	later	sold	the	dock,	she	obtained—through	false	statements	and	undue	

pressure—the	 Primes’	 agreement	 to	 a	 “Confirmation	 of	 Easement”	 that	 may	

not	have	reflected	the	removal	of	the	boat	size	restriction.		The	Primes	further	

alleged	 that,	 following	 Harlor’s	 sale,	 Harlor	 refused	 to	 confirm	 the	 Primes’	

right	to	use	the	dock	for	larger	boats	and	made	false	statements	regarding	the	

Primes’	right	to	use	the	dock.		Harlor’s	actions,	the	Primes	alleged,	resulted	in	

uncertainty	 regarding	 the	 easement	 and	 prevented	 the	 Primes	 from	 selling	

property	that	benefitted	from	the	easement.			

      [¶3]		The	Primes	brought	a	complaint	against	Harlor,	seeking	damages	

for	 slander	 of	 title,	 interference	 with	 an	 advantageous	 relationship,	 unjust	

enrichment,	 fraud,	 and	 negligent	 misrepresentation,	 and	 seeking	 through	
                                                                                                              3	

separate	 counts	 a	 declaratory	 judgment	 and	 punitive	 damages.	 	 The	 crux	 of	

the	 suit	 was	 a	 determination	 as	 to	 whether,	 by	 the	 terms	 of	 the	 agreement	

between	 Harlor	 and	 the	 Primes,	 the	 Primes’	 improvements	 to	 the	 dock	

removed	the	boat	size	restriction	contained	in	the	easement.			

       [¶4]	 	 At	 all	 relevant	 times,	 Harlor	 was	 insured	 by	 Amica	 under	 a	

homeowner’s	insurance	policy	that	provided	that	Amica	would	defend	Harlor	

against	claims	that	may	result	in	covered	damages.		Harlor	notified	Amica	of	

the	 Primes’	 suit	 and	 requested	 that	 Amica	 provide	 a	 defense.	 	 In	 April	2013,	

Amica	denied	Harlor’s	request	based	on	its	conclusion	that	the	suit	could	not	

result	in	covered	damages.		

       [¶5]	 	 Harlor	 settled	 the	 suit	 with	 the	 Primes	 and	 brought	 suit	 against	

Amica.		Harlor	sought	a	declaratory	judgment	that	Amica	had	been	obligated	

to	provide	Harlor	with	a	defense	to	the	Primes’	suit	and	claimed	a	breach	of	

contract	 based	 on	 Amica’s	 failure	 to	 defend	 her.	 	 Both	 parties	 moved	 for	

summary	 judgment.	 	 The	 court	 granted	 Amica’s	 motion,	 concluding	 that	 any	

damages	that	might	have	resulted	from	the	suit	against	Harlor	would	not	be	

covered	 by	 Harlor’s	 policies	 and	 consequently	 did	 not	 give	 rise	 to	 a	 duty	 to	

defend.1			


  1	 	 The	 trial	 court	 relied	 on	 Langevin	 v.	 Allstate	 Insurance	 Company,	 in	 which	 we	 held	 that	 an	

insurer	did	not	have	a	duty	to	indemnify	an	insured	for	emotional	distress	damages	under	a	policy	
4	

                                              II.		DISCUSSION	

	       [¶6]	 	 On	 appeal,	 Harlor	 argues	 that	 Amica	 had	 a	 duty	 to	 tender	 her	 a	

defense	 because	 the	 Primes’	 claim	 for	 interference	 with	 an	 advantageous	

relationship	 created	 a	 potential	 that	 the	 Primes	 could	 have	 proved	 facts	 at	

trial	 that	 would	 have	 established	 liability	 covered	 by	 Harlor’s	 insurance	

policy.	 	 She	 also	 contends	 that	 Amica	 is	 liable	 for	 the	 attorney	 fees	 she	

incurred	 in	 the	 underlying	 action	 with	 the	 Primes	 and	 in	 this	 declaratory	

judgment	action,	as	well	as	the	amount	that	she	paid	to	settle	the	underlying	

claim.		

A.	     An	Insurer’s	Duty	to	Defend	

	       [¶7]		Whether	an	insurer	has	a	duty	to	defend	an	insured	is	a	question	

of	law.		York	Ins.	Grp.	of	Me.	v.	Lambert,	1999	ME	173,	¶	4,	740	A.2d	984.		As	

with	summary	judgment	review	in	other	contexts,	here	we	consider	de	novo	

whether	 the	 trial	 court	 erred	 in	 granting	 summary	 judgment	 to	 Amica	 on	

Harlor’s	 claim	 that	 Amica	 breached	 its	 duty	 to	 defend.	 	 See	 Hardenbergh	 v.	

Patrons	Oxford	Ins.	Co.,	2013	ME	68,	¶	12,	70	A.3d	1237.		Because	the	relevant	

facts	 are	 not	 in	 dispute,	 we	 review	 the	 summary	 judgment	 for	 errors	 of	 law,	


restricting	 coverage	 to	 claims	 for	 “bodily	 injury.”	 	 2013	 ME	 55,	 ¶	 18,	 66	 A.3d	 585.	 	 As	 discussed	
below,	however,	the	duty	to	defend	is	broader	than	the	duty	to	indemnify,	and	 Langevin	does	not	
aid	in	a	determination	of	whether	an	insurer	has	a	duty	to	defend.		See	Mitchell	v.	Allstate	Ins.	Co.,	
2011	ME	133,	¶	10,	36	A.3d	876.	
                                                                                                                5	

including	 errors	 in	 the	 interpretation	 of	 the	 insurance	 policy.	 	 See	 Howe	 v.	

MMG	Ins.	Co.,	2014	ME	78,	¶	5,	95	A.3d	79;	Langevin	v.	Allstate	Ins.	Co.,	2013	

ME	55,	¶	7,	66	A.3d	585.		We	therefore	independently	examine	the	language	of	

the	policy	at	issue	to	determine	the	scope	of	coverage,	and	then	consider	the	

general	 allegations	 of	 the	 Primes’	 complaint	 “to	 determine	 whether	 it	 falls	

within	 the	 scope	 of	 the	 policy’s	 coverage.”	 	 Hardenbergh,	 2013	 ME	 68,	 ¶	 14,	

70	A.3d	1237.	

        [¶8]	 	 To	 determine	 whether	 an	 insurer	 has	 a	 duty	 to	 defend,	 a	 court	

considers	 and	 compares	 two	 documents:	 the	 insurance	 policy	 and	 the	

underlying	 complaint	 against	 the	 insured.	 	 Irving	 Oil,	 Ltd.	 v.	 ACE	 INA	 Ins.,	

2014	ME	 62,	 ¶	 12,	 91	 A.3d	594.	 	 An	 insurer	 has	 a	 duty	 to	 defend	 an	 insured	

when	the	complaint,	read	broadly	in	conjunction	with	the	policy,	reveals	the	

existence	 of	 any	 legal	 or	 factual	 basis	 that	 could	 potentially	 be	 developed	 at	

trial	 and	 result	 in	 an	 award	 of	 damages	 covered	 by	 the	 terms	 of	 the	 policy.2		

Howe,	 2014	 ME	 78,	 ¶¶	 6,	 10,	 95	 A.3d	 79;	 L.	 Ray	 Packing	 Co.	 v.	 Commercial	

Union	 Ins.	 Co.,	 469	A.2d	 832,	 833	 (Me.	 1983).	 	 Although	 courts	 “do	 not	

speculate	about	causes	of	action	that	were	not	stated[,]	.	.	.	our	rules	of	notice	


   2		“We	have	previously	noted	that	the	duty	to	indemnify	is	more	narrow	than	the	duty	to	defend.		

Whereas	 the	 duty	 to	 defend	 depends	 only	 upon	 the	 facts	 alleged	 in	 the	 complaint,	 the	 duty	 to	
indemnify	 depends	 upon	 the	 facts	 proved	 at	 trial.”	 	 Union	 Mut.	 Fire	 Ins.	 Co.	 v.	 Topsham,	 441	 A.2d	
1012,	1016	n.2	(Me.	1982).	
6	

pleading	favor	a	broad	construction	of	the	duty	to	defend.”		York	Golf	&	Tennis	

Club	 v.	 Tudor	 Ins.	 Co.,	 2004	 ME	 52,	 ¶	 8,	 845	 A.2d	 1173	 (citations	 omitted).		

“The	facts	alleged	in	the	complaint	need	not	make	out	a	claim	that	specifically	

and	unequivocally	falls	within	the	coverage.		Rather,	where	the	events	giving	

rise	to	the	complaint	may	be	shown	at	trial	to	fall	within	the	policy’s	coverage,	

an	insurer	must	provide	the	policyholder	with	a	defense.”		Mitchell	v.	Allstate	

Ins.	Co.,	2011	ME	133,	¶	10,	36	A.3d	876	(quotation	marks	omitted)	(citations	

omitted).		We	have	explained	the	comparison	test	and	its	“low”	threshold	for	

triggering	 an	 insurer’s	 duty	 to	 defend,	 Irving	 Oil,	 2014	 ME	 62,	 ¶	 12,	 91	

A.3d	594,	as	a	test	and	a	threshold	designed	to	“discourage	mini-trials	on	the	

issue	of	the	duty	to	defend,”	Me.	Bonding	&	Cas.	Co.	v.	Douglas	Dynamics,	Inc.,	

594	 A.2d	 1079,	 1080	 (Me.	1991);	 see	 Lambert,	 1999	 ME	 173,	 ¶	 5,	 740	 A.2d	

984	 (“We	 see	 no	 reason	 why	 the	 insured,	 whose	 insurer	 is	 obligated	 by	

contract	to	defend	him,	should	have	to	try	the	facts	in	a	suit	against	his	insurer	

in	order	to	obtain	a	defense.”	(quotation	marks	omitted)).	

B.	   Harlor’s	Homeowner’s	Policy	

	     [¶9]	 	 Harlor’s	 homeowner’s	 insurance	 policy	 included	 the	 following	

coverage	for	personal	liability:	
                                                                                        7	

      If	 a	 claim	 is	 made	 or	 a	 suit	 is	 brought	 against	 an	 insured	 for	
      damages	because	of	bodily	injury	.	.	.	caused	by	an	occurrence	to	
      which	this	coverage	applies,	we	will:	
      	
      1.	      Pay	up	to	our	limit	of	liability	for	the	damages	for	which	an	
               insured	 is	 legally	 liable.	 	 Damages	 include	 prejudgment	
               interest	awarded	against	an	insured;	and	
      	
      2.	      Provide	 a	 defense	 at	 our	 expense	 by	 counsel	 of	 our	 choice,	
               even	 if	 the	 suit	 is	 groundless,	 false	 or	 fraudulent.	 	 We	 may	
               investigate	 and	 settle	 any	 claim	 or	 suit	 that	 we	 decide	 is	
               appropriate.	 	 Our	 duty	 to	 settle	 or	 defend	 ends	 when	 our	
               limit	of	 liability	for	 the	 occurrence	 has	 been	 exhausted	 by	
               payment	of	a	judgment	or	settlement.	
      	
      [¶10]		The	policy	defined	“occurrence”	in	relevant	part	as	“an	accident,	

including	continuous	or	repeated	exposure	to	substantially	the	same	general	

harmful	 conditions,	 which	 results,	 during	 the	 policy	 period	 in	 .	 .	 .	 [b]odily	

injury.”	 	 The	 term	 “bodily	 injury”	 was	 defined	 as	 “bodily	 harm,	 sickness	 or	

disease,	including	required	care,	loss	of	services	and	death	that	results.”			

      [¶11]		Referencing	the	personal	liability	provision	of	her	homeowner’s	

policy,	 Harlor	 argues	 that	 Amica	 was	 required	 to	 defend	 her	 because	 the	

Primes	could	potentially	have	recovered	damages	for	emotional	distress	and	

bodily	 harm	 caused	 by	 such	 distress	 on	 their	 claim	 of	 interference	 with	 an	

advantageous	relationship.			
8	

C.	   Duty	 to	 Defend	 Claim	 of	 Interference	 with	 an	 Advantageous	
      Relationship	
	
      [¶12]	 	 To	 establish	 a	 claim	 of	 interference	 with	 an	 advantageous	

relationship,	 the	 Primes	 would	 have	 had	 to	 prove	 “the	 existence	 of	 a	 valid	

contract	 or	 prospective	 economic	 advantage,	 interference	 with	 that	 contract	

or	advantage	through	fraud	or	intimidation,	and	damages	proximately	caused	

by	 the	 interference.”	 	 Barnes	 v.	 Zappia,	 658	 A.2d	 1086,	 1090	 (Me.	 1995).		

Generally,	a	plaintiff	claiming	tortious	interference	alleges	that	the	defendant	

interfered	 with	 a	 contract	 or	 prospective	 economic	 advantage	 involving	 the	

plaintiff	and	someone	other	than	the	defendant.		See	generally	Currie	v.	Indus.	

Sec.,	Inc.,	2007	ME	12,	915	A.2d	400;	Rutland	v.	Mullen,	2002	ME	98,	798	A.2d	

1104;	Petit	v.	Key	Bank	of	Me.,	688	A.2d	427	(Me.	1996);	MacKerron	v.	Madura,	

445	A.2d	 680	 (Me.	1982),	 superseded	 by	 statute,	 P.L.	 1987,	 ch.	 740,	 §	 8	

(effective	 Aug.	 4,	 1988)	 (codified	 at	 14	 M.R.S.A.	 §	 8111(1)(E)	

(1980	&	Supp.	1988));	see	also	3	Dan	B.	Dobbs,	The	Law	of	Torts	§	616	at	498	

(2d	ed.	2011).			

      [¶13]	 	 At	 the	 outset,	 we	 disagree	 with	 the	 concurring	 opinion’s	

proposition	 that	 Maine	 law	 demands	 that	 the	 fraud	 or	 intimidation	 required	

as	an	element	of	a	tortious	interference	claim	must	be	directed	at	an	identified	

third	party,	not	at	the	plaintiff.		We	have	never	announced	such	a	limitation	on	
                                                                                        9	

Maine’s	 common	 law,	 and	 we	 decline	 to	 do	 so	 now.	 	 As	 the	 First	 Circuit	 has	

noted,	 in	 Massachusetts,	 a	 plaintiff	 can	 make	 out	 a	 claim	 for	 this	 tort	 by	

alleging	 either	 (a)	 that	 the	 defendant	 interfered	 with	 the	 plaintiff’s	

advantageous	 relationship	 with	 a	 third	 party	 by	 committing	 fraud	 or	

intimidation	against	the	third	party	or	(b)	that	the	defendant	interfered	with	

the	 plaintiff’s	 relationship	 with	 a	 third	 party	 by	 committing	 fraud	 or	

intimidation	against	the	plaintiff.		See,	e.g.,	O’Donnell	v.	Boggs,	611	F.3d	50,	54	

(1st	Cir.	2010)	(interpreting	Massachusetts	tort	law);	Restatement	(Second)	of	

Torts	§§	766A,	766B	(Am.	Law	Inst.	1979).			

      [¶14]	 	 Here,	 the	 Primes	 claimed	 in	 their	 complaint	 that	 Harlor	

interfered	 with	 the	 Primes’	 prospective	 advantageous	 relationship	 with	

potential	 buyers	 by	 committing	 fraud	 and	 intimidation	 against	 the	 Primes.		

This	 claim	 requires	 us	 to	 consider,	 as	 we	 do	 below,	 whether	 the	 Primes’	

complaint	alleged	facts	that	could	give	rise	to	the	type	of	damages	that	would	

invoke	Amica’s	duty	to	defend	Harlor	pursuant	to	Harlor’s	insurance	policy.	

      [¶15]		We	have	not	previously	spoken	definitively	on	the	availability	of	

emotional	distress	damages	on	a	claim	of	interference	with	an	advantageous	

relationship	 and,	 because	 the	 issue	 here	 is	 Amica’s	 duty	 to	 defend,	 we	 need	

not	do	so	now.		See	Gagnon	v.	Turgeon,	271	A.2d	634,	635	(Me.	1970)	(holding	
10	

that	 a	 party	 who	 interferes	 with	 an	 advantageous	 relationship	 “is	 liable	 in	

damages	 for	 such	 injuries	 as	 naturally	 result	 therefrom”);	 Restatement	

(Second)	 of	 Torts	 §	 774A(1)(c)	 (Am.	 Law	 Inst.	 1979)	 (“One	 who	 is	 liable	 to	

another	for	interference	with	a	contract	or	prospective	contractual	relation	is	

liable	 for	 damages	 for	 .	 .	 .	 emotional	 distress	 or	 actual	 harm	 to	 reputation,	 if	

they	are	reasonably	to	be	expected	to	result	from	the	interference.”);	see	also	

Lambert,	 1999	 ME	 173,	 ¶	 7,	 740	 A.2d	 984	 (“allegations	 of	 the	 interference	

with	an	expectancy	of	inheritance	claim	carry	the	possibility	of	an	award	for	

emotional	distress”).			

	      [¶16]		Although	the	Primes’	claim	for	interference	with	an	advantageous	

relationship	 did	 not	 specifically	 include	 allegations	 of	 emotional	 distress	 or	

bodily	 injury,	 or	 a	 request	 for	 money	 damages	 for	 the	 same,	 the	 comparison	

test	transcends	the	specific	factual	allegations	and	forms	of	relief	requested	in	

the	 complaint.	 	 “‘Precision’	 .	 .	 .	 is	 not	 necessary	 for	 determining	 a	 duty	 to	

defend.		The	correct	test	is	whether	a	potential	for	liability	within	the	coverage	

appears	 from	 whatever	 allegations	 are	 made.”	 	 Travelers	 Indem.	 Co.	 v.	

Dingwell,	 414	A.2d	220,	226	 (Me.	 1980).	 	 Moreover,	 “the	 fact	 that	 the	

complaint	 itself	 did	 not	 request	 monetary	 damages,	 in	 its	 prayers	 for	 relief,	

does	 not	 end	 the	 matter.	 	 A	 court	 can	 grant	 relief	 to	 a	 plaintiff	 that	 is	 not	
                                                                                          11	

requested	 in	 a	 complaint	 if	 the	 plaintiff	 is	 entitled	 to	 the	 relief	 and	 the	

judgment	is	not	granted	by	default.”		York	Golf	&	Tennis	Club,	2004	ME	52,	¶	

12,	 845	 A.2d	 1173.	 	 We	 accordingly	 look	 to	 the	 general	 allegations	 for	 the	

particular	claims	asserted	in	the	underlying	complaint	to	determine	whether	

they	could	potentially	support	an	award	of	covered	damages	for	bodily	injury	

caused	 by	 emotional	 distress,	 resulting	 from	 an	 “occurrence”	 within	 the	

meaning	of	Harlor’s	homeowner’s	insurance	policy.	

       [¶17]	 	 In	 their	 complaint,	 the	 Primes	 asserted	 that	 Harlor	 “interfered	

with	 [their]	 attempts	 to	 sell	 their	 real	 estate	 through	 bad	 faith	 conduct,	

fraud[,]	.	.	.	intimidation,	.	.	.	[and]	misrepresentations	with	respect	to	both	the	

status	of	[their]	easement	and	with	respect	to	the	Confirmation	of	Easement.”		

The	Primes	further	asserted	that	they	were	“damaged	by	[Harlor’s]	fraudulent	

interference	in	that	they	have	been	unable	to	sell	their	property.”			

       [¶18]	 	 The	 Primes’	 allegations	 regarding	 the	 damages	 flowing	 from	

Harlor’s	 allegedly	 tortious	 conduct	 arguably	 constitute	 an	 “accident	 or	

occurrence”	within	the	meaning	of	the	personal	liability	provisions	of	Harlor’s	

homeowner’s	 policy.	 	 See	 Vigna	 v.	 Allstate	 Ins.	 Co.,	 686	 A.2d	 598,	 600	 (Me.	

1996)	(“The	‘accidental’	nature	of	an	event	for	purposes	of	a	standard	liability	

insurance	 contract	 .	 .	 .	 does	 not	 derive	 from	 the	 voluntariness	 of	 the	 act,	 but	
12	

rather	 from	 the	 unintentional	 nature	 of	 the	 consequences	 flowing	 from	 the	

act.”).		Because	the	Primes’	allegations	of	Harlor’s	allegedly	tortious	actions—

specifically,	 interference	 with	 the	 Primes’	 prospective	 advantageous	

relationship	 with	 potential	 buyers	 through	 intimidation	 and	 fraud—could	

have	resulted	in	harm	to	the	Primes,	including	bodily	harm	due	to	emotional	

distress,	Harlor	could	have	been	found	liable	for	a	type	of	damages	covered	by	

the	personal	liability	provisions	of	her	homeowner’s	policy.3	

        [¶19]		Comparing	the	general	allegations	of	the	Primes’	complaint	with	

the	 terms	 of	 Harlor’s	 homeowner’s	 policy,	 there	 was	 a	 possibility	 that	 the	

Primes	 could	 have	 established	 that	 they	 suffered	 bodily	 injury	 as	 a	 result	 of	

emotional	 distress	 caused	 by	 Harlor’s	 actions.	 	 See	 Douglas	 Dynamics,	 594	

A.2d	 at	 1081.	 	 Amica	 was	 therefore	 bound	 by	 the	 terms	 of	 its	 insurance	

contract	 with	 Harlor	 to	 provide	 her	 a	 defense	 to	 the	 Primes’	 suit,	 and	 it	

breached	that	contractual	obligation	by	failing	to	do	so.4	




   3	 	 Although	 we	 have	 never	 affirmatively	 announced	 that	 emotional	 distress	 bodily	 harm	 is	 a	

recoverable	damage	of	this	tort,	neither	have	we	declared	that	it	is	not	recoverable.	
   	
   4		“Because	an	insurer	has	a	duty	to	defend	if	any	cause	of	action	alleged	in	a	complaint	could	fall	

within	 the	 policy’s	 liability	 coverage,	 we	 need	 not	 consider	 whether	 other	 theories	 of	 liability	 set	
forth	 in	 the	 [Primes’]	 complaint	 .	 .	 .	 would	 have	 independently	 given	 rise	 to	 a	 duty	 to	 defend.”		
Mitchell,	2011	ME	133,	¶	21,	36	A.3d	876	(citation	omitted).	
   	
                                                                                                            13	

D.	     Whether	Amica	is	Liable	for	Harlor’s	Settlement	

	       [¶20]	 	 Having	 determined	 that	 Amica	 breached	 its	 duty	 to	 defend,	 we	

now	 consider	 the	 proper	 measure	 of	 Harlor’s	 damages.	 	 Although	 Amica	

concedes	 that	 its	 breach	 of	 the	 duty	 to	 defend	 would	 render	 it	 liable	 for	 the	

attorney	 fees	 that	 Harlor	 incurred	 in	 the	 underlying	 action	 with	 the	 Primes	

and	 in	 the	 instant	 action	 for	 a	 declaratory	 judgment,5	 it	 argues	 that	 it	 is	 not	

liable	for	Harlor’s	payment	to	the	Primes	in	settlement	because	that	payment	

does	 not	 establish	 that	 the	 Primes	 actually	 sustained	 an	 injury	 covered	 by	

Harlor’s	homeowner’s	policy.		Harlor	argues	that	her	settlement	costs	should	

be	 awarded	 as	 consequential	 damages	 for	 Amica’s	 breach	 of	 the	 duty	 to	

defend,	and	that	Amica,	by	breaching	that	duty,	lost	the	right	to	hold	Harlor	to	

the	 burden	 of	 proving	 that	 she	 was	 liable	 for	 damages	 covered	 by	 her	

homeowner’s	policy.			

	       [¶21]		“Standard	.	.	.	liability	insurance	policies	are	contracts	between	an	

insurer	and	an	insured:	In	each,	the	insurer	makes	promises,	and	the	insured	

pays	 premiums,	 the	 one	 in	 consideration	 for	 the	 other,	 against	 the	 risk	 of	


    5		In	a	declaratory	judgment	“action	pursuant	to	Title	14,	chapter	707	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)	
(2015).		An	insurer’s	breach	of	the	duty	to	defend	damages	the	insured	“not	only	in	the	amounts	the	
insured	has	expended	in	defending	the	underlying	claim	but	also	in	the	amount	of	reasonable	costs	
the	insured	has	incurred	in	protecting	its	contractual	right	to	defense.”		Union	Mut.	Fire	Ins.	Co.,	441	
A.2d	at	1017.		
14	

loss.”		Aerojet-Gen.	Corp.	v.	Transp.	Indem.	Co.,	948	P.2d	909,	919	(Cal.	1997).		

An	 insurer’s	 unjustified	 refusal	 to	 defend	 its	 insured	 constitutes	 a	 breach	 of	

the	insurance	contract,	and	the	insured’s	claim	for	relief	is	analyzed	pursuant	

to	principles	of	contract	damages.		Elliott	v.	Hanover	Ins.	Co.,	1998	ME	138,	¶	

11,	 711	 A.2d	 1310.	 	 An	 award	 of	 damages	 to	 the	 insured	 for	 breach	 of	 an	

insurer’s	 duty	 to	 defend	 should	 therefore	 place	 the	 insured	 “in	 a	 position	

equally	 as	 good	 as	 the	 insured	 would	 have	 occupied	 had	 the	 insurance	

contract	 been	 fully	 and	 properly	 performed	 from	 the	 beginning.”	 	 Foremost	

Ins.	 Co.	 v.	 Levesque,	 2007	ME	 96,	 ¶	 10,	 926	 A.2d	 1185	 (quotation	 marks	

omitted).	

	     [¶22]	 	 An	 insurer’s	 breach	 of	 the	 duty	 to	 defend	 does	 not,	 when	

analyzed	pursuant	to	ordinary	principles	of	contract	law,	necessarily	warrant	

an	 award	 of	 damages	 to	 the	 insured	 in	 reimbursement	 of	 a	 judgment	 or	

settlement	related	to	the	ultimate	question	of	the	insured’s	liability.		We	“have	

repeatedly	stated	that	an	insurer’s	duty	to	indemnify	is	independent	from	its	

duty	to	defend.”		Elliott,	1998	ME	138,	¶	11,	711	A.2d	1310.		In	evaluating	an	

insurer’s	 liability	 for	 a	 settlement	 that	 potentially	 involves	 both	 covered	 and	

uncovered	claims	following	the	insurer’s	breach	of	the	duty	to	defend,	we	are	
                                                                                         15	

mindful	 of	 the	 distinction	 between	 that	 duty	 and	 the	 narrower	 duty	 to	

indemnify.	

	      [¶23]	 	 “[S]tandard	 .	 .	 .	 liability	 insurance	 policies	 provide	 that	 the	

insurer	 has	 a	 duty	 to	 indemnify	 the	 insured	 for	 those	 sums	 that	 the	 insured	

becomes	 legally	 obligated	 to	 pay	 as	 damages	 for	 a	 covered	 claim.”	 	 Aerojet-

Gen.	 Corp.,	 948	P.2d	 at	 919.	 	 This	 duty	 “runs	 to	 claims	 that	 are	 actually	

covered,	 in	 light	 of	 the	 facts	 proved.”	 	 Id.	 	 An	 insurer’s	 contractual	 duty	 to	

indemnify	 is	 thus	 “limited	 to	 so	 much	 of	 the	 judgment	 or	 settlement	 as	 was	

fairly	 allocable	 to	 the	 claims	 that	 were	 covered	 by	 the	 policy.”	 	 Charter	 Oak	

Fire	 Ins.	 Co.	 v.	 Hedeen	 &	 Cos.,	 280	F.3d	 730,	 738	 (7th	Cir.	2002)	 (quotation	

marks	 omitted)	 (alteration	 omitted).	 	 This	 narrow	 duty	 to	 reimburse	 the	

insured	 for	 liability	 for	 covered	 damages	 is	 unaltered	 by	 a	 breach	 of	 the	

independent	 duty	 to	 defend.	 	 See	 Esicorp,	 Inc.	 v.	 Liberty	 Mut.	 Ins.	 Co.,	

193	F.3d	966,	970-71	(8th	Cir.	1999)	(concluding	that	a	breach	of	the	duty	to	

defend	does	not	expand	the	duty	to	indemnify);	Ala.	Farm	Bureau	Mut.	Cas.	Ins.	

Co.	 v.	 Moore,	 349	 So.	 2d	 1113,	 1116	 (Ala.	 1977)	 (same).	 	 To	 award	 to	 the	

insured	the	entire	settlement	as	consequential	damages	after	a	breach	of	the	

duty	 to	 defend,	 when	 some	 claims	 against	 the	 insured	 were	 for	 covered	

damages	 and	 others	 were	 for	 uncovered	 damages,	 would	 “improperly	
16	

enlarge[]	 the	 bargained-for	 coverage.”	 	 Elliott,	 1998	 ME	 138,	 ¶	 11,	 711	 A.2d	

1310	(quotation	marks	omitted).	

        [¶24]	 	 For	 these	 reasons,	 we	 have	 held	 that	 an	 insurer	 does	 not,	 by	

breaching	the	duty	to	defend,	lose	the	right	to	assert	noncoverage	as	a	defense	

to	a	claim	for	indemnification	brought	by	the	insured.		Id.		However,	we	have	

also	held	that	if	an	insurer	wrongfully	declines	to	defend	a	claim,	it	assumes	

the	 burden	 of	 proving	 noncoverage.6	 	 Id.;	 accord	 Liquor	 Liab.	 Joint	

Underwriting	 Ass’n	 v.	 Hermitage	 Ins.	 Co.,	 644	N.E.2d	964,	 968	 (Mass.	 1995);	

Sentinel	Ins.	Co.	v.	First	Ins.	Co.,	875	P.2d	894,	914	(Haw.	1994)	(recognizing	a	

presumption	of	coverage	following	the	insurer’s	breach	of	the	duty	to	defend);	

Isaacson	v.	Cal.	Ins.	Guar.	Ass’n,	750	P.2d	297,	308	(Cal.	1988)	(same).	

        [¶25]		If	the	insurer	can	demonstrate	that	the	liability	of	the	insured	is	

entirely	 uncovered	 by	 the	 insured’s	 policy,	 the	 insurer	 is	 not	 liable	 for	 any	

obligations	 incurred	 by	 the	 insured	 in	 a	 settlement.	 	 McNicholes	 v.	 Subotnik,	

12	F.3d	 105,	 108	 (8th	 Cir.	 1993);	 Afcan	 v.	 Mut.	 Fire,	 Marine	 &	 Inland	 Ins.	 Co.,	

595	P.2d	 638,	 647	 (Alaska	 1979).	 	 However,	 “[i]t	 is	 not	 uncommon	 for	 a	

lawsuit	 against	 an	 insured	 to	 assert	 some	 claims	 that	 are	 covered	 by	 the	

insurance	 policy	 and	 others	 that	 are	 not.”	 	 Liberty	 Mut.	 Ins.	 Co.	 v.	 Metro.	 Life	

   6		By	contrast,	when	an	insured	brings	an	action	for	breach	of	an	insurer’s	contractual	obligation	

of	 indemnity,	 the	 burden	 of	 demonstrating	 coverage	 lies	 with	 the	 insured.	 	 Pelkey	 v.	 GE	 Capital	
Assurance	Co.,	2002	ME	142,	¶¶	8,	10,	804	A.2d	385.	
                                                                                          17	

Ins.	 Co.,	 260	F.3d	 54,	 63	 (1st	 Cir.	 2001).	 	 “When	 the	 insured	 settles	 a	 claim	

after	 the	 insurer	 has	 breached	 its	 duty	 to	 defend,	 it	 is	 clear	 the	 insurer	

remains	 obligated	 to	 reimburse	 the	 insured	 for	 any	 settlement	 obligation	

covered	 by	 the	 liability	 policy.”	 	 Royal	 Ins.	 Co.	 of	 Am.	 v.	 Kirksville	 Coll.	 of	

Osteopathic	 Med.,	 304	 F.3d	 804,	 806-07	 (8th	 Cir.	 2002).	 	 Therefore,	 a	

“settlement	encompassing	both	covered	and	noncovered	claims	must	be	fairly	

apportioned	 between	 the	 two.”	 	 Id.	 at	 807	 (quotation	 marks	 omitted).	 	 The	

burden	 of	 establishing	 an	 appropriate	 apportionment	 of	 liability	 between	

covered	 and	 uncovered	 claims	 falls	 on	 the	 insurer.	 	 See	 Liberty	 Mut.	 Ins.	 Co.,	

260	F.3d	at	63.		If	the	insurer	cannot	meet	this	burden	of	proof,	it	may	be	held	

liable	for	the	entire	settlement.		See	Liquor	Liab.	Joint	Underwriting	Ass’n,	644	

N.E.2d	at	969	&	n.6.	

       [¶26]	 	 Here,	 further	 proceedings	 are	 necessary	 to	 determine	 whether	

and	to	what	extent	Amica	is	required	to	indemnify	Harlor	for	the	amount	that	

she	paid	to	settle	the	underlying	action	with	the	Primes.	

       The	entry	is:	

                     Summary	 judgment	 in	 favor	 of	 Amica	 vacated.		
                     Remanded	 for	 the	 entry	 of	 summary	 judgment	
                     in	 favor	 of	 Harlor,	 declaring	 that	 Amica	
                     breached	 its	 duty	 to	 defend,	 and	 for	 further	
                     proceedings	 regarding	 Amica’s	 duty	 to	
18	

                    indemnify	 Harlor	 for	 any	 or	 all	 of	 the	 sum	 that	
                    she	paid	to	settle	the	underlying	action.	
                    	
                             	      	      	      	        		

ALEXANDER,	J.,	concurring.		

      [¶27]	 	 I	 concur	 in	 the	 result	 to	 vacate	 the	 trial	 court’s	 decision,	 but,	

respectfully,	 I	 do	 not	 concur	 in	 the	 Court’s	 reasoning,	 and	 I	 write	 to	 ensure	

that	 the	 Court’s	 analysis	 is	 not	 over-read.	 	 This	 action	 involves	 a	 standard	

contract	dispute.		The	Court’s	opinion,	based	entirely	on	the	law	regarding	the	

duty	 to	 defend,	 should	 not	 be	 read	 to	 support	 any	 interpretation	 of	 law	

beyond	what	is	necessary	to	decide	this	case.		In	other	words,	it	should	not	be	

read	 to	 allow	 every	 two-party	 contract	 dispute	 to	 include	 a	 tortious	

interference	 with	 an	 advantageous	 relationship	 claim	 with	 a	 potential	 for	

recovery	of	emotional	distress	damages.	

                                   I.		CASE	HISTORY	

      [¶28]	 	 For	 purposes	 of	 this	 duty	 to	 defend	 action,	 there	 is	 no	 dispute	

about	 the	 essential	 facts.	 	 Dawn	 Harlor	 and	 the	 Primes	 had	 an	 agreement	

allowing	 the	 Primes	 to	 use	 Harlor’s	 dock,	 subject	 to	 a	 boat	 size	 limit.	 	 The	

Primes	 made	 some	 improvements	 to	 Harlor’s	 dock	 that,	 the	 Primes	

contended,	 was	 consideration	 for	 an	 agreement	 by	 Harlor	 to	 allow	 larger	

boats	to	use	the	dock.	
                                                                                   19	

      [¶29]	 	 The	 Primes’	 complaint	 alleged	 that	 when	 Harlor	 later	 sold	 the	

dock,	 she	 refused	 to	 honor	 the	 terms	 of	 the	 agreement	 regarding	

improvements	 to	 the	 dock	 and	 made	 false	 statements	 to	 obtain	 the	 Primes’	

agreement	 to	 a	 written	 “Confirmation	 of	 Easement”	 that	 may	 not	 have	

reflected	the	removal	of	the	boat	size	restriction.		The	Primes	further	alleged	

that	following	Harlor’s	sale	of	the	dock,	Harlor	refused	to	confirm	the	Primes’	

right	to	use	the	dock	for	larger	boats	and	made	false	statements	regarding	the	

Primes’	right	to	use	the	dock.		Harlor’s	actions,	the	Primes	alleged,	resulted	in	

uncertainty	 regarding	 their	 right	 to	 use	 the	 dock	 and	 prevented	 the	 Primes	

from	selling	their	property	with	value	added	from	the	enhanced	use	easement	

that	the	Primes	alleged	was	established	by	contract.	

                 II.		THE	TORTIOUS	INTERFERENCE	CLAIM	
                                      	
      [¶30]	 	 We	 have	 outlined	 the	 elements	 of	 a	 claim	 for	 tortious	

interference	 with	 a	 contract	 or	 advantageous	 relationship,	 including	 the	

essential	 fraud	 or	 intimidation	 elements,	 in	 numerous	 opinions	 dating	 back	

nearly	 120	 years.	 	 Our	first	 opinion	 recognizing	 an	 action	 for	 tortious	

interference	with	a	contract—there	a	contract	for	employment—was	Perkins	

v.	Pendleton,	90	Me.	166,	38	A.	96	(1897).		In	Perkins,	after	an	extensive	review	
20	

of	 precedents	 from	 other	 jurisdictions,	 we	 approved	 a	 tortious	 interference	

action,	using	language	similar	to	language	we	use	today.	

       [W]herever	a	person,	by	means	of	fraud	or	intimidation,	procures,	
       either	the	breach	of	a	contract	or	the	discharge	of	a	plaintiff,	from	
       an	 employment,	 which	 but	 for	 such	 wrongful	 interference	 would	
       have	 continued,	 he	 is	 liable	 in	 damages	 for	 such	 injuries	 as	
       naturally	result	therefrom	.	.	.	.	
       	
Id.	at	176,	38	A.	at	99.	

	     [¶31]	 	 Later	 opinions	 addressing	 the	 elements	 of	 a	 claim	 for	 tortious	

interference	 with	 a	 contract	 or	 advantageous	 relationship	 include:	 Currie	 v.	

Industrial	 Security,	 Inc.,	 2007	 ME	 12,	 ¶¶	 31-34,	 915	A.2d	 400;	 Rutland	 v.	

Mullen,	2002	ME	98,	¶¶	13-15,	798	A.2d	1104;	James	v.	MacDonald,	1998	ME	

148,	 ¶¶	6-7,	 712	A.2d	 1054;	 Petit	 v.	 Key	 Bank	 of	 Me.,	 688	 A.2d	 427,	 430	

(Me.	1996);	 Barnes	 v.	 Zappia,	 658	 A.2d	 1086,	 1090	 (Me.	 1995);	 Pombriant	 v.	

Blue	Cross/Blue	Shield	of	Maine,	562	A.2d	656,	659	(Me.	1989);	MacKerron	v.	

Madura,	 445	 A.2d	 680,	 683	 (Me.	 1982);	 Taylor	 v.	 Pratt,	 135	 Me.	 282,	 284,	

195	A.	205,	206	(1937).	

      [¶32]		In	each	case	from	Perkins	forward,	the	plaintiff	had	a	contractual	

relationship	 with	 or	 anticipated	 a	 beneficial	 economic	 relationship	 with	 an	

identified	 third	 party.	 	 The	 relationships	 with	 the	 identified	 third	 parties	

included:	 employment,	 personal	 or	 professional	 services,	 or	 a	 contract	 or	
                                                                                         21	

anticipated	contract	for	purchase	or	sale	of	goods	or	services.		The	plaintiff’s	

action	 was	 then	 brought	 against	 the	 defendant	 for	 alleged	 interference	 with	

the	plaintiff’s	contractual	or	anticipated	beneficial	economic	relationship	with	

the	identified	third	party.			

       [¶33]	 	 In	 Currie,	 we	 outlined	 the	 elements	 of	 a	 tortious	 interference	

claim	 as	 follows:	 “Tortious	 interference	 with	 a	 prospective	 economic	

advantage	requires	a	plaintiff	to	prove:	(1)	that	a	valid	contract	or	prospective	

economic	 advantage	 existed;	 (2)	 that	 the	 defendant	 interfered	 with	 that	

contract	 or	 advantage	 through	 fraud	 or	 intimidation;	 and	 (3)	 that	 such	

interference	proximately	caused	damages.”		2007	ME	12,	¶	31,	915	A.2d	400	

(quoting	Rutland	v.	Mullen,	2002	ME	98,	¶	13,	798	A.2d	1104).			

       [¶34]		Our	precedents	advise	that	a	person	engages	in	fraud	when	that	

person	 (here,	 allegedly,	 Harlor):	 (1)	 makes	 a	 false	 representation;	 (2)	 of	 a	

material	 fact;	 (3)	 with	 knowledge	 of	 its	 falsity	 or	 in	 reckless	 disregard	 of	

whether	it	is	true	or	false;	(4)	for	the	purpose	of	inducing	another	to	act	or	to	

refrain	 from	 acting	 in	 reliance	 on	 it;	 and	 (5)	 the	 third	 person	 (here,	 a	

prospective	 purchaser	 unknown	 to	 Harlor)	 justifiably	 relies	 on	 the	

representation	 as	 true	 and	 acts	 upon	 it,	 damaging	 the	 plaintiff	 (here,	 the	

Primes).	 	 Petit,	 688	 A.2d	 at	 430.	 	 There	 is	 no	 allegation	 that	 Harlor	 directly	
22	

communicated	with	any	prospective	purchaser.		Harlor,	never	having	known	

or	communicated	with	prospective	purchasers,	could	not	have	committed	the	

fraud	element	of	the	Primes’	claim.	

      [¶35]	 	 Our	 precedents	 advise	 that	 a	 person	 engages	 in	 intimidation	

when	that	person	(here,	allegedly,	Harlor):	(1)	communicates	a	statement	or	

threat	 to	 a	 third	 person	 (here,	 a	 prospective	 purchaser	 unknown	 to	 Harlor);	

(2)	 that	 suggests	 adverse	 physical,	 economic,	 or	 emotional	 consequences	 to	

the	third	person;	(3)	for	the	purpose	of	inducing	the	third	person	to	act	or	fail	

to	act	regarding	the	plaintiff	(here,	the	Primes);	and	(4)	the	third	person	acts	

based	on	the	statement	or	threat,	damaging	the	plaintiff.		See	Currie,	2007	ME	

12,	 ¶¶	31-33,	 915	 A.2d	 400.	 	 In	 Pombriant,	 we	 held	 that	 intimidation	 exists	

wherever	a	defendant	has	procured	a	breach	of	contract	by	“making	it	clear”	

to	the	third	party	with	whom	the	plaintiff	had	contracted	that	the	only	manner	

in	which	that	party	could	avail	itself	of	a	particular	benefit	of	working	with	the	

defendant	 would	 be	 to	 breach	 the	 third	 party’s	 contract	 with	 plaintiff.		

562	A.2d	at	659.	

      [¶36]	 	 Harlor,	 never	 having	 known	 or	 communicated	 with	 prospective	

purchasers,	could	not	have	committed	the	intimidation	element	of	the	Primes’	

tortious	 interference	 claim.	 	 On	 the	 facts	 established	 by	 the	 pleadings,	 there	
                                                                                      23	

was	 no	 basis	 in	 law	 for	 the	 Primes	 to	 maintain	 a	 tortious	 interference	 claim	

against	Harlor.	

                     III.		THE	DUTY	TO	DEFEND	OBLIGATION	

      [¶37]		To	determine	whether	there	is	a	potential	for	insurance	coverage,	

we	 compare	 the	 underlying	 complaint	 with	 the	 coverage	 provided	 “in	 the	

insurance	policy.”		Mitchell	v.	Allstate	Ins.	Co.,	2011	ME	133,	¶	9,	36	A.3d	876.		

An	 insurer	 has	 a	 duty	 to	 defend	 only	 “if	 there	 is	 any	 potential	 that	 facts	

ultimately	 proved	 could	 result	 in	 coverage,”	 Id.	 ¶	 10	 (emphasis	 in	 original),	

irrespective	 of	 whether	 the	 insurer	 is	 ultimately	 required	 to	 indemnify	 the	

insured,	York	Ins.	Group	of	Me.	v.	Lambert,	1999	ME	173,	¶	8,	740	A.2d	984.		

      [¶38]	 The	 Primes	 and	 Harlor	 were	 engaged	 in	 an	 ordinary	 contract	

dispute	over	whether	the	Primes’	improvements	to	the	dock	entitled	them	to	

the	benefit	of	a	bargain	that	expanded	their	right	to	use	the	dock.		Emotional	

distress	damages	are	generally	not	recoverable	for	breach	of	contract	claims,	

because	recovery	is	limited	to	those	harms	that	were	reasonably	anticipated	

by	the	parties	at	the	time	the	contract	was	formed	and	would	be	expected	to	

flow	 naturally	 from	 breach	 of	 the	 contract.	 	 Rubin	 v.	 Matthews	 Int’l	 Corp.,	

503	A.2d	694,	696	(Me.	1986).	
24	

       [¶39]	 	 Exceptions	 to	 this	 rule	 exist	 only	 when	 breach	 of	 the	 contract	

results	 in	 bodily	 harm,	 or	 when	 severe	 emotional	 distress	 is	 “a	 particularly	

likely	 result	 of	 a	 breach,”	 such	 as	 “contracts	 for	 the	 carriage	 and	 proper	

disposition	 of	 dead	 bodies	 and	 .	 .	 .	 contracts	 for	 the	 delivery	 of	 messages	

concerning	death.”		McAfee	v.	Wright,	651	A.2d	371,	372-73	&	n.4	(Me.	1994).		

See	 also	 In	 re	 Hannaford	 Bros.	 Co.	 Customer	 Data	 Sec.	 Breach	 Litig.,	 2010	 ME	

93,	 ¶	 15,	 4	 A.3d	 492	 (“[E]motional	 distress	 suffered	 as	 a	 result	 of	 breach	 of	

contract	 is	 ordinarily	 not	 recoverable	 unless	 it	 is	 accompanied	 by	 physical	

injury	or	it	results	in	serious	emotional	disturbance	due	to	the	nature	of	the	

contract.”	 (citing	 Marquis	 v.	 Farm	 Family	 Mut.	 Ins.	 Co.,	 628	 A.2d	 644,	 651	

(Me.	1993)	and	other	precedents)).		

       [¶40]		Here,	the	Primes	did	not	seek	emotional	distress	damages.		Thus,	

Amica	 has	 no	 duty	 to	 indemnify	 for	 any	 amounts	 paid	 in	 the	 settlement.		

However,	 the	 Primes	 did	 include	 a	 tortious	 interference	 claim	 in	 their	

complaint.			

       [¶41]	 	 I	 concur	 that	 a	 duty	 to	 defend	 exists	 based	 on	 the	 potential	 for	

recoverable	 damages.	 	 Likewise,	 I	 concur	 that	 courts	 should	 not	 engage	 in	

fact-finding	 when	 determining	 whether	 an	 insurer	 has	 a	 duty	 to	 defend	 its	

insured.	 	 An	 insurer	 has	 a	 duty	 to	 defend	 a	 baseless	 claim,	 if	 covered	 by	 the	
                                                                                      25	

terms	 of	 its	 homeowner’s	 policy,	 because	 the	 alternative	 may	 leave	 the	

homeowner	defenseless	and	subject	to	default	for	that	baseless	claim.			

      [¶42]	 	 But	 that	 duty	 to	 defend	 does	 not	 extend	 to	 other	 associated	

claims	 not	 covered	 by	 the	 homeowner’s	 policy.	 	 Here,	 because	 the	 tortious	

interference	 claim	 was	 asserted,	 Amica	 had	 a	 limited	 duty	 to	 appear	 and	

defend	 the	 action	 as	 long	 as	 it	 included	 the	 tortious	 interference	 claim,	 but	

with	a	reservation	of	rights	that	did	not	obligate	Amica	to	defend	or	indemnify	

the	other,	valid	contract	claims	that	apparently	led	Harlor	to	settle	the	action	

with	the	Primes.			

      [¶43]	 	 I	 agree	 with	 the	 trial	 court	 that	 there	 was	 no	 meaningful	

possibility—in	fact	no	possibility	at	all—that	the	underlying	suit	could	result	

in	damages	covered	by	the	Amica	policy.		The	best	practice	would	have	been	

to	separate	out	consideration	of	the	tortious	interference	claim	and	have	the	

court	 proceed	 to	 determine	 Amica’s	 responsibility	 to	 defend	 that	 claim,	

presumably	by	a	quick	and	successful	motion	to	dismiss.			

      [¶44]	 	 Any	 remand	 should	 limit	 the	 separate	 duty	 to	 indemnify	 to	 this	

narrow	assessment	of	responsibility	for	attorney	fees	and	costs	of	defense.		It	

should	 not	 seek	 assessment	 of	 responsibility	 to	 defend	 the	 entire	

contract-based	suit,	and	it	should	not	change	our	law	to	remove	the	necessity	
26	

of	 identifying	 a	 third	 party	 whose	 relationship	 was	 interfered	 with	 in	 a	

tortious	interference	claim.	

	     	     	       	    	       	
	
On	the	briefs:	
	
      James	 D.	 Poliquin,	 Esq.,	 Norman,	 Hanson	 &	 DeTroy,	 LLC,	 Portland,	 for	
      appellant	Dawn	M.	Harlor	
      	
      Martica	 S.	 Douglas,	 Esq.,	 Douglas,	 Denham,	 Buccina	 &	 Ernst,	 Portland,	
      for	appellee	Amica	Mutual	Insurance	Company	
	
	
At	oral	argument:	
	
      Benjamin	 N.	 Donahue,	 Esq.,	 Norman,	 Hanson	 &	 DeTroy,	 LLC,	 Portland,	
      for	appellant	Dawn	M.	Harlor	
      	
      Martica	S.	Douglas,	Esq.,	for	appellee	Amica	Mutual	Insurance	Company	
	
	
	
Knox	County	Superior	Court	docket	number	CV-2013-30	
FOR	CLERK	REFERENCE	ONLY	
