
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 Quinn            ________________           _____________________      ____________        were on brief for appellant.            Daniel P.  Carter with  whom Michael  R. Luongo  and Jayne  Conroy            _________________            __________________      _____________        were on brief for appellee.                                 ____________________                                    July 25, 1995                                 ____________________               COFFIN,  Senior  Circuit  Judge.   This  appeal  raises  the                        ______________________          question  whether an insurance carrier  has a duty  to defend and          indemnify  its  insured  against  lawsuits currently  pending  in          Massachusetts  courts under  two Comprehensive  General Liability          insurance policies.  The  district court granted summary judgment          in favor of the carrier, and the insured appeals.  Concluding, on          the  present state of the  record, that the  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  Partnership,          Inc.   (Metropolitan),  and  one  of  its  predecessor  entities,          Metropolitan Housing, Inc. (MHI).   Metropolitan, like MHI before          it,   disburses   federal   and  state   housing   subsidies   to          participating   landlords  and  tenants.1    Metropolitan  issues          Certificates  of  Participation  to  eligible tenants,  who  then          search  the private rental housing market.  Once a tenant locates          a suitable unit,  Metropolitan steps in  and negotiates the  rent          with the property's landlord.  Metropolitan and the landlord then          enter into an agreement regarding the payment of  rent subsidies,          and the tenant  and landlord  sign a lease.   Metropolitan  never                                        ____________________               1  MHI  and  Metropolitan   were  formed  to  privatize  the          functions  previously  performed   by  the  Metropolitan  Housing          Assistance  Program  of  the  Massachusetts  Executive  Office of          Communities and Development.                                         -2-          becomes  a  party  to  the  lease,  nor  acquires  any possessory          interest in the apartments.               Before  agreeing   to  subsidize  a   particular  apartment,          Metropolitan inspects the premises to insure that federal Housing          Quality Standards  are satisfied.   A Metropolitan representative          visits the  apartment and,  after visual inspection,  completes a          checklist  confirming  the number  and  types  of rooms,  whether          sinks, stoves,  and refrigerators  are in working  order, and  so          forth.  Metropolitan's inspectors never  test for the presence of          lead  paint.   Instead,  they simply  note  whether the  paint is          chipped  or peeling,  and whether  the landlord  has a  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.               Despite  this rather  limited  role,  Metropolitan has  been          named  as  a   defendant  or  third   party  defendant  in   five          Massachusetts state lawsuits alleging personal injury due to lead          paint exposure  of minors at  Metropolitan-subsidized apartments.          These suits  assert a number of different  legal theories against          Metropolitan, many of which  are based on its alleged  failure to          inspect adequately  for lead  paint before agreeing  to subsidize          the apartments.               GRE  filed  this  diversity  action  seeking  a  declaratory          judgment  that it  had  no  obligation  to  defend  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  relevant policy language,  would          expect to be  covered."   Trustees of Tufts  Univ. v.  Commercial                                    ________________________     __________          Union  Ins. Co.,  415 Mass. 844,  849, 616  N.E.2d 68,  72 (1993)          _______________          (quoting  Hazen Paper  Co. v. United  States Fidelity  & Guaranty                    ________________    ___________________________________          Co., 407 Mass.  689, 700, 555  N.E.2d 576,  583 (1990)).   Absent          ___          ambiguity,  we  give  policy  language  its  plain  and  ordinary          meaning.   E.g., Cody v.  Connecticut General Life  Ins. Co., 387                     ____  ____     __________________________________          Mass.  142, 146,  439 N.E.2d  234, 237  (1982).   Ambiguities are          resolved against  the insurer,  who drafted  the  policy, and  in          favor  of  the  insured.    Thus,  if  "there  are  two  rational          interpretations of  policy language,  the insured is  entitled to          the benefit of the one that is more favorable to it."  Hazen, 407                                                                 _____          Mass.  at 700, 555 N.E.2d at 583.   The insured bears the initial          burden  of proving  that  a  claim  falls  within  the  grant  of          coverage,  which, once  established, shifts  the burden  onto the          insurer to show the applicability of any exclusion.  Camp Dresser                                                               ____________          & McKee, Inc. v. Home Ins.  Co., 30 Mass. App. Ct. 318, 321,  568          _____________    ______________          N.E.2d 631, 633 (1991).                                        ____________________               2 The parties agree that Massachusetts law controls.                                         -4-               To determine if  a liability policy  obligates a carrier  to          defend claims  made against  its insured,  we simply  compare the          underlying complaint  to the policy;  "if the allegations  of the          complaint are `reasonably susceptible' of an  interpretation that          they state or adumbrate a claim  covered by the policy terms, the          insurer  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,  461 N.E.2d 209, 212  (1984)) (internal quotation          omitted).   At issue here are two  combined comprehensive general          liability  and commercial  property insurance  policies.   In the          Insuring Agreement  of the  general liability coverage  part, GRE          promised to:               pay those sums that [Metropolitan] becomes legally obligated               to pay as damages because of `bodily injury' . .  . to which               this insurance applies. . . .  The `bodily injury'. . . must               be caused  by an `occurrence.'   The `occurrence'  must take               place in the `coverage  territory.'  We will have  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,  and that  the  occurrences took  place          within the relevant  coverage territory.   Thus, unless a  policy          exclusion  effectively defeats  this  grant of  coverage, GRE  is          obligated to defend and indemnify the underlying lawsuits against          Metropolitan.               The district  court relied upon  two grounds, both  of which          GRE urges upon us, for holding that there is no  coverage: first,          that  the  policies  are   restricted  to  liability  arising  at                                         -5-          Metropolitan's  home  office;  and second,  that  the  underlying          claims  fall within  a  policy exclusion  relating to  inspection          services.  We examine these propositions in turn.          A.   Was Coverage Limited to Metropolitan's Office?               _____________________________________________               GRE argues that the  policy does not apply to  liability for          claims arising from Metropolitan's  activities away from its home          office, relying  upon language in the  policy's Declarations form          and  two  supplemental schedules,  and  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  language, the "Common Policy Declarations          Form"  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  policy number,  and  so forth.    It  also          contains the operative  sentence: "In return  for the payment  of          the premium,  and subject to  all the  terms of  this policy,  we          agree  with  you  to provide  the  insurance  as  stated in  this          policy."  GRE seizes on  the fact that the next line of  the form          calls  for a  "business  description" of  the  insured, which  is          listed as "office," as evidence that only liability  arising from          Metropolitan's  office operations was covered.   The flaw in this          reasoning is that  the question  calls for a  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.  But it does          not show a clear understanding  to restrict coverage to liability          arising out of Metropolitan's office only.               A  somewhat closer  question is  presented by  language that          appears in  the insurance schedules.   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  premises owned, rented or controlled  by the          named insured."  The "Common Policy Premises Schedule," under the          heading "Premises," lists "434 Massachusetts Avenue, Boston, MA,"          i.e., the  location of  Metropolitan's office.   Further,  on the          "Comprehensive    General   Liability    Insurance   Supplemental          Schedule,"  the "Description of Hazards Classification" is listed          as "Buildings  or  Premises --  Office,"  and the  "Exposure"  is          listed   as   "15,000"  square   feet,   roughly   the  area   of          Metropolitan's  office.   GRE  argues that  this shows  that only          those risks arising out  of Metropolitan's office activities were          covered.               Based  on a recent decision of the Supreme Judicial Court of          Massachusetts, however,  we cannot agree.   In Trustees  of Tufts                                                         __________________          University v.  Commercial Union  Ins. Co., the  insurance carrier          __________     __________________________          argued that the failure to include a certain risk on the schedule          of hazards to a  comprehensive general liability insurance policy          removed  any coverage  for  that risk.    The SJC  rejected  that          argument,  holding   simply   that  "nowhere   does  the   policy          unambiguously provide  that coverage  is limited to  the specific                                         -7-          hazards listed in the schedule."  415 Mass. at 856, 616 N.E.2d at          76.               In  the instant  case, there  is no  language in  the policy          clearly indicating that liability  insurance is limited to claims          arising from occurrences at the premises listed  on the schedules          from  which we  have  quoted.3   This absence  is made  even more          probative  when compared to the presence of such language on both          the  coverage grant description and the declarations form for the          property coverage  part of the policy.   The grant of coverage on          ________          the property part states  that: "We will pay for  direct physical          loss of or damage  to Covered Property at the  premises described                                                 __________________________          in the Declarations caused by or resulting from any Covered Cause          ___________________          of Loss" (emphasis added).  The property declarations form, under          the  heading "Coverages  Provided,"  states  that  the  insurance          "applies  only to the premises  shown below, and  with respect to          those premises, only for the coverages, causes of loss and limits          shown."    By reference  to  the  common  premises schedule,  the          "premises  shown  below" is  Metropolitan's  office  space.   The          failure  to  include  such  language anywhere  in  the  liability                                                                  _________          coverage  part, under  Tufts, is  fatal to  GRE's claim  that its                                 _____          comprehensive liability  insurance was converted into a premises-                                        ____________________               3  We  reject  GRE's  citation  to  the  "products-completed          operations   hazard"  exclusion  as  a  sufficiently  unambiguous          statement  of such  a  limitation.   As  GRE recognized  at  oral          argument, that provision applies  when a completed product causes          injury  or property  damage  after it  leaves  the hands  of  its          manufacturer.   It excludes  from coverage liability  that arises          after an insured's  operations are completed, not, as  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   was   not  limited   to   occurrences   at          Metropolitan's  office.    First,  for  an  additional   premium,          Metropolitan  purchased  a  so-called "Broad  Form  Comprehensive          Liability"  endorsement  for  the   1990-91  policy,  which   was          incorporated into the 1991-92  policy.  This endorsement expanded          the  coverage territory to "anywhere in the world with respect to                                      _____________________          [injuries]  arising  out  of  the activities  of  [the]  insured"          (emphasis added).   We find  it quite unlikely  that parties  who          intended  coverage only  for  activities at  Metropolitan's  home          office at 434  Massachusetts Avenue in  Boston would have  bought          and  sold  such  an  endorsement.    Certainly,  an  "objectively          reasonable insured, reading [this]  policy language, would expect          to  be covered"  for liability  beyond that  arising at  its home          office.  Tufts, 415 Mass. at 849, 616 N.E.2d at 72.                   _____               Second,  as   part   of  its   application  for   insurance,          Metropolitan,  through  its  broker,  made a  specific  point  of          telling  GRE  that it  hired outside  "inspectors"  to go  to the          apartments  and  determine  whether they  satisfied  the relevant          federal  standards  so as  to qualify  for  the subsidy.   Having          received this  information, GRE sold Metropolitan  policies that,          as  their titles  made clear,  purported to  cover "comprehensive          general liability."  Thus, absent express  exclusionary language,                                         -9-          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  from the  inspectors' activities.   Among  other things,          that  endorsement  expressly  excluded from  coverage  any claims          "arising  out  of   the  rendering  or  failure  to   render  any          professional services  . .  . including  . . .  inspection .  . .          services."  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  also gave weight to the relatively small          amount  of   the   premium  as   evidence  that   no  more   than          Metropolitan's  office activities  were covered.   While  we also          find the  premium to  be relatively  low, we  do not  believe the          amount of the premium to be dispositive.  First, if GRE wanted to          press  this argument  seriously, it  could have  submitted expert          testimony  regarding  the  premium  amount  here  versus premiums          charged  for comparable risks.  Instead, on this record, there is          no  factual basis  whatsoever  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  low premium.  GRE may have concluded that Metropolitan faced          very  little  liability exposure  because  it  was essentially  a          disbursing agent for government  funds, which, even including the                                         -10-          apartment inspections, may  not have been  seen as an  enterprise          generating large risks.   Or, GRE's calculus of low  exposure may          have been  influenced by a  Massachusetts statute, Mass.  Gen. L.          ch. 231   85K, which limits liability of non-profit organizations          to  a $20,000 per  claim cap.   Or, it could  have calculated the          premium erroneously, overlooking  the apartment inspection aspect          of Metropolitan's operations.   Thus, without  a fact finding  on          the  circumstances  surrounding  premium  calculation   based  on          competent  evidence, our general view  is that the  amount of the          premium will  rarely be dispositive in determining  the extent of          coverage, for such a rule would allow  poor estimates of risk, or          calculations of risk based  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.  In Chesapeake  Physicians Prof. Ass.  v. The Home                             _________________________________     ________          Ins. Co., 92  Md. App. 385,  608 A.2d 822  (1992), the court  was          ________          faced  with a question similar to ours -- whether a comprehensive          general liability insurance  policy was in fact  limited to cover          only certain  premises -- and determined  that it was.   But that          court's  holding was based upon the fact that the policy language          itself clearly limited coverage to the premises in question.  The          "key language" was  the carrier's promise to indemnify and defend          all  claims "arising out of the ownership, maintenance, or use of                                                                         __          the insured premises and all operations incidental thereto."  Id.          ____________________                                          ___          at  394, 608  A.2d at 826  (emphasis added).   As  we have noted,          GRE's  liability policies have a conspicuous lack of such express                                         -11-          language limiting coverage to Metropolitan's office.  It is  true          that  the Chesapeake  court  went  on  to  discuss  a  number  of                    __________          considerations that buttressed its decision, one of which was the          fact, also present in  our case, that the premium  was calculated          based  on  the  square  footage of  the  properties  and premises          covered.   But,  as this  was  in the  context of  a policy  that          unambiguously limited coverage to certain premises by its express          terms, it  has  little, if  any,  relevance to  interpreting  the          meaning  of the  instant  policy --  particularly  after 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  of only certain square footage  to calculate          the  premium showed that only certain premises were covered.  The          trial  court  rejected that  argument,  a ruling  from  which the                        ________          insurance company did not  even appeal.  Instead, the  only issue          on  appeal  was the  insurance  company's  alleged bad  faith  in          refusing to provide coverage.   In the context of  resolving that          issue,  the Supreme  Court of  Rhode Island  stated that  the low          premium  and the square footage calculation  created "at least an          arguable  basis  for  denying  coverage."   Since  the  insurance          company's  contention was "not  a frivolous one,"  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  policy contains  a  professional  services  exclusion,          which  removes  from  coverage  liability  "arising  out  of  the          rendering or  failure to render  any professional services  by or          for you, including .  . . supervisory, inspection  or engineering          services."    The  district  court found  that  this  endorsement          "plainly  omits  coverage  for any  inspection  service  (however                                         ___          `professional'  it might  be)."  GRE  Ins. Group  v. Metropolitan                                           _______________     ____________          Boston Housing Part., Inc.,  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  types of excluded professional services  as          examples.  The  examples themselves  cannot be  broader than  the          category  they exemplify; they  are nothing more  than subsets of          "professional  services."    Thus,  only  inspections   that  are          "professional," as opposed to "nonprofessional," fall within  the          endorsement.  See Atlantic  Mut. Ins. Co. v. McFadden,  413 Mass.                        ___ _______________________    ________          90,  92, 95, 595 N.E.2d  762, 764, 765  (1992) (employing similar          reasoning  in finding  that lead  paint exposure  was  not within          pollution exclusion, which defined pollutant as "any contaminant,          including smoke, vapor,  soot, fumes,  acids, alkalis,  chemicals          and waste,"  because  of additional  requirement  of  "discharge,          dispersal, release or escape" of pollutant).                                         -13-               In  Roe v. Federal  Ins. Co., 412  Mass. 43, 587  N.E.2d 214                   ___    _________________          (1992),  the Supreme  Judicial  Court applied  a formulation  for          assessing the applicability of a  professional services exclusion          that  we find instructive in the instant  case.  To be engaged in          professional services,                "[s]omething more  than an act flowing  from mere employment               or vocation is  essential.  The act or  service must be such               as  exacts  the use  or application  of special  learning or               attainments of some  kind.   The term `professional'  . .  .               means   something  more   than  mere   proficiency  in   the               performance of a task and implies intellectual skill . . . .               A  `professional' act  or service  is one  arising out  of a               vocation,  calling,  occupation,  or   employment  involving               specialized  knowledge, labor,  or  skill and  the labor  or               skill  involved  is  predominantly mental  or  intellectual,               rather  than physical  or  manual. .  .  .   In  determining               whether a particular act  is . . . a  `professional service'               we must  look not  to the title  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  Neb.  12, 13,  157  N.W.2d  870, 872  (1968)          ______________          (citations omitted)).  The cases collected in Roe all analyze the                                                        ___          applicability of professional  services exclusions by determining          whether the relevant  activity was "professional" in nature.  See                                                                        ___          Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979,  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  services  exclusion  applies  to  ambulance          personnel's provision  of emergency  medical  services); Bank  of                                                                   ________          California,  N.A. v. Opie, 663  F.2d 977, 981-82  (9th Cir. 1981)          _________________    ____          (professional  services exclusion  applies  to mortgage  broker's          management of loan proceeds).  Therefore, we reverse the district                                         -14-          court's decision  that all inspections were  necessarily excluded          under  this  endorsement,  and  remand  for  a  determination  of          whether,  under  Massachusetts  law,   Metropolitan's  inspectors          performed professional services.               Even  if   Metropolitan's  inspections  are   found  to   be          professional in nature, however,  GRE would still have to  defend          the  underlying lawsuits  --  at least  initially.   This  is  so          because,   after   reviewing   the   complaints   filed   against          Metropolitan,  we  find  that  some of  the  claims  raise  legal          theories of recovery broader  than inadequate inspections.  Taken          collectively,   the   claims   include    negligence,   negligent          misrepresentation,  negligently  creating   a  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  their  face,  these  claims  are  "reasonably          susceptible" of  being read to  "state or adumbrate"  claims that          are beyond  the inspection  services exclusion.   Liberty Mutual,                                                            ______________          412 Mass. at 330,  588 N.E.2d at 1347 (quoting  Continental Cas.,                                                          ________________          391 Mass. at  146, 461 N.E.2d at 212).   For example, the claimed          failure  to  correct a  lead paint  risk appears  to rest  on the          theory  that the very provision of rent subsidies carried with it          the   responsibility   to  make   whatever   lead   paint  safety          improvements  were necessary.  Other claims might be based on the          theory  that the  inspections  were all  perfectly adequate,  but                                         -15-          Metropolitan's  follow up  with the landlords  was lacking.   See                                                                        ___          Sterilite Corp. v. Continental  Cas. Co., 17 Mass. App.  Ct. 316,          _______________    _____________________          318,  458  N.E.2d  338, 341  (1983)  ("[T]he  process  is one  of          envisaging  what kind of losses may be proved as lying within the                                          ___          range  of  the  allegations  of the  complaint,  and  then seeing          whether  any  such  loss   fits  the  expectation  of  protective          insurance  reasonably generated  by  the terms  of the  policy.")          (emphasis  added); cf.  Complaint of  Stone Petroleum  Corp., 961                             ___  ____________________________________          F.2d 90,  91-92 (5th Cir.  1992) (general liability  insurer must          defend  suits  because   they  contain  claims  that,   liberally          construed, are  beyond the professional services  exclusion).  We          express  no view  on whether  such expansive  theories ultimately          will be successful against Metropolitan, and thus GRE.4                Therefore, because certain of the claims are  not within the          professional services  exclusion, GRE is obligated  to defend the          underlying  suits  notwithstanding the  possibility  that certain          other claims might be found to be excluded.  See Camp Dresser, 30                                                       ___ ____________          Mass. App.  Ct. at  323, 568  N.E.2d at 634  (imposing a  duty to          defend despite  the fact that "many of  the complaint allegations          fell within the exclusion"); see also Aetna Cas. & Surety  Co. v.                                       ___ ____ ________________________          Continental Cas. Co., 413 Mass. 730,  732 n.1, 604 N.E.2d 30,  32          ____________________          n.1  (1992) (noting that "the weight of authority places the duty          to defend all  counts on an insurer which has a duty to defend at          least one  count of  a complaint").   As  the Camp Dresser  court                                                        ____________                                        ____________________               4 Nor need  we, for GRE  agreed to defend  suits within  the          grant  of coverage  "even  if the  allegations  of the  suit  are          groundless, false or fraudulent."                                          -16-          indicated, an insurer in this position may "undertake the defense          of  the  underlying action  with  a  reservation of  rights  with          respect  to the  excludable  claims" or  it may  share respective          defense  responsibilities with co-counsel.   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  until   the  non-excludable   claims  are          resolved,5  or an  arrangement such as  contemplated by  the Camp                                                                       ____          Dresser court is established, and would have to indemnify only if          _______          Metropolitan were found liable on a non-excludable claim.  If the          inspections are found  not to be professional services, GRE would          have to  defend  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  of early motion to dismiss  or for          summary  judgment in the underlying state cases.  If those claims          were removed,  it  appears that  GRE's obligation  to defend  the          underlying cases  would terminate.  See Sterilite,  17 Mass. App.                                              ___ _________          Ct. at 323-24 (the duty to  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  Mass. 675, 685-86,          ______________    ______________________          555  N.E.2d 568, 575  (1990) (citing Sterilite  approvingly).  Of                                               _________          course, we are not faced with these questions.                                         -17-          inspections were professional in nature.          _______________________________________                                         -18-
