Insurance – Legal malpractice – Prior knowledge limitation

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Where a plaintiff insurance company has filed a declaratory judgment action to resolve a dispute about whether it must defend and indemnify a defendant attorney and his codefendant law firm against a legal malpractice lawsuit filed in May 2024 by their former clients, the insurer is entitled to judgment on the pleadings because the defendants had a reasonable basis to foresee the malpractice claim prior to the applicable policy period.

“AIX Specialty Insurance Company (‘AIX’) filed this declaratory judgment action to resolve a dispute about whether it must defend and indemnify attorney John Tocci (‘Tocci’) and his law firm, Tocci & Lee LLC (together, ‘the Tocci Defendants’), against a legal malpractice lawsuit filed in May 2024 by their former clients. The case is before me on the parties’ cross-motions for judgment on the pleadings. Because, among other reasons, I find that the Tocci Defendants had a reasonable basis to foresee the malpractice claim prior to the applicable policy period, I must allow AIX’s motion and deny the Tocci Defendants’ motion. …

“… AIX argues that the Tocci Defendants are not entitled to coverage for the Malpractice Action because they cannot satisfy two coverage limitations in the Policy; specifically §A(1)(b) because, prior to the effective date of the Policy, Tocci had knowledge of facts which would have reasonably caused him to foresee that a malpractice action could be filed against him and his firm; and §A(1)(c) because the Malpractice Lawsuit is not a claim ‘first made’ during the Policy Period. For the reasons explained below, both arguments have merit. …

“Plaintiff/Counter-Claim Defendant AIX Specialty Insurance Company’s Motion for Judgment on the Pleadings (Docket #15) is allowed, and the Motion for Judgment on the Pleadings by Defendants/Plaintiffs-in-Counterclaim John Tocci and Tocci & Lee, LLC (Docket #22) is denied.

“Under Count I and II of the Complaint, and Count IV of the Counterclaim, it is hereby declared and adjudged that AIX Specialty Insurance Company has no duty to defend or indemnify John Tocci and Tocci & Lee, LLC in connection with the suit brought against them in Worcester Superior Court in a case captioned Flexible Fundamentals, Inc. v. Tocci, Civil Action No. 24-497, based on §A(1)(b) and §A(1)(c) of the Policy.”

AIX Specialty Insurance Company v. Tocci, et al. (Lawyers Weekly No. 09-057-25) (16 pages) (Krupp, J.) (Suffolk Superior Court) (Civil No. 24-2276-BLS1) (April 28, 2025).

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