NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2673

BERKLEY ASSURANCE CO.

v.

COLONY INSURANCE CO., Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2:17-cv-05433) District Judge: Honorable Paul S. Diamond

Submitted under Third Circuit L.A.R. 34.1(a) April 22, 2021

(Opinion Filed: April 27, 2021)

Before: AMBRO, RESTREPO, and RENDELL, Circuit Judges. O P I N I O N*

RENDELL, Circuit Judge.

This case involves a dispute between two insurance companies regarding defense

fees incurred as a result of litigation arising from a building collapse in Philadelphia,

Pennsylvania in 2013. Berkley Assurance Company (“Berkley”) brought this equitable

subrogation and unjust enrichment action against Colony Insurance Company (“Colony”)

in November 2017 in the Philadelphia Court of Common Pleas, seeking $667,272.13 in

defense payments Berkley previously made, plus pre-judgment interest. 1 Colony

removed this action to the District Court and filed counterclaims against Berkley for

equitable subrogation and unjust enrichment. The District Court granted partial summary

judgment for Berkley on the issue of equitable subrogation, and in the alternative, unjust

enrichment. The District Court conducted a bench trial as to the damages and awarded

Berkley all but $12,295.00 of the amount sought. Colony appeals the District Court’s

grant of partial summary judgment to Berkley on its equitable subrogation and unjust

enrichment claims, dismissal of Colony’s counterclaim, and award of damages to Berkley

for amounts that were not to Colony’s benefit. For the reasons discussed below, we will

affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We note that the District Court identified a different number in its summary judgment order, but we are relying on the number in the original complaint and the number used in the District Court’s damages order. 2 I.

On June 5, 2013, a building under demolition collapsed onto the neighboring

Salvation Army Thrift Store on Market Street in Philadelphia. Six people were killed and

thirteen others were injured. The survivors and estates of the victims filed numerous

lawsuits against the Salvation Army, the owners of the collapsed building, and the

demolition contractor (“Collapse Cases”). The building under demolition was owned by

STB Investment Corp, which was principally owned by Richard Basciano.

In December 2012, STB entered into a contract with Griffin Campbell to perform

demolition work at 2136–38 Market Street, which required Campbell to retain liability

insurance and name Basciano, STB Investment Corp. and their affiliates as “additional

insureds” (collectively, “STB Insureds”). Berkley, through its subsidiary Verus

Underwriting Managers, LLC, issued a commercial general liability policy to Campbell

in March 2013 (the “Berkley Policy” or the “Policy”). The Berkley Policy applied to

“additional insureds” such as “Owners, Lessees Or Contractors” when required by

agreement with Campbell. App. 103.

STB separately obtained insurance coverage from Colony for the demolition

project. Colony issued a commercial general liability policy, which also covered the STB

Insureds, but contained an Other Insurance Condition provision that made it secondary to

any other primary insurance that covered the STB Insureds.

Following the building collapse on June 5, 2013, the STB Insureds notified

Colony, and Colony hired Bonner Kiernan Trebach Crociata, LLP (“Bonner Kiernan”) to

3 represent them. The STB Insureds hired another firm, Sprague & Sprague, to serve as

lead counsel and to be paid directly by the STB Insureds.

During June and July 2013, Berkley and Colony exchanged a series of letters

regarding Berkley’s duty to defend. On June 11, 2013, Bonner Kiernan requested that

Berkley defend the STB Insureds. On July 8, 2013, Bonner Kiernan again inquired as to

Berkley’s position regarding their duty to defend. On July 16, 2013, Berkley notified

Bonner Kiernan that it was still investigating the matter. On July 18, 2013, Bonner

Kiernan insisted that Berkley take a position on its duty to defend. Bonner Kiernan

argued that a defense was owed to the STB Insureds and failure to defend would be “bad

faith.” App. 567.

On July 29, 2013, Berkley notified Sprague & Sprague and Bonner Kiernan that it

would defend the STB Insureds under a reservation of rights to deny coverage, based in

part on material misrepresentations in the insurance application. Berkley hired the law

firm Margolis Edelstein to defend the STB Insureds.

In September 2013, the STB Insureds accepted Berkley’s offer to provide a

defense subject to their reservation of rights but kept Sprague & Sprague as lead counsel,

paid for directly by the STB Insureds.

One year later, in September 2014, Berkley and Colony again discussed Berkley’s

duty to defend. A Berkley claims handler indicated that Colony had suggested that

Berkley no longer needed to be involved in the case. Colony informed Berkley:

You have a duty to defend unless you disclaim. If you are going to do so dsend [sic] me a copy. My policy is excess to yours at this time. If you are

4 successful in your DJ then the duty to defend then falls on Colony so I am having Bonner firm monitor case.

App. 327.

Berkley notified the STB Insureds on August 19, 2016 that it was no longer

obligated to provide a defense. On November 4, 2016, Berkley informed the STB

insureds that Livingood, the partner working on the case from Margolis Edelstein, would

no longer attend trial. However, Livingood continued to do so. On December 21, 2016,

Berkley requested that Livingood seek authorization for his ongoing trial work. On

January 5, 2017, Livingood withdrew from representing the STB Insureds, following a

conversation with a Berkley claims supervisor who told him that it was not “reasonable

or necessary for you to attend trial,” and they would only be paying for “reasonable and

necessary” work. Livingood was hired shortly thereafter by Colony and rejoined the

defense team.

The liability phase of the trial for the Collapse Cases concluded on January 31,

2017 with a verdict against all defendants. The parties entered into a global settlement

for $227,000,000.

In the meantime, Berkley filed a declaratory judgment action against Campbell,

the STB Insureds, and numerous others with possible interests in the Policy in the

Philadelphia Court of Common Pleas. Berkley sought a declaration that the Berkley

Policy was void ab initio because Campbell made misrepresentations in the insurance

application. Berkley moved for summary judgment and on April 18, 2017, the court

ordered that the Berkley Policy was void ab initio (the “void ab initio order”). The court

5 reasoned that rescission is appropriate where “a policy is obtained through material

misrepresentations in the insurance application.” App. 129.

Berkley brought this equitable subrogation and unjust enrichment action on

November 7, 2017, seeking $667,272.13 in defense payments Berkley made on behalf of

the STB Insureds plus pre-judgment interest.

Relying on the void ab initio order, the District Court concluded that Berkley was

entitled to summary judgment on the equitable subrogation and unjust enrichment claims.

The Court rejected Colony’s arguments that Berkley had either “voluntarily” provided

coverage or that equitable subrogation was unavailable based on its status as the primary

insurer. The Court also concluded that Berkley did not have unclean hands.

II.

We review orders granting summary judgment de novo, applying the same test as

the District Court. Daubert v. NRA Grp., LLC,

, 388–89 (3d Cir. 2017).

Summary judgment is appropriate where the moving party demonstrates that there is “no

genuine dispute as to any material fact” and the movant is “entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most favorable to

the nonmoving party and draw all inferences in its favor. Daubert, 861 F.3d at 388–89.

We review a district court’s findings of fact following a bench trial for clear error

and conclusions of law de novo. Post v. St. Paul Travelers Ins. Co.,

, 514–

15 (3d Cir. 2012).

6 III.

Colony claims on appeal that the District Court erred in granting summary

judgment because Berkley either had a duty to defend the STB Insureds or acted as a

volunteer in doing so, both of which preclude relief through equitable subrogation.

Colony additionally argues that Berkley has not met the remaining elements of an

equitable subrogation claim, Berkley has unclean hands, and Berkley failed to make the

requisite showing of bad faith from Colony. We conclude that Colony’s arguments are

without merit.

A.

We begin by reviewing the District Court’s grant of relief on Berkley’s equitable

subrogation claim. Equitable subrogation is appropriate “[w]here property of one person

is used in discharging an obligation owed by another or a lien upon property of another,

under such circumstances that the other would be unjustly enriched by the retention of the

benefit thus conferred.” Tudor Dev. Grp., Inc. v. U.S. Fid. & Guar. Co.,

,

361 (3d Cir. 1992). To avail itself of relief through equitable subrogation, Berkley was

required to show that: (1) it paid the STB Insureds to protect its own interest; (2) it did

not act as a volunteer; (3) it was not primarily liable for the debt; (4) the entire debt was

satisfied; and (5) allowing subrogation will not cause injustice to the rights of others. Id.

We will address each factor in turn below.

The District Court concluded that Berkley was acting in its own interest because

“[b]efore its Policy was declared void ab initio, Berkley would have acted at its own peril

had it otherwise refused to provide the STB Insureds with a defense.” App. 10. The

7 Court also noted that “Colony threatened that it would be bad faith if Berkley did not

defend the STB Insureds.” App. 10. Colony seems to concede on appeal that Berkley

was acting in its own interest, but argues that because Berkley was acting pursuant to its

own obligations, equitable subrogation is unavailable. We conclude that Berkley was

acting in its own interest, and that this does not preclude Berkley from being eligible for

relief here.

Colony first argues that Berkley had a duty to defend under the Policy until the

Policy was declared void by the Philadelphia Court of Common Pleas, so Berkley cannot

recover for the defense expenses incurred in the interim. Colony’s argument relies on us

interpreting the void ab initio order as rendering the Policy cancelled, and therefore only

providing prospective relief, rather than void ab initio, which provides retrospective

relief. But this issue has been resolved. The Pennsylvania Court of Common Pleas

declared the Policy void ab initio, which is the same as a rescission of the Policy. See

Klopp v. Keystone Ins. Companies,

, 4–5 (Pa. 1991) (finding “retrospective

relief of rescission” proper after contract was procured by fraud and as a result declaring

the policy “void ab initio”). The Pennsylvania Supreme Court has explained the

difference between rescission and cancellation as follows:

A rescission amounts to the unmaking of a contract, and is not merely a termination of the rights and obligations of the parties towards each other, but is an abrogation of all rights and responsibilities of the parties towards each other from the inception of the contract. It is a form of retroactive relief. Cancellation is an act destroying the force and effectiveness of the contract, and is a form of prospective relief, affecting the future rights and obligations of the parties towards each other.

8 Metro. Prop. & Liab. Ins. Co. v. Commonwealth,

, 1348 (Pa. Commw. Ct.

1986) (emphasis added). Accordingly, the consequence of the void ab initio order is the

abrogation, from inception, of all obligations between Berkley and the STB Insureds

under the Berkley Policy. Colony cannot avoid this conclusion. 2 We need not further

address Colony’s arguments as to the merits of this order. 3

Second, Colony relies on American & Foreign Insurance Co. v. Jerry’s Sport

Center, Inc.,

(Pa. 2010), to argue that because Berkley was acting in part in

its own interest to fulfill its duty to defend, it cannot seek reimbursement of the costs

incurred before the contract was declared void. Jerry’s Sport involved the question of

whether an insurer can be reimbursed for defense costs incurred while awaiting a

declaratory judgment when the declaratory judgment ultimately provided that it had no

duty to defend.

. The Pennsylvania Supreme Court reasoned that insurers have

2 We asked the parties for separate briefing on whether the void ab initio order was binding on Colony. We conclude that Berkley has the better arguments on this issue, namely, that Colony either waived its claim that it was not bound, or, it was bound because it was in privity with the STB Insureds for the purposes of the declaratory judgment action given their shared interest in Berkley’s providing coverage. See Ranger Ins. Co. v. Gen. Accident Fire & Life Assurance Corp.,

, 331–32 (3d Cir. 1986) (“[U]nder Pennsylvania law insurers and insureds are in privity for assessing the collateral estoppel consequences of the prior adjudication of a particular issue unless in that prior adjudication the interests of the insured and the insurer conflicted on that issue.”); cf. Truck Ins. Exch. v. Mid-Continent Cas. Co., 320 S.W.3d. 613, 618–20 (Tex. App. 2010) (concluding that insurer was in privity with insured for purposes of earlier coverage action with other insurer because insurer’s claims “derive[d] entirely from [insured] and, as a result depend[ed] upon [insured’s] right to coverage under its policy with [other insurer]”). 3 Colony’s counterclaims also rely on interpreting the void ab initio order as a cancellation rather than a rescission, so we will affirm the District Court’s dismissal of Colony’s counterclaims on the same basis. 9 an established duty to defend during the period of uncertainty.

at 543–44. The

insurer’s duty to defend “is a distinct obligation, separate and apart from the insurer’s

duty to provide coverage.” Id. at 541. It is broader than the duty to indemnify, and it

arises when “the factual allegations of the complaint on its face encompass an injury that

is actually or potentially within the scope of the policy.” Id. at 540–41. The

Pennsylvania Supreme Court explained that permitting reimbursement for defense

expenses incurred during this period “would amount to a retroactive erosion of the broad

duty to defend in Pennsylvania.” Id. at 544. As a result, the court rejected the

applicability of any equitable bases. Id. at 545. The court explained that “[b]y providing

a defense to Insured, therefore, [Insurer] acted as much in its own interest as it did in the

Insured’s. It would be unjust to require Insured to reimburse [Insurer] for the cost of the

defense.” Id. at 546.

We predict that the Pennsylvania Supreme Court would find Jerry’s Sport

inapplicable here, where the contract was declared void ab initio in a rescission order,

because it does not raise the same policy concerns about ensuring coverage during a

period of uncertainty. 4 Rather than incentivizing insurers to vigorously defend claims

from the outset of a case, the aim here is to undo any responsibilities incurred under the

4 If there is no Pennsylvania Supreme Court decision directly on point, we are charged with predicting how it would resolve the question at issue. Travelers Indem. Co. of Illinois v. DiBartolo,

(3d Cir. 1997). To do so, we must take into consideration decisions of (1) the Pennsylvania Supreme Court in related areas, (2) the Pennsylvania intermediate courts, (3) federal cases interpreting state law, and (4) other jurisdictions that have discussed the issue. Hughes v. Long,

(3d Cir. 2001). 10 Berkley Policy. To deny Berkley’s ability to recover here would destroy the effect of the

void ab initio order.

Additionally, in at least one Pennsylvania Superior Court case, the court permitted

recovery through equitable subrogation when another insurer rendered a defense, in part

to protect its own interests and despite not being primarily liable. See F.B. Washburn

Candy Corp. v. Fireman’s Fund,

, 773–74 (Pa. Super. Ct. 1988) (finding

that excess insurer was entitled to attorney fees when excess insurer was required to

render a defense because primary insurer wrongfully refused to do so).

As to the second element of the equitable subrogation claim regarding Berkley’s

classification as a volunteer, the District Court concluded that Berkley was not acting as a

volunteer because Colony “threatened Berkley with a bad faith suit if it refused to cover

the STB Insureds,” and under Pennsylvania law, a volunteer is one who “has no interest

to protect and is under no legal or moral obligation to pay under the circumstances.”

App. 11 (citing Mass. Bonding & Ins. Co. v. Car & Gen. Ins. Corp.,

(E.D. Pa. 1957)). We agree with the District Court that “Colony cannot now

seriously contend that Berkley was a ‘stranger’ or ‘intermeddler’” when Berkley was

acting out of a concern that it would be subject to a bad faith suit. App. 11. Berkley

correctly believed its policy would be declared void and as a result filed for declaratory

relief, but until that action was resolved, it needed to protect itself from a bad faith suit.

This does not render Berkley a volunteer. See Prairie State Nat.’l Bank v. United States,

(1896) (explaining that person acting “on compulsion, to save himself”

is not a volunteer for purposes of equitable subrogation).

11 Colony argues that the District Court erred in construing Colony’s language in the

July 18, 2013 letter as a threat of a bad faith suit. But even if we construe the letter in

Colony’s favor and accept Colony’s argument that it was not pressuring Berkley with a

bad faith suit, that does not make Berkley a volunteer. Until Berkley’s policy was

declared void, Berkley was acting out of concern that the Policy was still binding.

As to the third element, we conclude that Berkley cannot be considered primarily

liable for purposes of equitable subrogation when its contract has been declared void ab

initio. Colony became the primary insurer when Berkley’s policy was declared void ab

initio. A claims specialist from Colony acknowledged as much: “My policy is excess to

yours at this time. If you are successful in your DJ then the duty to defend falls to

Colony.” App. 327.

Colony conceded this element in the District Court but on appeal argues that

Berkley was primarily liable because Berkley entered into a separate, enforceable

contract with the STB Insureds by agreeing to assist the STB Insureds’ personal counsel

in defense. Berkley responds that it agreed to this pursuant to its existing duty to defend,

rather than as a separate contract.

We agree with Berkley that its defense was offered under the existing policy.

Rather than making a separate agreement, the STB Insureds’ personal counsel explained

that the STB Insureds “want to accept the defense and coverage of the Berkley Assurance

Company policy obtained by Griffin T. Campbell[.]” App. 559. Berkley’s counsel

confirmed this acceptance “pursuant to a full and complete reservation of rights” and

12 with the understanding that Berkley was not responsible for the fees incurred by the lead

counsel. App. 558.

This conclusion is bolstered by our prediction that the Pennsylvania Supreme

Court would not find that the emails agreeing to the defense arrangement constituted a

new contract. In Jerry’s Sport, the Pennsylvania Supreme Court explained that “[a]

reservation of rights letter asserts defenses and exclusions that are already set forth in the

policy.” Jerry’s Sport,

. To interpret a party’s reservation of rights letter to

expand the rights under the policy would constitute a “unilateral amendment to the

insurance contract.”

Similarly, here, if we were to interpret Berkley’s agreement as a

new contract, we would undermine the purpose of protecting existing rights.

Colony claims that Berkley cannot seek relief because it did not pay the entirety of

the defense, as required by the fourth element. We disagree. Berkley only seeks the

amount it has already paid in defense costs, and accordingly, has met this prong. The

Pennsylvania Superior Court has explained, “the subrogee stands in the precise position

of the subrogor[, so] the subrogee should be limited to recovering in subrogation the

amount received by the subrogor.” Hagans v. Const. State Serv. Co.,

(Pa. Super. Ct. 1997) (citation omitted). Berkley only seeks the benefit it paid for

the STB Insureds. Colony relies on U.S. Fidelity and Guarantee Co. v. United Penn

Bank,

(Pa. Super. Ct. 1987). But U.S. Fidelity involved a party attempting

to subrogate who had not paid out any debts of the principal or sustained any loss as a

result of the suretyship.

. The court determined that subrogation was

inappropriate when the party only claimed that third parties were going to demand

13 payment in the future and that it would be obligated to pay the claims when that

happened.

That scenario is inapplicable here.

As for the fifth, and final, element, Colony argues that subrogation would be

unjust because Berkley has unclean hands. In particular, Colony argues that Berkley

withdrew its defense one month before trial, then relented and entered an appearance but

instructed counsel not to attend proceedings or take any action without prior written

permission. These actions eventually forced defense counsel to resign. Berkley admitted

it only wanted its counsel to cover the portion of the claim that may be covered by the

Berkley Policy, which Colony argues demonstrates that Berkley’s conduct was unfair to

the STB Insureds.

The District Court concluded that Berkley’s actions were “prudent” because

“Berkley’s concerns regarding its obligations to provide the STB Insureds with a defense

were well-founded. Accordingly, the steps Berkley took to monitor and control fees and

expenses were appropriate.” App. 14. We again agree with the District Court that

Colony’s allegations fall far short of unclean hands.

We have explained that the doctrine of unclean hands applies “when a party

seeking relief has committed an unconscionable act immediately related to the equity the

party seeks in respect to the litigation.” Highmark, Inc. v. UPMC Health Plan, Inc.,

(3d Cir. 2001). This requires “fraud, unconscionable conduct, or bad faith

. . . [which] affects the balance of equities.” Paramount Aviation Corp. v. Agusta,

, 147 n.12 (3d Cir. 1999) (applying Pennsylvania law). We cannot say that

Berkley’s conduct was “unconscionable” nor can we say that it affected the balance of

14 equities. We agree with the District Court that Berkley’s effort to mitigate costs was to

the benefit of STB Insureds, and therefore to the benefit of Colony. Colony argues that

Berkley’s hostility and lack of support for the STB Insureds required Colony to step in at

its own expense. But this further undermines Colony’s argument. Had Berkley invested

more in its defense, Colony would owe Berkley more now. Colony’s earlier involvement

allowed Colony to control the strategy and mitigate the costs of the supplemental defense.

B.

Colony additionally argues that Berkley has no standing to bring an equitable

subrogation claim because the STB Insureds chose to pursue a defense on their own.

Because the STB Insureds provided their own defense, Colony did not breach a duty to

defend, thus Berkley, standing in the position of the STB Insureds, cannot bring a claim

against Colony—so the argument goes.

We disagree with Colony’s characterization of the parties’ obligations. The proper

inquiry is whether someone else discharged an obligation for which Colony is primarily

liable. See Restatement (First) of Restitution § 162 (1937). We agree with the District

Court that the effect of the void ab initio order is that “Colony retroactively became the

primary insurer from the date of the loss, assuming what had been Berkley’s obligation to

defend.” App. 13. Berkley is therefore entitled to seek reimbursement from Colony.

Colony argues that the STB Insureds’ election of personal counsel constituted a

rejection of Colony’s defense. For this claim, Colony relies on Berkley’s explanation

that “Berkley offered to defend the STB entities but the defense was not accepted. STB

insisted that it hire and pay the Sprague firm to defend itself.” App. 320. But Berkley’s

15 counsel went on to explain that under the arrangement with lead counsel, and at the

request of the STB Insureds, Berkley “provided support work as requested” by lead

counsel. App. 320. Through this arrangement, Berkley provided work that was

“supplemental,” and “non-duplicative.” App. 320. Further, Colony agrees that Berkley

had an obligation to defend despite the fact that the STB Insureds elected for separate

lead counsel. While the scope of Berkley’s defense was unquestionably limited, and

neither Berkley nor Colony provided lead counsel, Colony was required to perform

Berkley’s role in the absence of Berkley. See App. 327 (“If you are successful in your DJ

then the duty to defend falls to Colony.”). The STB Insureds’ election of separate lead

counsel does not change this.

C.

We need not review the District Court’s ruling regarding other doctrines of unjust

enrichment. We note, however, that equitable subrogation is a form of unjust

enrichment. See Tudor, 968 F.2d at 361. To the extent that Colony argues that Berkley

cannot seek relief of any form of unjust enrichment without a showing of misleading

conduct from Colony, this is certainly wrong. Although some forms of unjust enrichment

require a showing of misleading conduct from the third party, Colony provides no

support for its argument that this is an element of equitable subrogation. Berkley made

the requisite showing for equitable subrogation, and nothing further is needed.

D.

Lastly, we conclude that the District Court did not err in its assessment of

damages. The District Court properly limited Berkley’s recovery to those expenses that

16 “Colony would have been obligated to pay as primary insurer to the STB Insureds.”

App. 19. Subrogation “is a creature of equity; is enforced solely for the purpose of

accomplishing the ends of substantial justice . . . .” Jacobs v. Ne. Corp.,

(Pa. 1965). As excess insurer, Colony was required to provide the defense in the absence

of Berkley’s defense. Colony’s liability is unchanged by requiring Colony to reimburse

Berkley now for the defense Berkley provided. See F.B. Washburn Candy Corp.,

(explaining that primary insurer’s liability is unchanged by requiring

reimbursement to excess insurer who was wrongfully required to fund defense). We

agree with the District Court that Colony’s argument that some of the expenses did not

benefit Colony is irrelevant.

Our conclusion is further supported by our understanding that insurers sometimes

must incur expenses pursuant to their duty to defend that do not benefit the insurers

directly. For example, under Pennsylvania law, “if a single claim in a multiclaim lawsuit

is potentially covered, the insurer must defend all claims until there is no possibility that

the underlying plaintiff could recover on a covered claim.” Frog, Switch & Mfg. Co. v.

Travelers Ins. Co.,

(3d Cir. 1999). See also Jerry’s Sport, 2 A.3d at

541–43 (explaining that insurer makes the choice to defend at its own peril, and that an

insurer may still have a duty to defend even when the final judgment falls outside the

scope of the policy). By requiring the insurer to fund uncovered claims, Frog supports

that the benefit of the services to Colony is beside the point.

Colony relies on our decision in Post, in which we concluded that an insurer’s

duty to defend under Pennsylvania law extends to counterclaims in a proceeding that is

17 covered by the insurance policy, but does not extend to a separate action brought by the

insured involving the same claims. Post,

. Post raises unrelated issues,

and, regardless, it counsels against Colony’s position. In Post, we recognized that the

duty to defend includes incurring the expense of counterclaims because they are

“inextricably intertwined with the defense.”

at 521–22. Some counterclaims would

not otherwise be covered by a policy, and therefore would provide no benefit to the

insurer’s interests, but under Post, the insurer would still have to fund them as part of the

defense. See

. We rejected adopting an alternative rule that would require “a

highly contextual and subjective inquiry” because of our interest in “providing clear

coverage guidelines for insurers.”

Colony’s position would require insurers, and later

courts, to parse through each expense and determine whether it exclusively served the

interest of the insured, rather than the insurer. Such a rule is not supported by any

authority, and runs contrary to our recognized interest in clear guidelines regarding the

duty to defend. Accordingly, the District Court’s award of damages was proper.

IV.

For these reasons, we will affirm the District Court’s orders dismissing Colony’s

Counterclaim, granting partial summary judgment to Berkley on its equitable subrogation

and unjust enrichment claims, and awarding damages to Berkley.

18