at that time. U.S. Fire’s persistent failure to make any payment toward defense costs despite having nominally accepted that duty may be treated as a wrongful refusal to defend upon receipt of notice of a claim. The SJC has said explicitly that “[a]n insurer which reserves its rights and takes no action in defense of its insured, when it knew, or should have known, of a covered claim, or which fails to investigate diligently, despite repeated claims of coverage and requests for a defense from an insured facing demands for immediate action, could be found to have committed a breach of the duty to its insured.” Sarnafil, Inc. v. Peerless Ins. Co., 418 Mass. 295, 636 N.E.2d 247, 253 (1994); accord Chi. Title Ins. Co. v. Fed. Deposit Ins. Corp., 172 F.3d 601, 604-06 (8th Cir.1999) (<HOLDING>). None of the factual issues identified by U.S.
holding insurers duty to defend is determined by allegations in the petition recognizing that an insurers obligation to pay for prenotification legal expenses is concomitant with its right to control the defense and that a contrary result would require the insurer to pay for those defense costs which it had no opportunity to control holding that an insurers duty to defend arises from the allegations in the complaint against the insured holding on summary judgment before the question of the insurers obligation to indemnify was decided that the insurer was liable for the costs of the insured in defending the declaratory judgment action because it breached its duty to defend holding that the insurers failure to pay even what it had considered to be a reasonable sum for defense costs despite having nominally accepted the tender of defense constitutes a breach of the duty to defend