Real Legacy opposed Acotrol’s motion for summary judgment and moved for summary judgment, seeking a declaratory judgment in its favor. Docket #425, p. 2. Contending that it “does not owe any duty towards its insured,” Real Legacy maintains the policy “does not cover the allegations of the Complaint ... pursuant to its terms, conditions and exclusions.” IcL, p. 2. A preliminary ruling is in order. Procedurally speaking, Real Legacy is not entitled to a declaratory judgment in its favor. That is so because “it did not file a counterclaim seeking affirmative relief.” Vermont Mut. Ins. Co. v. Zamsky, No. 11-11869, 2012 WL 6864702, at *1 (D.Mass. Dec. 17, 2012), report and recommendation adopted (Jan. 11, 2013); see Missouri, K. & T. Ry. Co. v. Early, 74 F.R.D. 60, 61 (E.D.Okla.1977) (<HOLDING>). The upshot is that Real Legacy is “only
holding that declaratory judgments should not be used as a restraint against criminal action holding that affirmative relief in the form of declaratory judgments was improperly requested in the answers and should have been sought by counterclaim holding that insured who brought third party action against insurer could recover costs incurred in defending insurers counterclaim for declaratory relief since the insureds posture in the counterclaim was that of a defendant recognizing that a party can obtain declaratory relief but still not be entitled to an award of attorneys fees under the declaratory judgments act holding property owner not entitled to award of attorneys fees under declaratory judgments act because his declaratory judgment counterclaim did not present any issues beyond the homeowners associations cause of action