Here there is an insurer having no duty to indemnify due to a lack of coverage but having a duty to defend. Whether it breached that duty has yet to be decided. Neither party addresses this situation and the consequences therefrom with respect to possible liability and EMC’s other related claims. I find guidance in Signature, 230 F.3d 1215. As discussed, the court there concluded that an insurer breached its duty to defend its insured in underlying litigation that ultimately settled. See id. It held that the insurer that had breached its duty to defend, Royal, owed the other insurer that had defended the insured, Signature, a pro rata portion of attorney fees, costs and expenses incurred in reaching settlement in the underlying litigation. Id.; see also Bainbridge, 159 P.3d at 756-57 (<HOLDING>). The court also concluded that Royal did not
holding that an insurers duty to defend arises from the allegations in the complaint against the insured holding that insured may recover from its insurer any attorney fees incurred in successfully attempting to force the insurer to defend an action 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 an insured who breaches it duty to defend is liable for the costs and reasonable attorney fees incurred by the insured in defending  against the claims asserted as well as consequential damages holding that an insurance policy providing that the insurance company would pay all reasonable expenses incurred by the insured at our request emphasis omitted did not establish an agreement that the insurer would cover attorney fees and costs to the insured in a declaratory action