Full opinion text
MEMORANDUM AND ORDER RE: DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ CHAPTER 93A, TORT AND OTHER CLAIMS (DOCKET ENTRY # 90); DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION FOR SUMMARY JUDGMENT ON THE 1986, 1989 AND 1990 POLICIES (DOCKET ENTRY # 88); DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION FOR SUMMARY JUDGMENT ON ASSIGNED CLAIMS OF SUBURBAN CONSTRUCTION COMPANY, INC. (DOCKET ENTRY #92); PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET ENTRY #140); CROSS-MOTION FOR SUMMARY JUDGMENT THAT PLAINTIFFS HAVE STANDING TO PURSUE THESE CLAIMS (DOCKET ENTRY # 110); DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION TO STRIKE PLAINTIFFS’ SUMMARY JUDGMENT AFFIDAVITS (DOCKET ENTRY # 161); DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION TO STRIKE AFFIDAVIT OF DENNIS PHILLIPS (DOCKET ENTRY # 193); CROSS-MOTION FOR SUMMARY JUDGMENT ON ASSIGNED CLAIMS OF SUBURBAN CONSTRUCTION COMPANY, INC. (DOCKET ENTRY # 109) BOWLER, United States Magistrate Judge. Pending before this court are the above styled motions. After conducting a hearing, this court took the motions (Docket Entry 88, 90, 92, 109, 110, 140, 161 & 193) under advisement. PROCEDURAL BACKGROUND Plaintiffs John Beaudette, Inc. (“JBI”) and John Beaudette (“Beaudette”) initially filed this environmental insurance coverage action in Massachusetts Superior Court on March 11, 1996. Defendant Sentry Insurance A Mutual Company (“Sentry”) removed the action to the United States District Court for the District of Massachusetts. Thereafter, this court allowed plaintiffs leave to amend the complaint to allege various causes of action by them in their capacity as assignees of Suburban Construction Company, Inc. (“Suburban”). The amended complaint sets forth counts: (1) for declaratory judgment by Beaudette, JBI and the Suburban Assignees (Count I); (2) to reach and apply by Beaudette and JBI (Count II); (3) for violation of section 112 of Massachusetts General Laws chapter 175 (“section 112”) by Beaudette and JBI (Count III); (4) for violation of section 113 of Massachusetts General Laws chapter 175 (“section 113”) by Beaudette and JBI (Count IV); (5) for estoppel by Beaudette and JBI (Count V); (6) for breach of contract by the Suburban Assignees (Count VI); (7) for negligence and misrepresentation by Beaudette, JBI and the Suburban Assignees (Count VII); (8) for violation of Massachusetts General Laws chapters 93A (“chapter 93A”) and 176D (“chapter 176D”) by Beaudette and JBI (Count VIII); and (9) for violation of chapters 93A and 176D by the Suburban Assignees (Count IX). (Docket Entry #51). Sentry moves for summary judgment on the claims raised by the Suburban Assignees due to the expiration of the relevant statute of limitations. (Docket Entry # 92). Sentry additionally moves for summary judgment on plaintiffs’ claims for coverage under the insurance policies issued by Sentry during the years 1986, 1989 and 1990, thereby leaving at issue the policies for the years 1987 and 1988. (Docket Entry # 88). Sentry asserts that the 1986 insurance policy predates the date of the loss and that the loss was known at the time of the issuance of the 1989 and 1990 insurance policies. (Docket Entry 89 & 165). Finally, Sentry moves for summary judgment on counts I through V, VII and VIII (Docket Entry # 90) insofar as these claims are brought by Beaudette and JBI because: (1) Beau-dette is not a “judgment debtor” within the meaning of section 3(9) of Massachusetts General laws chapter 214 (“chapter 214”); (2) Beaudette and JBI lack a private right of action under sections 112 and 113; (3) Beaudette and JBI cannot assert a chapter 93A claim due to the absence of a business or contractual relationship; (4) Beaudette and Sentry cannot assert a chapter 93A claim based on a violation of section 176D because their chapter 93A claim arises under section 11; (5) the chapter 93A, negligence, misrepresentation and estoppel claims are time barred; (6) Beau-dette’s and JBI’s misrepresentation claim is deficient due to the absence of any commercial, transactional or fiduciary relationship which might give rise to a duty on the part of Sentry, the absence of any reasonable reliance and the absence of any evidence that Sentry intended to induce JBI to act on the alleged misrepresentation concerning coverage; (7) Beaudette’s and JBI’s estoppel claim fails due to the lack of reasonable reliance and the lack of a legal or transactional relationship with Sentry; and (8) Beaudette’s and JBI’s negligence claim fails because of the absence of any duty of care between Sentry vis-a-vis Beaudette and JBI. (Docket Entry 91 & 164). Plaintiffs also move for summary judgment. (Docket Entry # 140). Without referring to any particular count, plaintiffs seek to establish that Suburban was entitled to defense and indemnity coverage under the insurance policies issued in the years 1987, 1988, 1989 and/or 1990 and that the environmental damage to the gasoline station owned by JBI was caused by an “occurrence” which is covered by the policies and not subject to an absolute pollution exclusion which was not contained in the original policies for the years 1987 and 1988. Plaintiffs seek a declaration that the 1987 policy contained a “sudden and accidental” pollution exclusion as opposed to the absolute pollution exclusion and that the 1988 policy contained a “completed operations” pollution exclusion as opposed to the absolute pollution exclusion. They additionally seek a declaration that Sentry is obligated to pay JBI the amount of a default judgment entered against Suburban as well as consequential damages and that Sentry wrongfully denied coverage in violation of chapter 93A. Plaintiffs also move for summary judgment on the negligence and misrepresentation count. (Docket Entry 140 & 180). FACTUAL BACKGROUND JBI owns a gasoline station (“the station”) in Rockport, Massachusetts. Beau-dette is the sole shareholder, officer and director of JBI. In 1987 Suburban was hired to install a new gasoline dispensing system at the station. (Docket Entry 140 & 168, ¶¶ 18 & 19). Suburban began installing the new system at the station on November 18, 1987. It completed all of the work no later than December 10, 1987. (Docket Entry # 146). The work consisted of installing three new gasoline pumps and suction lines between the pumps and the underground storage tanks. Suburban tested the system for tightness after completing the work. Initially the pumps dispensed an incorrect grade of gasoline thereby necessitating disconnecting and reconnecting the piping between the pumps and the storage tanks. Suburban performed this work but did not conduct a test for tightness after finishing these repairs. (Docket Entry # 146). On January 26, 1988, gasoline vapors were detected in the Rockport sewer system. In March 1988 the gasoline was traced back to the station. (Docket Entry 142 & 146). On March 16 and 17, 1988, Down to Earth Drilling tested the four underground storage tanks. The testing determined that two of the tanks showed evidence of a leak. On March 21, 1988, Down to Earth Drilling excavated the surface of the two tanks and detected a leak in the unions connecting certain pipes. (Docket Entry # 147, Ex. 8 & 9). Suburban whs notified of the release of gasoline stemming from its work at the station. (Docket Entry # 146). On or about April 5, 1988, Suburban notified Sentry of the problem. (Docket Entry # 95). Sentry issued two types of insurance policies to Suburban, a comprehensive liability policy, designated by the number 88-87723-02, and an umbrella liability policy, designated by the number 88-76723-03. Sentry initially issued the comprehensive liability policy in January 1986 (“the 1986 CLP policy”), with annual renewals thereafter in January 1987 (“the 1987 CLP policy”), January 1988 (“the 1988 CLP policy”), January 1989 (“the 1989 CLP policy”), January 1990 (“the 1990 CLP policy”) and January 1991. Likewise, Suburban first issued the umbrella liability policy in January 1986 (“the 1986 umbrella policy”), with annual renewals thereafter in January 1987 (“the 1987 umbrella policy”), January 1988 (“the 1988 umbrella policy”), January 1989 (“the 1989 umbrella policy”), January 1990 (“the 1990 umbrella policy”) and January 1991. (Docket Entry 51 & 54, ¶¶ 11). In or around March 1989 Sentry reconstructed the 1987 and 1988 CLP and umbrella policies. (Docket Entry # 147, Ex. 2). Sentry undertook prior efforts to locate trae and correct copies of these policies due to its involvement in another insurance coverage dispute with Suburban resulting from contaminated property in New Hampshire. That dispute gave rise to litigation in the United States District Court for the District of New Hampshire, Suburban Construction Company, Inc. v. Hartford Fire Insurance Company and Sentry Insurance A Mutual Company, No. 90-379-D (“the New Hampshire action”). (Docket Entry # 95, Ex. I). Based upon a search Sentry conducted in connection with the present dispute, Sentry determined that it did not have a complete paper copy of each of the insurance policies issued to Suburban. Lacking a complete photocopy of the original of the policies and/or the subsequent renewals, Sentry reconstructed the policies and certified that the reconstructed policies were true and exact reproductions of the original policies. (Docket Entry # 147, Ex. 2; Docket Entry # 95, Ex. I). Prior to 1989 Sentry’s underwriting department kept paper copies in its office files for each insurance policy. These files consisted of a declarations page, which includes a list of endorsements, and an internal ratings worksheet for the particular policy. (Docket Entry # 95, Ex. I). In reconstructing the 1987 and 1988 CLP and umbrella policies, Sentry’s underwriting personnel used the declarations page and the internal ratings worksheet as well as other documents. Based on the underwriting documents, Edward L. Sev-erson (“Severson”), Corporate Underwriting Superintendent at Sentry since 1979, and Curtis Wachsmuth (“Wachsmuth”), Underwriting Supervisor at Sentry from 1987 to 1997, uniformly aver that the special pollution exclusion endorsement, which excludes coverage for property damage arising out of the discharge or release of pollutants and oftentimes has a place for the signature of the insured, was part of the recreated 1987 and 1988 CLP and the 1987 and 1988 umbrella policies from the date of their inception. (Docket Entry 173 & 174). These averments are consistent with Sentry’s policy at the time to completely exclude coverage for pollution in accounts involving businesses with underground storage tanks such as Suburban. (Docket Entry # 173). In addition, Wachsmuth confirmed at his deposition that the special pollution exclusion endorsement, without a place for the insured’s signature and produced on December 4, 1986, was part of the 1987 CLP renewal of Suburban’s policy. (Docket Entry # 171, Ex. G; Docket Entry # 174, Ex. A). He also testified that the special pollution exclusion endorsement was part of the 1988 CLP policy from the date of its inception. (Docket Entry # 171, Ex. G). One form of the special pollution exclusion endorsement contains a place for the policyholder’s acknowledgment with a line for the signature of the company official, a line for the name of the company and another line for the date. Sentry’s records contain Phillips’ signature on the exclusion for the recreated 1988 CLP and the recreated 1988 umbrella policies dated March 10, 1988. (Docket Entry # 173, Ex. C & D). The signed exclusion for the recreated 1988 umbrella policy also contains a date stamp as received by Sentry on April 8, 1988. (Docket Entry # 173, Ex. D). The handwriting for the name of the company and the March 10, 1988 date, however, differs from the handwriting of Phillips’ signature. At his deposition, Phillips recognized his signature but did not recognize the handwriting on the lines naming the company, “Suburban Consrt Co Inc.,” and the date, “3-10-88.” (Docket Entry # 170, Ex. L). Phillips avers that he initially refused to accept the pollution exclusions urged by Sentry. He attests that he did not sign absolute pollution exclusions until after receiving a letter from Sentry dated March 8, 1990. (Docket Entry # 145). Moreover, neither Mann nor Phillips remember signing such an exclusion in 1988. Furthermore, it was Mann’s policy to always type the name of the company whenever Phillips signed a legal document on behalf of Suburban. (Docket Entry 144 & 145). In 1987 and 1988 Sentry also employed another pollution exclusion which was less draconian than the special pollution exclusion endorsement signed by Phillips. Designated IL 09 28 for CLP policies and corresponding to exclusion UB-106 for umbrella policies, these completed operations exclusions bar coverage for property damage arising from the discharge of pollutants except for damages arising from completed operations, according to a procedure bulletin. Use of these exclusions was optional at the time. The inclusion of IL 09 28 or UB-106, however, did not merit a reduction in premium, according to the bulletin. Another procedure bulletin clarifies that the completed operations pollution exclusion was not acceptable for businesses with underground tank and piping service, i.e., Suburban. (Docket Entry # 173, Ex. E & F). All of the recreated CLP policies as well as the so-called original CLP policies provide indemnity coverage for sums which the insured becomes “legally obligated to pay as damages because of ... property damage to which this insurance applies, caused by an occurrence.” The CLP policies additionally include a duty to defend obligation which reads as follows: “We shall have the right and duty to defend any suit against the insured seeking damages on account of such ... property damage.” (Docket Entry # 95, Ex. I; Docket Entry # 147, Ex. 1 & 2). The CLP policies also contain a no action clause which provides that, “[N]o legal action may be brought against us until we agree in writing that the insured has an obligation to pay or until the amount of that obligation has been finally determined by judgment after trial.” (Docket Entry # 95, Ex. I; Docket Entry # 147, Ex. 1 & 2). The so-called original 1987 through 1989 CLP policies also included an integration clause. Sentry’s practice was to list all of the forms and endorsements applicable to the policy on the declarations page. (Docket Entry # 147, Ex. 4). The so-called original 1987 CLP policy contains a sudden and accidental pollution exclusion for “property damage arising out of the ... release ... of ... pollutants into or upon land.” The exclusion expressly “does not apply if such discharge, dispersal, release or escape is sudden and accidental.” The declarations page of the so-called original 1987 CLP policy does not reference the special pollution exclusion endorsement. (Docket Entry # 147, Ex. 1). The declarations page for the recreated 1987 CLP policy does not list either the special pollution exclusion endorsement or the completed operations pollution exclusion. (Docket Entry # 147, Ex. 2; Docket Entry # 171, Ex. G; Docket Entry # 174, Ex. A; Docket Entry # 169, Ex. Q). The body of the recreated 1987 CLP policy, however, contains the sudden and accidental pollution exclusion and an unsigned special pollution exclusion endorsement processed on February 26, 1987, and effective on January 1, 1987, replacing the former exclusion. (Docket Entry # 147, Ex. 2; Docket Entry # 174, Ex. A). Initially, the recreated 1987 CLP policy contained a special pollution exclusion endorsement without a signature line. (Docket Entry # 169, Ex. Q; Docket Entry # 174, Ex. A; Docket Entry # 171, Ex. G). The ratings worksheet for the recreated 1987 CLP policy includes the special pollution exclusion endorsement under the list of forms and endorsements applicable to the policy. (Docket Entry # 95, Ex. 1(3)). Likewise, the on-line declarations page print-out from Sentry’s computer dated February 15, 1989, references the special pollution exclusion endorsement. (Docket Entry # 147, Ex. 21). The body of the so-called original 1988 CLP policy includes the completed operations pollution exclusion (IL 09 28) modifying the sudden and accidental pollution exclusion. The declarations page for the so-called original 1988 CLP policies also lists the completed operations pollution exclusion (IL 09 28). (Docket Entry # 147, Ex. 1). The body of the recreated 1988 CLP policy contains an unsigned special pollution exclusion endorsement with a place for the insured’s signature. It also contains the completed operations pollution exclusion (IL 09 28). The declarations page for the recreated 1988 CLP policy, however, references the completed operations pollution exclusion (IL 09 28) and fails to include the special pollution exclusion endorsement. (Docket Entry # 147, Ex. 2). On the other hand, internal Sentry worksheets for the 1988 CLP policy list both the special pollution exclusion endorsement and the completed operations pollution exclusion (IL 09 28) under the list of forms and endorsements for the policy. (Docket Entry # 174, Ex. C; Docket Entry # 147, Ex. 15). Another internal Sentry worksheet for the 1988 CLP policy lists only the special pollution exclusion endorsement under the list of forms and endorsements for the policy. (Docket Entry # 147, Ex. 6). To the extent that policy documents indicate the inclusion of IL 09 28 in “the 1988 policies,” Wachsmuth attests that the documents were issued by mistake. (Docket Entry # 174). Similarly, various Sentry officials testified that the failure to list the special pollution exclusion endorsement on the declarations pages for the 1987 and 1988 CLP policies was a mistake or clerical error. (Docket Entry # 147, Ex. 4). Under the recreated as well as the so-called original umbrella policies Sentry agreed “[t]o indemnify the insured for ... all sums which the insured shall be obligated to pay by reason of legal liability for damages imposed upon the insured by law ... if the legal liability for damages results from ... property damage ... to which this insurance applies, caused by an occurrence.” (Docket Entry # 147, Ex. 1 & 2). The umbrella policies also contain a no action clause which reads that: “No action shall lie against us ... until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured, or by written agreement of the insured, claimant and us.” (Docket Entry # 147, Ex. 1 & 2). The so-called original 1987 umbrella policy lists the special pollution exclusion endorsement on the declarations page and also contains the exclusion in the body of the policy. The special pollution exclusion endorsement in the so-called original 1987 CLP policy did not contain a signature line for the insured’s name. (Docket Entry # 147, Ex. 1). The recreated 1987 umbrella policy lists the special pollution exclusion endorsement on the declarations page and contains an unsigned copy of the exclusion in the body of the policy. (Docket Entry # 147, Ex. 2; Docket Entry # 95, Ex. 1(2); Docket Entry # 174, Ex. B). Other evidence in the record shows that the body of the recreated 1987 umbrella policy contains a special pollution exclusion endorsement without a signature line as well as the aforementioned one with a signature line. (Docket Entry # 174, Ex. B). The so-called original 1988 umbrella policy lists the special pollution exclusion endorsement and the completed operations pollution exclusion (UB-106) on the declarations page but contains only the special pollution exclusion endorsement in the body of the policy, unsigned with a place for the insured’s signature. (Docket Entry # 147, Ex. 1). As previously noted, Wachsmuth attests that the reflection of a pollution exclusion other than the special pollution exclusion endorsement in “the 1988 policies” was a mistake. (Docket Entry # 174). The recreated 1988 umbrella policy lists the special pollution exclusion endorsement and the completed operations pollution exclusion (UB-106) on the declarations page and contains both exclusions in the body of the policy. (Docket Entry # 147, Ex. 2; Docket Entry # 174, Ex. D). The record contains copies of a special pollution exclusion endorsement signed by Phillips on March 10, 1988, as well as copies of an unsigned special pollution exclusion endorsement in the recreated 1988 umbrella policy. (Docket Entry # 147, Ex. 2 & 27; Docket Entry # 174, Ex. D; Docket Entry # 173, Ex. D). An internal Sentry worksheet likewise lists the special pollution exclusion endorsement and the completed operations pollution exclusion (UB-106) as included in the 1988 umbrella policy. (Docket Entry # 147, Ex. 6). On April 22, 1988, Gulf of Maine Research Center, Inc., an environmental consulting services firm, sent Beaudette a copy of its report (“the GMRC report”) detailing the findings concerning the leaks at the station. Referring to the March 1988 testing by Down to Earth Drilling, the GMRC report noted a leak in the vent line of one of the tanks and a release of gasoline when transferring gasoline into this tank. (Docket Entry # 147, Ex. 9). Sentry initially assigned Gross to analyze Suburban’s claim. On April 11, 1988, he issued the first liability report determining that coverage existed for the accident. (Docket Entry # 147, Ex. 18; Docket Entry # 171, Ex. D). An April-12, 1988 management review evaluation conducted by Gross’ immediate supervisor agreed with Gross’ initial determination. (Docket Entry # 147, Ex. 18; Docket Entry # 171, Ex. D). By letter dated May 10, 1988, Gross received a copy of the GMRC report. (Docket Entry # 147, Ex. 9). Gross reiterated his belief that coverage existed at least with respect to the 1988 CLP policy in a second report issued on June 3, 1988. Therein, he notes that Suburban did 100% of the work replacing the piping at the station and that the gasoline leaked out of the piping and into the ground resulting in pollution of the soil and adjacent groundwater. (Docket Entry # 147, Ex. 8; Docket Entry # 171, Ex. D). On June 3, 1988, Gross wrote a letter to JBI’s attorney referencing the claim number. Unequivocally, Gross states that it is Sentry’s “position that there would be coverage for both on-site and off-site damage and cleanup costs” for the accident. (Docket Entry # 147, Ex. 20). In early 1989 Gross reviewed a letter “from Beaudette’s attorney” advising Sentry that the claim was of greater magnitude than originally anticipated. (Docket Entry # 171, Ex. D). Gross therefore decided to reexamine the CLP policy by requesting a computer generated printout of the declarations for the 1987 and 1988 policies. (Docket Entry # 171, Ex. D). Concluding that there was no coverage for the accident, he wrote a letter to Phillips denying coverage. (Docket Entry # 171, Ex. D). As set forth in the March 17,1989 letter, Gross advised Phillips that Sentry declines “any coverage” for the claim filed by Beau-dette concerning the gasoline contamination at the station. (Docket Entry # 95, Ex. B; Docket Entry # 147, Ex. 24). The letter quotes, at length, the special pollution exclusion endorsement of “your policy” and denies coverage on the basis of the exclusion. (Docket Entry # 95, Ex. B; Docket Entry # 147, Ex. 24). As indicated supra, this exclusion bars coverage for property damage arising out of the actual or threatened release of pollutants. (Docket Entry # 95, Ex. B; Docket Entry # 173, Ex. A-D). Gross also wrote a similar letter to JBI’s attorney on March 17, 1989. Therein, Gross stated that Sentry declines “any coverage” on behalf of Suburban fór the accident based on the quoted language of the special pollution exclusion endorsement. (Docket Entry # 95, Ex. D; Docket Entry # 147, Ex. 24). On or about March 31, 1989, after the Massachusetts Department of Environmental Quality Engineering (“DEQE”) issued a notice of responsibility letter to Beaudette dated February 8, 1989, JBI filed an action against Suburban and certain other defendants in Massachusetts state court (“the state court action”). (Docket Entry # 95, Ex. A; Docket Entry # 147, Ex. 11). The complaint seeks to recover the costs and damages associated with the release of gasoline at the station due to Suburban’s failure to properly connect the components of the gasoline dispensing system. (Docket Entry # 95, Ex. A). According to Sentry’s internal diary, it received a copy of the summons and complaint on April 4, 1989. Gross then discussed the option of filing a declaratory judgment action or agreeing to the lack of coverage with Phillips and Mann. (Docket Entry # 147, Ex. 22). By letter dated April 7, 1989, JBI’s attorney requested that Sentry produce a signed acknowledgment of the pollution exclusion quoted in the March 17, 1989 letter. In an April 14, 1989 reply letter, however, Gross refused to provide the information because Sentry was not a party to the state court action. Gross also unequivocally informed JBI’s attorney that Sentry would “not provide coverage for [the state court action].” (Docket Entry # 147, Ex. 25; Docket Entry # 95, Ex. D). Meanwhile, in another April 7, 1989 letter from Sentry to the Commissioner of the Division of Insurance for the Commonwealth of Massachusetts, Sentry notified the agency of its use of the more restrictive special pollution exclusion endorsements, enclosed copies of the forms for various types of policies and stated that Sentry would “require the insured’s written authorization” prior to using the exclusions. (Docket Entry # 147, Ex. 26). The enclosed pollution exclusion forms are synonymous to those used in the recreated 1987 and 1988 CLP and umbrella policies. (Docket Entry # 173, Ex. A-D). The April 7,1989 letter also requested approval to use the endorsements on policies written after May 15, 1989. (Docket Entry # 147, Ex. 26). At or around this time, Suburban tendered the defense of the state court action to Sentry. (Docket Entry #95). An internal Sentry memorandum dated April 5, 1989, notes differing opinions among Sentry personnel as to Sentry’s duty to defend the state court action and that another Sentry official was reviewing the policy. (Docket Entry # 147, Ex. 30). Thereafter, in an April 14, 1989 letter to Phillips, Gross acknowledged receipt of the “lawsuit” in the state court action but again denied coverage for the claim. Referring to the March 17, 1989 letter, Gross stated that Sentry had “no duty to defend or indemnify Suburban” and therefore returned the summons and complaint to Phillips. (Docket Entry # 95, Ex. C). In a separate April 14, 1989 letter, Suburban’s counsel acknowledged that Sentry declined to defend the state court action on behalf of Suburban and notified Gross that Suburban would hold Sentry responsible for all fees and expenses incurred in the defense. (Docket Entry # 95, Ex. G). As of April 1989 both Beaudette and Suburban therefore knew that Sentry had stated a firm position declining any coverage and, accordingly, would not defend or indemnify Suburban for any defense costs or judgment in the state court action. (Docket Entry # 93, Ex. 1; Docket Entry # 95, Ex. D; Docket Entry # 147, Ex. 24 & 25; Docket Entry # 170, Ex. L). By letter dated June 8, 1989, JBI’s attorney contended to Gross that the language of the pollution exclusion quoted in the March 17, 1989 letter did not exclude coverage for the accident. (Docket Entry # 147, Ex. 25). At this time, Beau-dette understood that JBI’s attorney was contesting Sentry’s denial of coverage. (Docket Entry # 170, Ex. I). In reply to the June 8, 1989 letter, Gross repeated Sentry’s position of denying coverage to Suburban in a letter dated June 19, 1989. (Docket Entry # 147, Ex. 25). In a July 11, 1989 letter to Gross, JBI’s attorney continued -to dispute Sentry’s construction of the language of the pollution exclusion. By letter dated July 20, 1989, Gross again repeated Sentry’s position of denying coverage. (Docket Entry # 147, Ex. 25). There is little indication of any further correspondence between JBI’s and Suburban’s attorneys and Sentry until JBI’s new attorney sent Sentry a chapter 93A letter dated October 19, 1995. (Docket Entry # 95, Ex. H). JBI’s attorney as of February 1990 or 1991 does not remember pursuing Sentry for coverage under the policy. (Docket Entry # 170, Ex. K). In addition, Phillips did not personally speak to anyone at Sentry about Suburban’s request for coverage under the policies. (Docket Entry # 170, Ex. L). Beaudette likewise testified that he did not have any direct communications personally with Sentry concerning the state court action. (Docket Entry # 170, Ex. H). By the end of 1989, due to the financial constraints of several lawsuits, Suburban could no longer maintain its business. (Docket Entry 144 & 145). Suburban ceased its business operations in or around December 1989. (Docket Entry # 170, Ex. L). At the time, Suburban forwarded its records to its attorneys, Kahn & McKenzie. (Docket Entry # 170, Ex. L). Attorney Sullivan withdrew as Suburban’s counsel in the state court action in or around November 1991 due to nonpayment of legal fees. (Docket Entry # 170, Ex. L & O). On March 4, 1992, JBI filed a motion for a default judgment without opposition on the issue of liability against Suburban in the state court action. (Docket Entry # 170, Ex. K). According to JBI’s attorney at the time, the court allowed the motion for default judgment in the spring of 1992. (Docket Entry # 170, Ex. K). A notice of docket entry confirms that Suburban was defaulted on March 30, 1992. (Docket Entry # 147, Ex. 13). In addition, on or about March 30, 1992, Phillips remembers seeing a form notice from the court concerning Suburban’s default and forwarding the document to Kahn & McKenzie. (Docket Entry # 170, Ex. L). JBI’s attorney did not immediately request an assessment of damages against Suburban after entry of the default judgment as to liability. Rather, he wished to wait until the trial concluded against the remaining defendants and then obtain a final judgment against all parties. Trial of the state court action took place in December 1992. Thereafter, JBI’s attorney requested an assessment of damages against Suburban based upon affidavits by counsel and Beaudette. (Docket Entry # 170, Ex. K). As set forth in the April 14, 1993 notice of docket entry, the court entered a final judgment against Suburban in the amount of $684,560 with prejudgment interest in the amount of $329,732.01 and attorneys’ fees in the amount of $274,-181.69. (Docket Entry # 147, Ex. 13). According to JBI’s attorney, after entry of the final judgment in the state court action, his law firm agreed with Beaudette to pursue an appeal against Noonan but not to pursue a claim against Sentry. He also remembers advising Beaudette that he would be well served to find a lawyer willing to pursue a claim against Sentry. (Docket Entry # 170, Ex. K). At his deposition, Beaudette could not recall whether he instructed JBI’s attorney to sue Sentry. He also did not have an explanation for why he waited so long-after entry of the final judgment on liability and damages to pursue Sentry. (Docket Entry # 170, Ex. H). Beaudette additionally testified that he did not know whether Sentry was notified of the April 1993 final judgment prior to the October 1995 demand letter. (Docket Entry # 170, Ex. H). JBI’s attorney attempted to serve the February 1992 motion for a default judgment as to liability on Suburban and Phillips. He characterizes the attempt to serve Phillips as unavailing. JBI’s attorney had no idea as to whether Sentry received notice of the April 1993 final judgment and he does not recall forwarding a copy of the judgment to Sentry. (Docket Entry # 170, Ex. K). Although Phillips remembers seeing a notice of default as to Suburban and forwarding it to Kahn & McKenzie, he does not remember seeing the April 1993 entry of final judgment as to Suburban. Rather, he first learned of the judgment in a telephone conversation with JBI’s and Beau-dette’s attorney at an undetermined time. (Docket Entry # 170, Ex. L). Bruce Adamski (“Adamski”), an Environmental Claims Specialist at Sentry, avers that Suburban never demanded that Sentry indemnify it for the April 1993 final judgment. He also attests that Suburban never submitted a claim for any defense costs incurred in the state court action to Sentry for reimbursement. He avers that Suburban never informed Sentry of the entry of the March 1992 default judgment as to liability or the entry of the April 1993 final judgment. According to Adamski, Suburban never forwarded any of these documents to Sentry. In addition, Adam-ski attests that neither JBI nor Beaudette informed Sentry of the March 1992 default judgment as to liability or the April 1993 final judgment. Until the October 1995 demand letter, JBI never made any demand upon Sentry to satisfy the April 1993 final judgment. In fact, the letter was the first notice Sentry received of the existence of the judgment, according to Adam-ski. (Docket Entry # 95). STANDARD OF REVIEW Pending before this court are various motions for partial summary judgment. “Summary judgment is appropriate where there are no genuine disputes as to material facts and the moving party is entitled to judgment as a matter of law.” Saenger Organization, Inc. v. Nationwide Insurance Licensing Associates, 119 F.3d 55, 57 (1st Cir.1997). In this respect, a “genuine” issue exists where “the evidence relevant to the issue, viewed in the light most flattering to the party opposing the motion, [is] sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). “ ‘[M]aterial’ means that a contested issue of fact has the potential to alter the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant.” Smith v. Morse & Company, Inc., 76 F.3d 413, 428 (1st Cir.1996). The moving party bears the initial burden of informing the “court of the basis for the motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). “As to issues on which the summary judgment target bears the ultimate burden of proof, she [or he] cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995); accord DeNovellis v. Shalala, 124 F.3d at 306. Thus, once the moving party makes a proper showing as to the “ ‘absence of evidence to support the nonmoving party’s case,’ the burden of production shifts to the nonmovant,” Dow v. United Brotherhood of Carpenters, 1 F.3d 56, 58 (1st Cir.1993), who may not rest on allegations in his briefs. Borschow Hospital & Medical Supplies, Inc. v. Cesar Castillo, 96 F.3d 10, 14 (1st Cir.1996). Each summary judgment motion is reviewed separately and factual disputes are resolved in favor of the nonmoving party. See Saenger Organization, Inc. v. Nationwide Insurance Licensing Associates, 119 F.3d at 56. In general, the role of summary judgment is “ to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” DeNovellis v. Shalala, 124 F.3d at 305-306. “The test is whether, as to each essential element, there is ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” DeNovellis v. Shalala, 124 F.3d at 306. I. DEFENDANT SENTRY INSURANCE A MUTUAL COMPANY’S MOTION FOR SUMMARY JUDGMENT ON ASSIGNED CLAIMS OF SUBURBAN CONSTRUCTION COMPANY, INC. (DOCKET ENTRY # 92); CROSS-MOTION FOR SUMMARY JUDGMENT ON ASSIGNED CLAIMS OF SUBURBAN CONSTRUCTION COMPANY, INC. (DOCKET ENTRY # 109) As previously noted, Sentry moves for summary judgment on the claims raised by the Suburban Assignees due to the expiration of the relevant statute of limitations. (Docket Entry # 92). Plaintiffs oppose the motion and filed a cross motion for summary judgment on the assigned claims contending that they are not barred by the relevant statute of limitations. (Docket Entry # 109). The assigned claims are for declaratory judgment (Count I), breach of contract (Count VI), negligence and misrepresentation (Count VII) and violation of chapter 93A (Count IX). The relevant limitations periods under state law are: (1) six years for breach of contract, Massachusetts General Laws chapter 260, section 2; (2) four years for violations of chapters 93A and 176D, Massachusetts General Laws chapter 260, section 5A; and (3) three years for negligence and misrepresentation, Massachusetts General Laws chapter 260, section 2A. See McEneaney v. Chestnut Hill Realty Corporation, 38 Mass.App.Ct. 573, 650 N.E.2d 93, 96 (1995) (statute of limitations for misrepresentation claim is three years), review denied, 420 Mass. 1107, 652 N.E.2d 146 (1995). As assignee of Suburban’s claims against Sentry, the Suburban Assignees have no greater rights against Sentry than Suburban had against Sentry. See Graves Equipment, Inc. v. M. DeMatteo Construction Company, 397 Mass. 110, 489 N.E.2d 1010, 1012 (1986); see also Unisys Finance Corporation v. Hackel Organization, Inc., 42 Mass.App.Ct. 275, 676 N.E.2d 486, 490 (1997), review denied, 424 Mass. 1109, 679 N.E.2d 558 (1997). Thus, if Suburban’s claims are barred by the statute of limitations then the Suburban Assignees’ claims are also barred. See, e.g., Seney v. Prudential Property & Casualty Insurance Company, 1997 WL 835052 at * 4 (Mass.Super. Dec.23, 1997) (driver with insurance policy assigned rights against insurance company to injured passenger who was subject to limitations defense raised by insurer with breach of contract claim accruing on the date insurer denied coverage to insured driver). The relevant framework is therefore whether, at the time plaintiffs filed suit on March 11, 1996, Suburban’s declaratory judgment, chapter 93A, negligence and misrepresentation or breach of contract claims had expired under the applicable statute of limitations. See, e.g., Seney v. Prudential Property & Casualty Insurance Company, 1997 WL 835052 at * 4 (Mass.Super. Dec.23, 1997) (in determining viability of injured passenger/assignee’s claims, “question is whether [the insured] would have a Chapter 176D and Chapter 93A claim against [insurance company]”). A. Declaratory Judgment Claim “In determining which if any statute of limitations applies to a claim, the court must look to the essential nature of that claim.” Department of Revenue of the Commonwealth of Massachusetts v. The Mailhouse, Inc., 1997 WL 573212 at * 3 (Mass.Super. Aug.5, 1997); accord Gilbert v. City of Cambridge, 932 F.2d 51, 57 (1st Cir.) (court must focus on substance of claim as opposed to its form as one for declaratory relief or damages), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991). An action for declaratory relief “is a procedural device” and therefore time barred to the extent the direct or underlying substantive claim is also time barred. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993); see also Stefanick v. Planning Board of Uxbridge, 39 Mass.App.Ct. 418, 657 N.E.2d 475, 478 (1995) (“permissible expedient of a complaint for declaratory relief ... does not suspend” application of statute of limitations), review denied, 422 Mass. 1104, 661 N.E.2d 935 (1996). The Suburban Assignees’ request for declaratory relief in Count I is therefore “barred to the same extent that the claim for substantive relief on which it is based would be barred.” International Association of Machinists and Aerospace Workers v. Tennessee Valley Authority, 108 F.3d 658, 668 (6th Cir.1997); see, e.g., Page v. Le-Roux, 43 Mass.App.Ct. 708, 685 N.E.2d 1205, 1207 n. 2 (1997) (complaint seeking declaratory relief as to ownership of property interest under partnership agreement subject to six year limitations period applicable to breach of contract claims). Stated otherwise, where, as here, the legal and equitable claims coexist, the equitable relief of a declaratory judgment “will be withheld if an applicable statute of limitations bars the concurrent legal remedy.” Gilbert v. City of Cambridge, 932 F.2d at 57. The substance of the claim for declaratory relief under the subject insurance policies, is contractual in nature. See Berkshire Mutual Insurance Company v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1189 (1996) (applying six year contractual period to declaratory judgment action based on uninsured motorist policy). The Suburban Assignees, as well as Beaudette and JBI, seek a declaration that “[t]he judgment was covered” under the 1987 and/or 1988 CLP and umbrella policies, the absolute pollution exclusions were not part of the policies and/or did not become effective until received by Sentry on April 8, 1988, and that Sentry had a duty to defend and to indemnify Suburban in the state court action for its negligent acts. (Docket Entry # 51). The substance of these allegations appears contractual in nature. As such, the declaratory judgment claim is subject to the six year limitations period applicable to contract actions. The basis of the declaratory relief that Sentry had a duty to defend and to indemnify Suburban is the contractual promise to pay defense costs and to indemnify Suburban against any judgment, settlement or final resolution of the state court action. For reasons stated in the next section, the Suburban Assignees’ declaratory judgment claim is barred to the extent it seeks a declaration of Sentry’s duty to defend (Docket Entry # 51, ¶ 48(g)) and not barred to the extent it seeks a declaration of Sentry’s duty to indemnify or a declaration that the judgment in the state court action was a covered loss under the 1987 and/or 1988 CLP and umbrella policies. The basis of the declaratory relief that the special pollution exclusion endorsements were not part of the policies or did not become effective until April 8, 1988 (Docket Entry # 51, ¶¶ 48(d) & (e)), is the contractual terms of the policies and therefore subject to the six year limitations period. Sentry’s breach occurred, if at all, by 1989 inasmuch as the Suburban Assignees fail in their burden of presenting facts of Sentry’s involvement after 1989. See Saenger Organization, Inc. v. Nationwide Insurance Licensing Associates, Inc., 119 F.3d at 65. These declaratory judgment claims, to the extent independent of Sentry’s duty to indemnify Suburban for the final judgment in the state court action, are therefore untimely. B. Breach of Contract Claim The parties do not dispute that under Massachusetts law a cause of action for breach of contract begins to accrue at the time of the breach. See Saenger Organization, Inc. v. Nationwide Insurance Licensing Associates, Inc., 119 F.3d at 64. Rather, they dispute the determinative date of the breach. Sentry contends that the breach occurred when Sentry refused to defend' and indemnify Suburban in March and April 1989 as set forth in the aforementioned letters. Gross then reiterated the denial of coverage in the subsequent letters in June and July 1989. The Suburban Assignees contend that the pertinent date is the April 1993 final judgment in the state court action. According to the Suburban Assignees, an in- • surer’s breach of both the duty to defend and the duty to indemnify occurs upon entry of a final judgment. Neither party sufficiently distinguishes between the duty to defend and the duty to indemnify under the policies for purposes of the breach of contract claim. See generally Travelers Insurance Company v. Waltham Industrial Laboratories Corporation, 883 F.2d 1092, 1100 (1st Cir.1989) (criticizing litigant’s argument as overlooking distinction between duty to defend and duty to indemnify). These dual obligations undertaken by Sentry, however, are distinct. See Sterilite Corporation v. Continental Casualty Company, 17 Mass.App.Ct. 316, 458 N.E.2d 338, 341 n. 4 (1983), review denied, 391 Mass. 1102, 459 N.E.2d 826 (1984). The contractual duty to defend is dependent upon commencement of a lawsuit, see Hall v. Allstate Insurance Company, 880 F.2d 394, 399 (11th Cir.1989) (“duty to defend was conditioned upon commencement of a suit against [the insured]”), and “is measured by the allegations of the underlying complaint.” Travelers Insurance Company v. Waltham Industrial Laboratories Corporation, 883 F.2d at 1099. In contrast, the duty to indemnify is dependent upon the entry of a final judgment, settlement or final resolution by other means. See Bankwest v. Fidelity & Deposit Company of Maryland, 63 F.3d 974, 978 (10th Cir.1995 ) (citing Travelers Insurance Company v. Waltham Industrial Laboratories Corporation, 883 F.2d at 1099). In short, whereas the duty to defend is measured by the allegations of the underlying complaint, the duty to indemnify is measured by the facts as they unfold at trial or are inherent in the settlement agreement. See Travelers Insurance Company v. Waltham Industrial Laboratories Corporation, 883 F.2d at 1099-1100. Under Massachusetts law, which governs this dispute, a cause of action accrues at the time of the breach for statute of limitations purposes “even though a specific amount of damages is unascertainable at the time of the breach or even if damages may not be sustained until a later time.” International Mobiles Corporation v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass.App.Ct. 215, 560 N.E.2d 122, 126 (1990). As reasoned by the Massachusetts Supreme Judicial Court (“the SJC”), “Pri- or to the time when the contract is violated, there is no justiciable controversy, and it would be illogical to let the statute of limitations for bringing an action begin to run before the action can be brought.” Berkshire Mutual Insurance Company v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1189 (1996); accord Cardin v. Pacific Employers Insurance Company, 745 F.Supp. 330, 334 (D.Md.1990) (“ ‘accrual of a cause of action means a right to institute and maintain suit; i.e., whenever one person may sue another a cause of action has accrued and the statute [of limitations] begins to run’ ”). Although Massachusetts law applies to this dispute, unfortunately, the parties fail to cite to a Massachusetts case where the court determined, as a necessary basis for its decision, the accrual date of a breach of contract claim alleging a breach of the duty to defend or to indemnify between an insured and his insurer under a comprehensive general liability or umbrella policy. In International Mobiles Corporation v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass.App.Ct. 215, 560 N.E.2d 122 (1990), relied upon by Sentry, the insured filed breach of contract and negligence claims against an insurance agent who failed to procure adequate coverage. Accordingly, the court in International Mobiles identified the breach as the date the agent failed to obtain adequate insurance coverage. In contrast, the Suburban Assignees filed an action against Sentry for breach of the duty to defend and the duty to indemnify. Thus, in contrast to the breach of the insurance agent’s contract with the insured by the insurance agent’s failure to obtain coverage in International Mobiles, the breach at issue in the case at bar involves either Sentry’s failure to defend Suburban in the state court action or its failure to pay the sums which Suburban became legally obligated to pay as damages. Likewise, in another case relied upon by Sentry, Berkshire Mutual Insurance Company v. Burbank, 422 Mass. 659, 664 N.E.2d 1188 (1996), the SJC construed underinsured motorist benefits under a policy which stated that, “[T]he determination as to whether an injured person is legally entitled to recover damages from the owner or operator of a responsible auto will be” by arbitration if the parties cannot agree. Berkshire Mutual Insurance Company v. Burbank, 664 N.E.2d at 1189. Hence, the SJC decided that the breach occurred and the limitations period began to run when the insurer violated the contract by refusing to submit to arbitration. Berkshire Mutual Insurance Company v. Burbank, 664 N.E.2d at 1188-1190. In so doing, the SJC cited to a number of analogous decisions in the area of underinsured motorist benefits. As paraphrased by the SJC in Berkshire Mutual, those courts concluded that the limitations period began to run on various dates, including the date when the insurer refused to pay and when the insurer first denied coverage. Berkshire Mutual Insurance Company v. Burbank, 664 N.E.2d at 1190 n. 5. The Suburban Assignees cite to a number of cases, Ghaly v. First American Title Insurance Company of New York, 228 A.D.2d 551, 644 N.Y.S.2d 770 (1996) (cause of action for breach of duty to defend accrues upon termination of underlying litigation); Kielb v. Couch, 149 N.J.Super. 522, 374 A.2d 79 (1977) (cause of action for reimbursement of defense costs did not accrue until termination of underlying litigation in light of no action clause and inability to determine all of defense costs), which rely or cite to Ginn v. State Farm Mutual Automobile Insurance Company, 417 F.2d 119 (5th Cir.1969) (cause of action on liability insurance with “no action” clause cannot be maintained until issuance of final judgment against insured), which is no longer good law, Hall v. Allstate Insurance Company, 880 F.2d 394, 397-398 (11th Cir.1989). Although the policies at issue in this case contain no action clauses, the SJC’s decision in Ratner v. Canadian Universal Insurance Company, 359 Mass. 375, 269 N.E.2d 227, 229 (1971), prevents an application of the clause as a means to bar an insured’s cause of action against the insurer for breach of the duty to defend. See Paul Holt Drilling, Inc. v. Liberty Mutual Insurance Company, 664 F.2d 252, 254 (10th Cir.1981) (citing Ginn and Kielb as the minority view holding that no action clauses cause limitations period to begin to run at conclusion of underlying litigation and Ratner as the majority view of “most courts” that such clauses do not apply to suits brought by insureds against insurers for breach of duty to defend). It is therefore unlikely that a Massachusetts court would follow decisions which rely, in whole or in part, on no action clauses as a means to forego triggering the limitations period until issuance of a final judgment in an action alleging breach of the duty to defend. The remaining cases cited by the Suburban Assignees are either outdated and based on a no action clause, Creem v. Fidelity & Casualty Company of New York, 206 N.Y. 733, 100 N.E. 454 (1912), or do not apply Massachusetts law, Tibbs v. Great American Insurance Company, 755 F.2d 1370, 1375 (9th Cir.1985) (applying California law); Employers’ Fire Insurance Company v. Continental Insurance Company, 326 So.2d 177 (Fla.1976) (limitations period begins to run on duty to indemnify on date judgment was entered under Florida law). Mindful that Massachusetts and First Circuit cases distinguish between the duty to defend and the duty to indemnify, Dryden Oil Company of New England, Inc. v. Travelers Indemnity Company, 91 F.3d at 282, 285 n. 7 & 290; Travelers Insurance Company v. Waltham Industrial Laboratories Corporation, 883 F.2d at 1099; Shapiro v. Public Service Mutual Insurance Company, 19 Mass.App.Ct. 648, 477 N.E.2d 146, 151 (1985), review denied, 395 Mass. 1102, 480 N.E.2d 24 (1985); Sterilite Corporation v. Continental Casualty Company, 458 N.E.2d at 341 n. 4, this court examines these duties separately to determine the date of the breach. Turning to the contractual obligation to defend, this duty, as previously explained, depends upon the allegations in the underlying lawsuit. Assuming that the allegations in the state court action were “reasonably susceptible of an interpretation that they state or adumbrate a claim covered by the policy terms,” Dryden Oil Company of New England, Inc. v. Travelers Indemnity Company, 91 F.3d at 282 (internal quotation marks omitted); Sterilite Corporation v. Continental Casualty Company, 458 N.E.2d at 340 (“initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions”), Sentry had a duty to defend Suburban when the state court action was filed in March 1989. It also unequivocally denied coverage and its responsibility to defend Suburban in the state court action in the March 17, 1989 letters and reaffirmed the denial in subsequent letters up to and including the July 20, 1989 letter from Gross to JBI’s attorney. By April 1989 Suburban had retained counsel and, accordingly, began incurring defense costs. (Docket Entry # 147, Ex. 25; Docket Entry # 170, Ex. O). The fact that the exact amount of such defense costs remained unknown does not prevent the accrual of the breach of contract claim. See International Mobiles Corporation v. Corroon & Black/Fairfield & Ellis, Inc., 560 N.E.2d at 126. Having carefully considered the issue, this court believes that the SJC would find that Sentry breached its duty to defend Suburban in 1989 when the state court action was filed and Sentry unequivocally refused to defend Suburban in the litigation. At that point in time, Suburban had the capability of filing a declaratory judgment against Sentry for breach of its duty to defend. Following the thorough reasoning of the courts in Trustees of the International Brotherhood of Electrical Workers Local 98 Pension Plan v. Aetna Casualty & Surety Company, 1999 WL 116285 at * 2-4 (E.D.Pa. March 5, 1999) (breach of contractual duty to defend accrued when insurer failed to appoint competent counsel to defend insured); Cardin v. Pacific Employers Insurance Company, 745 F.Supp. 330, 332-335 (D.Md.1990) (statute of limitations for breach of duty to defend began to accrue when insurer denied insured’s request for payment of attorney’s fees for defending insured), Suburban’s claim against Sentry for breach of its duty to defend Suburban in the state court action accrued in March 1989 and certainly no later than August 1989. Inasmuch as Beaudette and JBI filed this suit on March 11, 1996, the contract claim raised by the Suburban Assignees that Sentry breached its duty to defend Suburban in the state court action is time barred. Citing Ratner v. Canadian Universal Insurance Company, 359 Mass. 375, 269 N.E.2d 227 (1971), however, a case involving an insurer’s breach of the duty to defend, the Suburban Assignees quote the SJC’s statement that an insured, after a refusal to defend, “can declare upon the policy and can assign as breach either the refusal to defend or the later refusal to pay.” Ratner v. Canadian Universal Insurance Company, 269 N.E.2d at 229. The SJC, however, was not addressing a statute of limitations issue but, rather, a claim by the insurer that the no action clause made the suit premature. Ratner v. Canadian Universal Insurance Company, 269 N.E.2d at 228-229. In addition, none of the cases cited by the SJC for this principle involve a statute of limitations issue. The principle in Ratner, therefore, does not detract from the fact that the alleged breach of the duty to defend in the case at bar occurred when JBI filed suit against Suburban, Suburban began to accrue defense costs and Sentry denied coverage for Suburban’s defense costs. With respect to the contractual duty to indemnify, the duty does not arise until issuance of a judgment, settlement or final resolution wherein the insured becomes legally obligated to pay damages. See generally 8 John Alan Appleman Insurance Law and Practice § 4851 (1981). Institution of a suit prior thereto is premature because the insurer’s breach of the duty to indemnify may never occur if the insured is found not liable in the underlying action. Moreover, up until entry of a judgment, settlement or final resolution against the insured, the insurer may rescind an earlier denial of coverage and agree to pay the judgment. Thus, in recognizing that the duty to indemnify is distinct from the duty to defend, the Massachusetts Appeals Court in Sterilite Corporation v. Continental Casualty Company, 458 N.E.2d at 341 n. 4, cited and relied upon Spoor-Lasher Company, Inc. v. Aetna Casualty and Surety Company, 39 N.Y.2d 875, 386 N.Y.S.2d 221, 352 N.E.2d 139 (1976), wherein the court concluded “that any determination as to the obligation of the insurer to indemnify its insured would now be premature and must await the resolution of the underlying claim.” Spoor-Lasher Company, Inc. v. Aetna Casualty and Surety Company, 386 N.Y.S.2d 221, 352 N.E.2d at 140. The contractual language of the policies defining the parties’ obligations confirms that Sentry had no duty to indemnify Suburban until Suburban became legally obligated to pay damages for-property damage caused by an occurrence under the particular policy. Under the CLP policies, Sentry agreed to pay all sums which Suburban became “legally obligated to pay as damages” due to property damage caused by an occurrence. (Docket Entry # 147, Ex. 1 & 2). The umbrella policies contain the similar obligation to pay all sums for which Suburban “shall be obligated to pay by reason of legal liability for damages” provided that such legal liability for damages results from property damages “caused by an occurrence.” (Docket Entry # 147, Ex. 1 & 2). Irrespective of the no action clauses, therefore, the language of the policies conditioned Sentry’s duty to indemnify upon Suburban incurring a legal liability for damages. See generally 8 John Alan Appleman Insurance Laio and Practice § 4851 (1981) (language in policy insuring against “liability imposed by law” requires final judgment). Stated otherwise, the duty did not arise until Suburban became legally obligated to pay damages. Nevertheless, Sentry unequivocally manifested an intention not to perform its obligation to indemnify Suburban in March and April 1989, prior to the time when its performance was due. Sentry argues that such conduct repudiated the agreement and constituted the requisite breach for purposes of the accrual of the statute of limitations. It is true that Sentry’s unequivocal manifestation of an intention not to indemnify Suburban repudiated the agreement to indemnify Suburban. See generally Thermo Electron Corporation v. Schiavone Construction Company, 958 F.2d 1158, 1164 (1st Cir.1992). Specifically, Sentry’s March 17,1989 denial of coverage letter to Phillips (Docket Entry # 95, Ex. B) and its follow up April 14, 1989 letter to Phillips denying its duty to defend and duty to indemnify (Docket Entry # 147, Ex. 25) constituted an anticipatory repudiation of Sentry’s promise to indemnify Suburban for any legal liability for damages resulting from an occurrence within the meaning of the policies. A party’s repudiation of a bilateral contract excuses the nonbreaching party from further performance. See Thermo Electron Corporation v. Schiavone Construction Company, 958 F.2d at 1164; La Vallee v. Cataldo, 343 Mass. 332, 178 N.E.2d 484, 485 (1961). The doctrine of anticipatory repudiation, however, only applies to bilateral contracts. See Jackson v. American Can Company, Inc., 485 F.Supp. 370, 376-375 (W.D.Mich.1980). At the time Sentry repudiated the agreement to indemnify Suburban in 1989, Suburban had, presumably, already fully paid its premiums for the 1987 and 1988 policies. More significantly, in sharp contrast to other jurisdictions, “Massachusetts has not generally recognized the doctrine of anticipatory repudiation, whic