It’s not often that judges encourage litigants to appeal their decisions so they will be reversed. But Manhattan Supreme Court Justice Shirley Kornreich did just that in an April 8, 2014, decision in Madison 96th Associates v. 17 East Owners Corporation, which denied an attorney fee award to a prevailing plaintiff in a declaratory judgment action against its insurer, due to its wrongful refusal to provide it with a defense in a third-party action.1
From the perspective of this author, who is an insurance policyholder advocate, Kornreich was correct—her decision should be reversed. Her invitation highlights an oddity in New York law that a prevailing insured in a declaratory judgment action against its insurer for a breach of the duty to defend is only entitled to an attorney fee award if it is a defendant in the case. This is known as the “Mighty Midgets” rule, having been established by the Court of Appeals in a 1979 decision Mighty Midgets v. Centennial Insurance Company, 47 N.Y.2d 12 (1979).
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