(dissenting). The majority's decision makes an insurance company take calculated and expensive risks should it decide to deny coverage, no matter how bizarre the facts, because it is possible that it will be responsible for the attorney fees of the other side if the company loses on the issue.
*326It is clear that a liability insurer has a contractual duty to defend its insured in an action for damages. See Gross v. Lloyds of London Ins. Co., 121 Wis. 2d 78, 84, 358 N.W.2d 266 (1984). However, when the coverage trial precedes a trial on liability and damages, the insurance company is not required to provide a free defense.
In the case of Mowry v. Badger State Mut. Cas., 129 Wis. 2d 496, 385 N.W.2d 171 (1986), Badger State initially denied coverage but it expressly assumed the defense of the insured after the coverage trial and after a jury determined that coverage existed. In Mowry, we concluded that Badger was not required to provide a free defense because the coverage trial preceded a trial on liability and damages. That is exactly what happened in the present case. Thus, Heritage is required to provide a defense only after a final determination on coverage is made.
The declaratory judgment statute, sec. 806.04(8), Stats., for supplemental relief does not include the awarding of attorney fees. The majority, without support, reads attorney fees into that section. Declaratory judgment cases are treated as any other causes of action. Each side is required to pay its own attorney fees until Wisconsin adopts a different rule. There are some statutes which specifically allow attorney fees to the winning side, but this is not one.
Walworth county circuit court Judge James L. Carlson correctly concluded that attorney fees were not appropriate in this case. He stated:
I think the Mowry case does in fact stand for the proposition that in the absence of bad faith, the attorney for the insurance company is entitled to try out the coverage issue without basically being — I forget what the wording is — blackmailed or whatever the language was there, and in that case it quite sim*327ply said when the insurance company follows that procedure and there's a meritable defense to the coverage issue, and I certainly think that's the case here — I think certainly a stronger case perhaps than the Mowry case based on this conflicting statement. Certainly I don't think there's any way the Court can grant other than the statutory attorney fees.
The facts that developed from the investigation certainly entitled Heritage to deny coverage and have the issue determined first at trial.1 Even Donahue's attorney admitted at oral argument that Heritage's denial of coverage was done in good faith. I contend that even if the insured wins the case, the insured should not automatically be entitled to attorney fees. This should be true particularly when the insurance company acts in good faith.
The majority quotes from Appleman, Insurance Law & Practice, sec. 4691 at 281-83 (Berdal ed. 1979) to explain equitable considerations. Majority op. at 322-323. Appleman states that some courts have required insurance companies to pay insured attorney fees based on "the assumption that the expenses were incurred at 'the request of the insurer' and therefore came within the policy provision for reimbursement of the insured for reasonable expenses, or on the theory that since suit was brought by a third party, the insurer owes a duty to defend." Id. (Emphasis added.) The majority, however, fails to discuss what is actually stated *328in the policy and agreed upon by the parties. Appleman deals with equitable relief, whereas, here we are applying a contract.
Certainly, in the instant case, to state that Heritage "requested" Donahue to obtain the services of an attorney in the coverage issue is unfounded and a misuse of language. First, the word "request" is not in the relevant portion of the policy. Second, "request" is defined in Webster's Third New International Dictionary (1967) as follows: "request . . . the act of asking for something as an object, a favor, or some action desired." Heritage did not "ask" Donahue to obtain the services of an attorney.
On the other hand, the word "advise" is found in the appropriate portion of the policy and is therefore the appropriate term to apply to this case. Webster's Dictionary defines the term "advise" as follows: "to give advice, to counsel . . . caution, warn." The difference between the term "request" and "advise" is obvious. They are not even close in meaning, and one cannot be substituted for the other. The majority opinion is therefore in error.
The majority's unequitable exception to the American rule now offers insurance companies only a theoretical right to have coverage determined before liability attaches to the policy. Perhaps it would have been better if the majority had declared that the American rule regarding attorney fees was no longer controlling and allowed the victor in all litigation to be entitled to recover attorney fees. The majority attempts to draw a distinction between insurance companies and all other litigants but does not recognize that a company is a conglomeration of its policyholders.
Heritage was at all times ready to pay attorney fees incurred by the insured on liability discovery and, therefore, the discussion of staying the liability issue as in *329Mowry in no way affects the case as the majority implies.
For the reasons set forth above, I dissent and would affirm the judgment of the circuit court for Walworth' County by denying attorney fees to Michael Donahue.
The insurance company's investigation showed that Donahue's drivers license had been revoked for almost a year. Both Donahue's father and stepmother had told Donahue not to drive. The car owner's brother heard the owner tell Donahue he was not to use the car on the day of the accident. At the scene of the accident Donahue admitted to investigating police officers that he did not have permission to drive the car.