Harpy v. Nationwide Mut. Fire Ins. Co.

• Decision Date: 01 September 1987
• Docket Number: No. 1666,1666
• Citation: 76 Md.App. 474,545 A.2d 718
• Parties: Cheryl J. HARPY, a Minor, etc. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. ,
• Court: Court of Special Appeals of Maryland

Page 474

76 Md.App. 474

545 A.2d 718

Cheryl J. HARPY, a Minor, etc. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.

No. 1666, Sept. Term, 1987.

Court of Special Appeals of Maryland.

Aug. 9, 1988.

James K. Carmody, Annapolis (John A. Blondell, Glen Burnie, on the brief), for appellants.

John R. Greene (Goodman, Cohen & Bennett P.A., on the brief), Annapolis, for appellee.

Argued before GARRITY, ROBERT M. BELL and POLLITT, JJ.

POLLITT, Judge.

Cheryl J. Harpy sued her father, Joseph T. Harpy, Jr., in the Circuit Court for Anne Arundel County for (1) assault and battery, (2) intentional infliction of emotional distress, and (3) negligence. The factual allegations in all three counts were, in essence, that during the years 1979 through 1984, when Cheryl was between 9 and 13 years old, her father sexually abused her in various ways, including sexual intercourse.

During the period covered by the alleged abuse, Nationwide Mutual Fire Insurance Company had issued two policies of homeowner's insurance to Mr. Harpy. Harpy made demand of Nationwide that it provide a defense in the sexual abuse case based on the aforesaid insurance policies. Nationwide filed a complaint for Declaratory Judgment, seeking a declaration that neither of the policies affords any defense or coverage. Pursuant to Rule 2-501, Nationwide moved for summary judgment. Based on the pleadings, the contracts of insurance and the affidavit of Mr. Harpy, the trial court (Goudy, J.) determined that there were no disputes as to material facts and that Nationwide was entitled to judgment as a matter of law. From the judgment entered on those findings, this appeal ensued.

Appellants present two issues for our consideration, which they state as:

I. Was it appropriate for the court to decide the Declaratory Judgment action?

II. Assuming that it was appropriate for the court to decide the Declaratory Judgment action, did the court err in granting summary judgment to Nationwide?

We find no error, and shall affirm the judgment.

Facts

The undisputed facts of the case include the following. On 14 November 1980, Nationwide issued a policy of insurance to Mr. Harpy, insuring him against loss from damages for "negligent personal acts." It promised to

[d]efend with counsel of its choice any suit against an Insured alleging ... bodily injury, illness ... and seeking damages therefor. Such suit shall be defended even if groundless, false or fraudulent.

and to

pay on behalf of the Insured all sums which he shall become legally obligated to pay (1) as damages because of bodily injury, sickness or disease....

Excluded from the protection afforded by the policy were damages due to bodily injury, illness, or death or property damage caused intentionally by or at the direction of an Insured....

That policy was replaced on 14 November 1984 by a new policy, which promised to pay "damages the insured is legally obligated to pay due to an occurrence," and to "provide a defense at our expense by counsel of our choice." That policy excluded coverage for personal liability as to bodily injury or property damage

which is expected or intended by the insured.

In his answer to the declaratory judgment action, Mr. Harpy admitted "pleading guilty in the Circuit Court for Anne Arundel County" to charges of sexual child abuse. In his affidavit, filed in response to Nationwide's motion for summary judgment, he swore

that I have never taken any action with regard to my daughter, CHERYL J. HARPY, in which I intended or expected that she would suffer the type of injuries that she has alleged in her Complaint against me. [emphasis added]

The injuries alleged in the negligence count of the complaint in the underlying tort action were that Cheryl suffered "extreme and severe emotional distress and mental disorder, requiring necessary treatment by mental health practitioners, in the past, present and in the future."

Further facts will be supplied as necessary.

I

Declaratory Judgment Action is Appropriate

The General Rule

The Maryland Uniform Declaratory Judgments Act, Maryland Code (1984 Repl. Vol.) §§ 3-401 through 3-415 of the Courts and Judicial Proceedings Article, gives the court jurisdiction to construe a written contract and declare the rights of the parties under it. Section 3-406; Northern Assurance Co. v. EDP Floors, 311 Md. 217, 533 A.2d 682 (1987). The subtitle is remedial and shall be liberally construed and administered. Section 3-402.

The court may grant this discretionary relief in order to terminate an actual controversy if "[a] party asserts a legal ... right ... [that] is challenged or denied by an adversary party, who also has or asserts a concrete interest in it." § 3-409(a)(3) of the Courts Article. Thus, when interested parties advance adverse claims upon a state of facts that has accrued, a justiciable controversy exists, and a trial court may enter a declaratory judgment.

311 Md. at 223, 533 A.2d at 685 (citations omitted; bracketed material in original).

The Act has been utilized frequently in the construction and interpretation of insurance contracts. All the requirements of the Act are present in this case. Mr. Harpy is the named insured in policies issued by Nationwide. Those policies require Nationwide to provide both a defense and indemnification as to claims within their coverage. Harpy asserts that at least one of the claims against him by his daughter is covered. Nationwide says it is not, and seeks an interpretation of its rights under the policy.

The "Brohawn" Exception

In what erroneously has been perceived by many as a departure from established law, the Court of Appeals said, in Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975), that there are occasions when a declaratory judgment action is not an appropriate vehicle by which to determine questions of policy coverage. When there is a pending tort action, and the question sought to be resolved will be fully decided in the tort action, declaratory judgment is inappropriate. This is nothing more than a restatement of the rule that courts generally should not entertain declaratory judgment proceedings when another action is pending in which the same issues will be determined. See A.S. Abell Co. v. Sweeney, 274 Md. 715, 337 A.2d 77 (1975); Watson v. Dorsey, 265 Md. 509, 512 n. 1 290 A.2d 530, 532 (1972); Grimm v. Co. Comm'rs of Wash. Co., 252 Md. 626, 250 A.2d 866 (1969).

In Brohawn, Ms. Brohawn was sued by employees of a nursing home for both assault and negligence. Her insurance policy excluded coverage for "any act committed by or at the direction of the Insured with intent to cause injury or damage to person or property." 276 Md. at 400, 347 A.2d at 846. There was a factual dispute as to whether her physical contact with the plaintiffs was intentional or accidental. That question would be resolved in the underlying tort action. If that trial determined her actions were intentional, there was no insurance coverage; if her actions were determined to be accidental but negligent, there was coverage.

Cases in which this Court, relying on Brohawn, has held declaratory judgment inappropriate include Allstate Ins. Co. v. Atwood, 71 Md.App. 107, 523 A.2d 1066, cert. granted, 310 Md. 274, 528 A.2d 1286 (1987); Travelers Indem. v. INA, 69 Md.App. 664, 519 A.2d 760 (1987); and Ohio Casualty Ins. v. Lee, 62 Md.App. 176, 488 A.2d 988, cert. denied, 303 Md. 471, 494 A.2d 939 (1985).

In Allstate the issue of intentional battery as opposed to negligent contact had already been litigated in the underlying tort action, in which the insurer had elected not to participate. We said the question could not be relitigated in the declaratory judgment case. In Travelers Indemn. we said the factual determination of an employee status should have been decided in an underlying tort case. In Ohio Casualty the trier of fact in the tort case would determine whether Lee was acting as a director, stockholder or employee of the insured, and the resolution of that factual question would determine coverage. In all those cases the issue was not an interpretation of an allegedly ambiguous insurance policy. The issue was a factual dispute which necessarily would be resolved in the tort case.

The holding in Brohawn was further explained by the Court of Appeals in St. Paul Fire & Mar. Ins. v. Pryseski, 292 Md. 187, 438 A.2d 282 (1981), where it said:

In determining whether a liability insurer has a duty to provide its insured with a defense in a tort suit, two types of questions ordinarily must be answered: (1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? (2) do the allegations in the tort action potentially bring the tort claim within the policy's coverage? The first question focuses upon the language and requirements of the policy, and the second question focuses upon the allegations of the tort suit. At times these two questions involve separate and distinct matters, and at other times they are intertwined, perhaps involving an identical issue.

The "rule" ... that the insurer has a duty to defend if the allegations of the tort suit raise a "potentiality" that coverage exists, is generally applicable only to the second question set forth above. It may, however, be applicable to an issue raised under the first question set forth above if that issue must also be resolved in the underlying tort suit.

Normally, however, when the question of coverage or defenses under the language or requirements of the insurance policy is separate and distinct from the issues involved in the tort suit, the "potentiality rule" ... has no application. Instead, in a declaratory judgment action like the instant one, presenting an independent coverage issue under the terms of the policy, it is the function of the court to interpret the policy and decide whether or not there is coverage. If such a coverage issue depends upon language of the policy which is ambiguous,...