Maine Mut. Fire Ins. Co. v. Gervais, Docket No. A

• Decision Date: 03 August 1998
• Docket Number: Docket No. A
• Citation: 715 A.2d 938
• Parties: MAINE MUTUAL FIRE INSURANCE CO. v. Rainald A. GERVAIS, Sr. ro-97-638.
• Court: Maine Supreme Court

Page 938

715 A.2d 938

1998 ME 197

MAINE MUTUAL FIRE INSURANCE CO. v. Rainald A. GERVAIS, Sr.

Docket No. Aro-97-638.

Supreme Judicial Court of Maine.

Submitted On Briefs June 22, 1998.

Decided Aug. 3, 1998.

John C. Walker, Windham, for plaintiff.

William J. Smith, Van Buren, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

SAUFLEY, Justice.

¶1 Rainald Gervais appeals from a judgment entered in the Superior Court (Aroostook County, Marden, J.) in favor of his liability insurer, Maine Mutual Fire Insurance Company. Because we conclude that Maine Mutual had a duty to defend Gervais against a lawsuit filed by his former employee, we vacate the judgment.

¶2 This matter arises out of litigation between Aurel Lavoie and Rainald Gervais, Sr. ¹ Lavoie was employed at a farm owned by Gervais or one or more corporations controlled by him. After sustaining a work-related injury, Lavoie petitioned for workers' compensation benefits. The Workers Compensation Board dismissed the petition on the ground that Lavoie was employed by Gervais, not the corporations, and that Gervais was an exempt agricultural employer carrying liability insurance. See 39-A M.R.S.A. § 401(1)(C) (Supp.1997).

¶3 Lavoie and his wife then commenced a civil action against Gervais, setting forth claims for negligence and loss of consortium. Pursuant to the terms of an employer's liability policy issued to Gervais, Maine Mutual provided Gervais with a defense. Following a jury trial, judgment in the amount of $30,000 was entered in favor of the Lavoies. ²

¶4 During the pendency of the negligence action, but prior to trial, the Lavoies filed a six-count complaint against nine defendants, including Gervais, two related corporations, and Maine Mutual. The complaint alleged a deprivation of Aurel Lavoie's rights and remedies under the Workers Compensation Act and before the Superior Court, violations of the Maine Civil Rights Act, abuse of process, tortious breach of contract and interference with contractual relations, and negligent and intentional infliction of emotional distress. ³ Each of these claims was predicated on the conduct of Gervais or his agents during the litigation of the workers' compensation petition and the negligence action. The Superior Court succinctly described the gravamen of the emotional distress complaint:

Mr. Lavoie's underlying complaint charges [Gervais] with making intentional misrepresentations during his course of conduct subsequent to an injury received by the plaintiff while in the employ of Mr. Gervais which has resulted in alleged deprivation of rights in proceedings before the Workers' Compensation Commission and the Maine Superior Court. Mr. Lavoie claims entitlement to specific special damages which he now asserts he would have received had he successfully obtained workers' compensation benefits and damages for emotional distress.

¶5 In July 1994, the Lavoies filed a satisfaction of judgment in the negligence action, stating that they received from Maine Mutual $30,000 plus $5,000 "towards pre and post-judgment interest and costs ...." On the same day, the Lavoies dismissed Maine Mutual as a defendant and amended the emotional distress complaint to delete any allegations of negligence by Gervais. ⁴ Maine Mutual subsequently commenced the instant action seeking a declaration that it had no duty to defend or indemnify Gervais against the Lavoies' emotional distress complaint. When the Superior Court entered a summary judgment in favor of Gervais on all counts of the emotional distress complaint, the court determined that Maine Mutual's declaratory judgment complaint was moot and declined to take action on it. However, upon appeal of the summary judgment, both parties asked the court to reopen the declaratory judgment action, and the matter proceeded to hearing on cross-motions for judgment.

¶6 After hearing, the court held that Maine Mutual had no duty to defend Gervais against the Lavoies' emotional distress complaint. The court concluded that the only operative claim in the Lavoies' complaint that could possibly implicate coverage under the policy was the intentional infliction of emotional distress claim, a claim for which the policy would not provide coverage. In particular, the court cited the exclusion for damages "intended or expected" by the insured and found that "the intentional or reckless infliction of emotional distress with certain or substantially certain results of distress is sufficiently consistent with an action of a party that he or she subjectively wanted or subjectively foresaw as a practically certain result of their conduct such as to preclude the application of the contract in issue ." This timely appeal by Gervais followed.

¶7 "Whether an insurer has a duty to defend its insured against a complaint brought by a third party is a question of law[,]" Northern Sec. Ins. Co. v. Dolley, 669 A.2d 1320, 1322 (Me.1996), and we review the trial court's decision de novo. See Vigna v. Allstate Ins. Co., 686 A.2d 598, 599 (Me.1996). Under the comparison test, an insurer's duty to defend its insured against third party claims is determined by comparing the allegations in the complaint with the terms of the insurance policy. Dolley, 669 A.2d at 1322. "If the general allegations in the complaint could give rise to any set of facts that would establish coverage, then the insurer has a duty to defend." Id.

¶8 The parties do not dispute the court's conclusion that the only claim for which coverage may have been required is the claim of intentional infliction of emotional distress. Their disagreement centers on whether that claim triggers Maine Mutual's duty to defend. Maine Mutual contends that it does not, because the basis for the entire complaint--Gervais's conduct during the litigation--was not an "occurrence," which is defined in the policy as an accident. ⁵ Maine Mutual further contends that the exclusion for expected or intended bodily injury applies to a claim of intentional infliction of emotional distress.

¶9 Maine Mutual's contentions fail for two reasons. First, the accidental nature of an act depends on the unintended nature of the consequences of the act, rather than the intentional nature of the act itself. And second, a claim for intentional infliction of emotional distress does not necessarily seek damages falling within the intended or expected bodily injury exclusion. Accordingly, as set forth below, a focused application of the comparison test reveals that a duty to defend existed.

¶10 We begin with the relevant coverage provision which provides: "If a ... suit is brought against any 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence' to which this coverage applies, we will ... provide a defense at our expense by counsel of our choice." The policy defines the term "occurrence" as an "accident ... which results in ... 'bodily injury' or 'property damage.' " Although the term "accident" is not defined in the policy, we defined an accident in this context as "an unanticipated event." See Vigna, 686 A.2d at 600. Crucial to the understanding of this coverage provision is our ruling that "[t]he 'accidental' nature of an event for purposes of a standard liability insurance contract ... does not derive from the voluntariness of the act, but rather from the unintentional nature of the consequences flowing from the act." Id. (citing Gibson v. Farm Family Mut. Ins. Co. ., 673 A.2d 1350 (Me.1996)).

¶11 We next review the policy provision excluding coverage for "bodily injury or property damage which is either expected or intended from the standpoint of the insured." This standard exclusion "refers only to bodily injury that the insured in fact subjectively wanted ('intended') to be a result of his conduct or in fact subjectively foresaw as practically certain ('expected') to be a result of his conduct." Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888, 892 (Me.1981). In Burns v. Middlesex Ins. Co., 558 A.2d 701 (Me.1989), we examined this exclusion in the context of intentional torts allegedly committed by the insured. In concluding that the insurer had a duty to defend its insured against a complaint setting forth claims for the intentional torts of slander and invasion of privacy, we held that although designated as intentional torts, neither tort required proof "that the tortfeasor ... 'subjectively wanted' or 'subjectively foresaw' bodily injury as the 'practically certain' result of her conduct." Id. at 702-03 (quoting Dodge, 426 A.2d at 892)). We must similarly examine the claim of intentional infliction of emotional distress to determine whether such a requirement exists.

¶12 A careful reading of the elements of the claim reveals that a plaintiff need not prove that the defendant, in fact, wanted the resulting distress to occur or foresaw that distress as a practically certain result of his acts. In Vicnire v. Ford...