Western Nat. Assur. Co. v. Hecker

• Decision Date: 27 May 1986
• Docket Number: No. 7574-1-II,7574-1-II
• Citation: 719 P.2d 954,43 Wn.App. 816
• Parties: WESTERN NATIONAL ASSURANCE CO., Respondent, v. Lynn D. HECKER, a single woman, and Wayne T. Nuzum, Jr., a single man, Appellants.
• Court: Washington Court of Appeals

Page 816

43 Wn.App. 816

719 P.2d 954

WESTERN NATIONAL ASSURANCE CO., Respondent, v. Lynn D. HECKER, a single woman, and Wayne T. Nuzum, Jr., a

single man, Appellants.

No. 7574-1-II.

Court of Appeals of Washington,

Division 2.

May 27, 1986.

[719 P.2d 955] Robert W. Huffhines, Kelso, for Nuzum.

Craig W. Weston, Walstead, Mertsching, Husemoen, Donaldson & Barlow, Longview, for Hecker

Dennis M. Hunter, William L. Dowell, Walker, Dowell, Hunter & Twining, Longview, for respondent.

REED, Acting Chief Judge.

Lynn Hecker and Wayne Nuzum appeal a declaratory judgment denying liability coverage under a homeowner's policy issued to Nuzum by Western National Assurance Co. (Western) for Hecker's claims against Nuzum. The trial court determined that Western had no duty to defend Nuzum and no duty to pay any recovery by Hecker in her action against Nuzum. We affirm.

In March 1983, Hecker commenced an action against Nuzum for personal injuries, emotional distress, and embarrassment resulting from "an intentional and/or negligent assault and battery" committed upon her by Nuzum. Her complaint did not specify the nature of the assault or In her deposition, Hecker stated that in the early morning of October 30, 1982, Nuzum went to her house for the purpose of a sexual encounter. Nuzum and Hecker's relationship had been predominantly sexual in nature. After initial reluctance on Hecker's part on this morning, they engaged in consensual intercourse. However, after Hecker told Nuzum she wanted to stop, Nuzum committed forcible anal intercourse. Hecker suffered physical injuries requiring medical treatment and surgery and emotional injuries requiring psychiatric treatment. Hecker explained that she did not file a rape charge because she was ashamed, embarrassed and afraid.

                of her injuries.   In deposition testimony Hecker and Nuzum gave conflicting versions of the incident giving rise to Hecker's complaint
                

Nuzum contends that, on the morning in question, he had been drinking alcohol and smoking marijuana and that he did not intend to enter Hecker anally nor did he know he had done so.

On the date of the incident in question, Western insured Nuzum on a homeowner's insurance policy. That policy reads, in pertinent part, as follows:

LIABILITY COVERAGE SECTION

PRINCIPAL LIABILITY AND MEDICAL PAYMENTS

COVERAGES

Coverage L--Personal Liability

We pay, up to our limit of liability all sums for which any insured is legally liable because of bodily injury or property damage caused by an occurrence to which this coverage applies. We will defend any suit seeking damages, provided the suit resulted from bodily injury or property damage not excluded under this coverage....

Coverage M--Medical Payments to Others

We pay the necessary medical expenses incurred or medically determined within three years from the date of an accident causing bodily injury to which this coverage applies. This coverage applies only:

* * *

2. To a person away from the insured premises if the bodily injury:

* * * b. is caused by the activities of any insured;

* * *

General Policy Provisions

Definitions

10. Occurrence means an accident, including continuous or repeated exposure to substantially similar conditions.

* * *

EXCLUSIONS

1. Exclusions that Apply to Both Personal Liability and Medical Payments to Others. This policy does not apply to liability:

* * *

h. caused intentionally by or at the direction of any insured ...

(Italics in original.)

In October 1983, Nuzum gave notice of Hecker's claim to Western. Western agreed to handle the claim and provide a defense on Nuzum's behalf, with a reservation of its right to have its duty under the policy determined at a later date. On November 4, 1983, Western exercised that right by filing a complaint for declaratory judgment against both Hecker and Nuzum, alleging that Nuzum's actions had been intentional and are therefore excluded from liability coverage under the terms of the policy. Western asked the court to determine that it had no duty to defend Nuzum against Hecker's claim and no duty to pay any sums recovered by Hecker in her action against Nuzum.

On November 16, 1983, Hecker took a voluntary nonsuit as to her claim for intentional assault and battery, thus leaving "negligent assault and battery" as the sole cause of action against Nuzum.

At the declaratory judgment hearing on December 5, 1983, the parties submitted the case upon an agreed set of documents, including the pleadings and depositions, and agreed that no live testimony would be heard. After hearing arguments of counsel, the trial court granted the relief prayed for in Western's complaint. In its written findings, the court found that Nuzum had intended specifically to enter Hecker anally and that he had had the mental capacity to form the requisite intent. The court concluded that Nuzum intentionally assaulted Hecker, that Hecker's injuries were neither unexpected nor unforeseen, and that the unambiguous exclusion in the insurance policy precludes liability coverage for Hecker's claim. The court therefore further concluded that Western had neither a duty to defend Nuzum nor a duty to pay any recovery by Hecker.

Nuzum argues first that the use of a declaratory judgment proceeding to avoid the duty to defend is improper where the duty to defend is clear from the face of the complaint. Nuzum further argues that the trial court erred in resolving the ultimate factual issues of the underlying case at the declaratory judgment stage. However, because of the manner in which these matters were submitted to the trial court for resolution, we find it unnecessary to confront these issues directly.

Ordinarily, an insurer's duty to defend its insured arises where any facts alleged in the complaint, if proved true, would render the insurer liable under the policy. State Farm Gen. Ins. Co. v. Emerson, 102 Wash.2d 477, 486, 687 P.2d 1139 (1984); Safeco Ins. Co. of Am. v. McGrath, 42 Wash.App. 58, 61, 708 P.2d 657 (1985). Thus, an insurer has no duty to defend its insured for acts specifically excluded from policy coverage. An insurer must defend, however, if the claim is potentially within the coverage of the policy. R.A. Hanson Co. v. Aetna Ins. Co., 26 Wash.App. 290, 294, 612 P.2d 456 (1980). The determination of the insurer's duty to defend may be made in a declaratory judgment proceeding. Safeco Ins. Co. v. Dairyland Mut. Ins. Co., 74 Wash.2d 669, 671, 446 P.2d 568 (1968); Government Employees Ins. Co. v. Woods, 59 Wash.2d 173, 186, 367 P.2d 21 (1961).

An insurer's duty to pay, in contrast to the duty to defend, depends upon the actual determination of the factual issues relating to coverage. Yakima Cement Products Co. v. Great Am. Ins. Co., 14 Wash.App. 557, 563, 544 P.2d 763 (1975), review denied, 86 Wash.2d 1011 (1976). Normally, an insurer's duty to pay arises only when the injured party ultimately, in the underlying tort action against the insured, prevails on facts that fall within the policy coverage. Safeco Ins. Co. of Am. v. McGrath, 42 Wash.App. at 61, 708 P.2d 657. In this case, however, the trial court found in the declaratory judgment proceeding that, based upon a determination of the factual issues relating to coverage, Western had no duty to pay. Although the court did not directly confront the duty to defend issue, its conclusion that there was no duty to pay necessitated the conclusion that there was no duty to defend.

Under the circumstances, we cannot find fault in the trial court's act of determining, at the declaratory judgment stage, the ultimate factual issues relating to the underlying tort action. In its complaint, Western asked the court to determine coverage, its duty to defend, and its duty to pay. In his answer, Nuzum did not object to the scope of Western's request but rather himself requested the court to make the factual determination that his act had not been intentional. Moreover, during oral argument, Nuzum argued that he did not act intentionally and suggested to the court that it give more weight to his version of the facts. Accordingly, we will not now hear Nuzum's complaint that the court resolved the factual dispute when he specifically requested the court to do so. When a party submits an issue and argues it before the court below, that party cannot complain on appeal that the trial court erred in considering and resolving that issue. Davis v. Globe Machine Mfg. Co., Inc., 102 Wash.2d 68, 77, 684 P.2d 692 (1984); Priestley Mining & Milling Co. v. Lenox Mining & Dev. Co., 41 Wash.2d 101, 105, 247 P.2d 688 (1952). Thus, in this case, the duty to defend, rather than being a separate issue whose resolution depends upon a determination of the potential for coverage under the policy, R.A. Hanson Co. v. Aetna Ins. Co., supra, depends upon the determination of the duty to pay, i.e., whether there is in fact coverage under the policy. ¹

The first issue concerning policy coverage is whether, under the personal liability section, Hecker's injuries were "caused by an occurrence to which this coverage applies," and whether, under the medical payments section, Hecker's injuries resulted "from ... an accident ... to which this coverage applies." (Italics in original.) The policy defines "occurrence" as an "accident ...." The policy does not define "accident." Therefore, the term must be given its popular and ordinary meaning. Harrison Plumbing & Heating, Inc. v. New Hampshire Ins. Group, 37 Wash.App. 621, 624, 681 P.2d 875 (1984). An "accident" generally means an unusual, unexpected and unforeseen event. Harrison Plumbing & Heating, Inc. v. New Hampshire Ins., supra. An accident is never present when the insured performs a deliberate act unless some additional, unexpected, independent and unforeseen happening occurs which produces the damage. Harrison Plumbing & Heating, Inc. v. New Hampshire Ins., supra; Unigard Mut. Ins. Co. v. Spokane School Dist. 81, 20 Wash.App. 261, 579 P.2d 1015 (1978).

We find...