Alm v. Hartford Fire Ins. Co.

• Decision Date: 13 February 1962
• Docket Number: No. 3033,3033
• Citation: 369 P.2d 216
• Parties: Ford D. ALM, Appellant (Plaintiff below), v. HARTFORD FIRE INSURANCE COMPANY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 216

369 P.2d 216

Ford D. ALM, Appellant (Plaintiff below), v. HARTFORD FIRE INSURANCE COMPANY, Appellee (Defendant below).

No. 3033.

Supreme Court of Wyoming.

Feb. 13, 1962.

Elmer J. Scott of Scott & Joffe and J. T. Langdon, Worland, for appellant.

Ross D. Copenhaver, Powell, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiff below was insured by defendant's 'Homeowners Policy,' which contained under its Section II certain of the company's covenants as follows:

'1. Coverage F--Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of use thereof.

* * *

* * *

'2. Defense, Settlement, Supplementary Payments: With respect to such insurance as is afforded by this policy for Coverage F, this Company shall:

(a) defend any suit against the Insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but this Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;'

The policy also contained the following exclusion clause:

'Section II of this Policy Does Not Apply * * * to injury, sickness, disease, death or destruction caused intentionally by or at the direction of the Insured;'

The insured was sued in an action which alleged in a first cause of action that the insured negligently injured the complaining party, and in a second cause of action which alleged the insured had committed violent assault upon the complainant, inflicting injury upon her. Plaintiff herein notified the insuring company of the suit and requested that it assume insured's defense. Defendant company refused, claiming the action against the insured was within the above-quoted exclusion clause of its policy. In consequence, plaintiff was compelled to conduct his defense at his own expense. The jury returned a verdict in the insured's favor, thus completely exonerating him from the charge of negligent injury, as well as of the intentional injury of the person who brought the action. Plaintiff then brought this action against the insurance company to recover expenses incurred in defending the lawsuit against him. The company's answer admitted it issued plaintiff its policy of insurance containing the above-quoted provisions; that plaintiff notified the company of the suit brought against him; that it refused to defend plaintiff, and alleged the suit against the insured was of a nature specifically excluded by the terms of the policy issued to plaintiff. Thereupon plaintiff moved for summary judgment. The company also filed its cross-motion for summary judgment, supporting the same by affidavit of its counsel, stating he had investigated the matter of the alleged assault and battery charged in the second count of the action against plaintiff and obtained a statement from plaintiff concerning the same which was attached to counsel's affidavit. This statement related that plaintiff went to the home of the person filing the suit and took insured's wife from there, then returned to get his wife's purse, and that he knocked the 'phone' from the hand of the complaining person when she started to call the police. The parties stipulated that the file in the action brought against the insured be considered by the court in passing upon the motions for summary judgment. The court entered summary judgment in favor of the defendant company on the question of its liability only, and held that judgment made moot any issue as to damages. The plaintiff appeals, insisting that although the assault and battery count was not covered by the policy, the negligence count required the company to defend the action.

The correctness of the lower court's judgment cannot be measured solely upon the assault and battery charge, but must be viewed in the light of both causes of action upon which the insured was sued.

We agree with appellee that where terms of an insurance policy are clear and unambiguous, they will be enforced the same as are the terms of other contracts, Addison v. Aetna Life Insurance Company, Wyo., 358 P.2d 948, 950; that parties have the right to embody in their insurance contract whatever lawful terms they wish and courts will not rewrite them, Rosenblum v. Sun Life Assur. Co. of Canada, 51 Wyo. 195, 214, 65 P.2d 399, 405, 109 A.L.R. 911, 919. We also agree the policy in this case does not require the company to defend an action if an injury is intentionally caused by or at the direction of the insured.

On the other hand, the appellant is correct in saying that in case of ambiguity or doubt respecting the terms of the policy the contract should be construed against the company and in favor of the insured. Wilson v. Hawkeye Casualty Co., 67 Wyo. 141, 215 P.2d 867; Royal Ins. Co. v. O. L. Walker Lumber Co., 24 Wyo. 59, 155 P. 1101.

It is clear that under Section II, clause '1. Coverage F--Liability' of the policy the company gave covenant that it would 'pay on behalf of the Insured all sums which the Insured' became 'legally obligated to pay as damages because of bodily injury * * * sustained by any person.' It is just as clear that by clause 2, under the same Section II, the company undertook to 'defend any suit against the Insured alleging such injury * * * even if such suit is groundless, false or fraudulent.' Thus far it becomes unnecessary to resort to either of the rules of law above referred to for help in understanding or interpreting the engagement of the company. At this point, the company's obligation to indemnify the insured if subjected to liability, and to provide defense for insured if sued for damages because of bodily injury sustained by any person whether the suit is groundless, false or fraudulent, is unequivocal. But under the caption 'Exclusions' it is as plainly stated that the provisions of Section II do not apply 'to injury * * * caused intentionally by or at the direction of the Insured.' The appellee contends that by virtue of this exclusion the company was justified in refusing to defend the action brought against the insured, because in one count it was alleged the insured 'committed violent assault,' resulting in injury to a person, thereby charging the insured with intentionally inflicting the injury and therefore absolving the company of any duty to defend.

The appellant has admitted that the assault and battery count is outside the coverage of the policy, so we will not discuss that aspect of the case, although we should not be understood as deciding that matter.

The appellee attempts to destroy the effect of the first count of the injury action by saying in its brief that the action under the second count for assault and battery pleaded in the second count could not be changed by amendment into an action for negligence, and cites Wilson v. Maryland Cas. Co., 377 Pa. 588, 105 A.2d 304, 50 A.L.R.2d 449, in support of that statement. It is true that the Wilson opinion states at 105 A.2d 307:

'* * * In the present case the cause of action against the insured, being for wilful assault and battery...