Boggs v. Aetna Cas. and Sur. Co., 20893

• Citation: 252 S.E.2d 565,272 S.C. 460
• Decision Date: 22 February 1979
• Docket Number: No. 20893,20893
• Parties: Thomas L. BOGGS, d/b/a Boggs Home Builders, Respondent, v. The AETNA CASUALTY AND SURETY COMPANY, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 565

252 S.E.2d 565 272 S.C. 460 Thomas L. BOGGS, d/b/a Boggs Home Builders, Respondent,
v.
The AETNA CASUALTY AND SURETY COMPANY, Appellant. No. 20893. Supreme Court of South Carolina. Feb. 22, 1979.

Page 566

[272 S.C. 461] Cary C. Doyle and C. Thomas Cofield, III, of Doyle & Cofield, Anderson, for appellant.

James W. Logan, Jr., of Watkins, Vandiver, Kirven, Gable & Gray, Anderson, for respondent.

NESS, Justice:

This appeal is from an order granting summary judgment in favor of respondent Boggs. We affirm.

This litigation arose from Boggs' construction of a house for Mr. & Mrs. Tilley in Anderson. Construction was completed in early October of 1972. Just prior to completion, some difficulty with drainage of the lot and/or septic tank developed. The Tilleys and Boggs entered into a written agreement whereby Boggs agreed to correct the drainage problems. Following several unsuccessful attempts by Boggs to remedy the problems, the Tilleys filed suit against him for $40,000 in damages.

Page 567

Upon receipt of the Tilley complaint, Boggs notified the appellant, Aetna, his insurer. Aetna denied coverage and refused[272 S.C. 462] to defend the suit. Following receipt of an amended complaint from the Tilleys, Boggs renewed his demand of Aetna to defend the action. Aetna again denied coverage and refused to defend.

Boggs settled the Tilley claim for $5,580, and paid his attorneys $4,520.25 in fees. The instant action, brought by respondent Boggs, sought (1) reimbursement of the settlement amount; (2) reimbursement of attorneys' fees; and (3) statutory attorneys' fees for the prosecution of this case.

The trial court granted Boggs summary judgment in the amount of $10,100.25 and awarded him statutory attorneys' fees of $1,860.00, concluding that Aetna had acted without reasonable cause in denying coverage and in failing to defend the Tilley suit. We agree.

Respondent Boggs was insured by appellant Aetna under a comprehensive liability policy, a portion of which provided:

"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, Caused by an occurrence . . . " (Emphasis supplied).

Thus one of the pivotal questions is whether the seepage of water into the Tilley house, allegedly caused by Boggs' negligent decision to place the house on that particular portion of the lot, was an "occurrence" within the meaning of the policy. In the definitions section of the policy, an "occurrence" is stated to be "an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured." (Tr. p. 78).

Appellant Aetna initially asserts that neither Tilley complaint alleged acts and damage covered by the policy. It is well settled that the obligation of an insurer to defend is to be determined by the allegations of the complaint. Stroup Sheet Metal Works, Inc. v. Aetna Casualty[272 S.C. 463] & Surety Co., 268 S.C. 203, 232 S.E.2d 885 (1977); Allstate Ins. Co. v. Wilson et al., 259 S.C. 586, 193 S.E.2d 527 (1972); 50 A.L.R.2d 465.

Aetna seeks to construe the word "occurrence" as...