Burns v. Middlesex Ins. Co.
| Decision Date | 25 May 1989 |
| Citation | 558 A.2d 701 |
| Parties | Phyllis BURNS v. MIDDLESEX INSURANCE COMPANY. |
| Court | Maine Supreme Court |
Paul F. Macri, Jeffrey Rosenblatt (orally), Berman, Simmons & Goldberg, Lewiston, for plaintiff.
Martica S. Douglas, Sheila McLaughlin (orally), Hewes, Douglas, Whiting & Quinn, Portland, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.
Does an insurance carrier have an obligation to defend under a homeowner's insurance policy when the insured is sued for bodily injury resulting from slander, invasion of privacy and intentional infliction of emotional distress? The policy excludes from coverage "bodily injury ... which is expected or intended by the insured." Since under the complaint in the underlying action the injured party could recover amounts that would not be excluded by this provision, we conclude that there is a duty to defend. We therefore vacate the summary judgment entered by the Superior Court (Androscoggin County, Fritzsche, J.) in favor of the carrier and direct the entry of partial summary judgment in favor of the insured.
The scope of the duty to defend is determined by J.A.J., Inc. v. Aetna Casualty and Sur. Co., 529 A.2d 806, 808 (Me.1987) (emphasis original), citing American Policyholders' Ins. Co. v. Kyes, 483 A.2d 337, 339 (Me.1984). The scope of the duty does not depend merely on the draftsmanship of the complaint "but on a potential shown in the complaint that the facts ultimately proved may come within the coverage." Travelers Indem. Co. v. Dingwell, 414 A.2d 220, 226 (Me.1980) (emphasis original).
Here, the insurance policy excludes from coverage "bodily injury ... which is expected or intended by the insured." In Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888, 892 (Me.1981), we found this exclusion ambiguous and interpreted it to refer "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" (emphasis original). The underlying complaint that has provoked this controversy claims...
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...only exclude coverage if the insured acted with specific intent to injure, unless the policy states otherwise."); Burns v. Middlesex Ins. Co., 558 A.2d 701, 702 (Me. 1989) (exclusion from coverage of "bodily injury ... which is expected or intended by the insured" did not negate insurer's d......
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