Cook v. Ohio Cas. Ins. Co., 7847

• Decision Date: 29 August 1967
• Docket Number: No. 7847,7847
• Citation: 418 S.W.2d 712
• Parties: Joseph COOK et ux., Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Appellee. . Texarkana
• Court: Texas Court of Appeals

Page 712

418 S.W.2d 712

Joseph COOK et ux., Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Appellee.

No. 7847.

Court of Civil Appeals of Texas.

Texarkana.

Aug. 29, 1967.

Emmett Colvin, Jr., Henry J. Novak, Jr., Clifford S. Dillard, F. T. Gauen, Jr., Dallas, for appellants.

J. Mike Joplin, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.

CHADICK, Chief Justice.

This is a breach of contract action. On the motion of the defendant, Ohio Casualty Insurance Company, the trial court entered summary judgment that plaintiffs Joseph Cook and wife Capitola Cook and intervenors H. M. Wigley and wie, Bernice Wigley, take nothing by their suits. The judgment of the trial court is affirmed.

The brief of appellants Joseph and Capitola Cook contains a statement of the nature of the case that appellee Ohio Casualty Insurance Company agrees is substantially correct. Such statement is adopted for the purposes of this appeal and, with reference to pages of the record deleted, is next set out:

'Appellant Joseph Cook and wife, Capitola Cook, filed suit in the 116th Judicial District Court against the Appellee herein, Ohio Casualty Insurance Company, alleging as a cause of action a breach of contract by Appellee for its refusal to defend a lawsuit under the terms of an insurance policy issued by Appellee to Appellant Cook and wife, and seeking to recover the amount of the judgment rendered against them in said lawsuit, Two Thousand Nine Hundred Fifty Dollars ($2,950.00), plus interest on such amount of six per cent (6%), and attorney's fees of Five Hundred Dollars ($500.00). Appellee denied generally the allegations of Appellant's Original Petition. Thereafter, H. M. Wigley and wife, Bernice Wigley, Plaintiffs in the lawsuit against Appellant Cook and wife, and holders of the unsatisfied judgment for Two Thousand Nine Hundred Fifty Dollars ($2,950.00) plus six per cent (6%) interest, intervened and prayed for priority to the extent of their judgment against Appellant Cook and wife of any funds recovered by said Appellant in the instant lawsuit.

'The facts, which were stipulated reflect that demand was made on Appellee to defend the Wigley suit and that Appellee refused.

'Appellee filed a Motion for Summary Judgment, supported by affidavit. The affidavit, sworn to by a memer of Appellee's Claims Department, alleged that such claims agent was told by Capitola Cook that she and her husband lived with her mother and shared expenses; that at the time of the accident, she was driving her mother's 1953 Studebaker; that she had her mother's permission to drive the Studebaker; and that her husband had the 1957 Ford.

'The Motion in support of the allegation therein that no material issue of fact in controversy existed, set forth portions of Policy No. 270--86--91, issued to Appellant Cook and wife, which reflected that Appellee would not be liable to pay for damages which Mr. and Mrs. Cook became legally obligated to pay if such damages were incurred when one or the other of them were driving an automobile owned by a relative who was a resident of the same household.

'Mr. and Mrs. Cook filed no motion and/or affidavit controverting Appellee's Motion for Summary Judgment.

'The trial court sustained the motion for Summary Judgment, and entered judgment thereon.'

Regardless of the merit of the claim, an insurer has the duty to defend the insured in a suit on a claim the insurer, if the claimant prevails, is obligated by the insurance contract to pay on behalf of the insured, when, as in this case, the liability insurance policy contains a provision giving the insurer exclusive control of the defense of all such suits against the insured. See 50 A.L.R.2d Anno .: Liability Insurer--Duty to Defend, § 1. The parties recognize the foregoing as an accurate general statement of law. The appellants rely for reversal in this appeal, however, on a correlated proposition that the insurance company's duty to defend is determined by reference only to the insurance policy and the claimant's petition, that is, in this case, the petition of H. M. and Bernice Wigley as plaintiffs in the case referred to in the quotation from appellee's brief, wherein Joseph and Capitola Cook are defendants. The appellant insurance company defends on the theory that it did not refuse to defend the Wigleys' suit because such suit was based on a groundless, false, or fraudulent claim, but because the insurance contract between it and the Cooks excluded from coverage any liability Mrs. Cook incurred while driving her mother's automobile.

The fact that Mrs. Capitola Cook was driving her mother's automobile at the time of the collision with the Wigley vehicle appears by stipulation on file and in the affidavit attached to the insurance company's motion for summary judgment. The lawsuit referred to herein styled Wigley v. Cook was filed...