El Dorado Refining Co. v. United States Fidelity & Guaranty Co., Baltimore, Md.

• Court: Kansas Supreme Court
• Writing for the Court: HOCH, Justice.
• Citation: El Dorado Refining Co. v. United States Fidelity & Guaranty Co., Baltimore, Md., 139 P.2d 369, 157 Kan. 198 (Kan. 1943)
• Decision Date: 10 July 1943
• Docket Number: 35617.
• Parties: EL DORADO REFINING CO. v. UNITED STATES FIDELITY & GUARANTY CO., BALTIMORE, MD.

139 P.2d 369

157 Kan. 198

EL DORADO REFINING CO. v. UNITED STATES FIDELITY & GUARANTY CO., BALTIMORE, MD.

No. 35617.

Supreme Court of Kansas

July 10, 1943

Syllabus by the Court.

An "occupational disease" is not an "accidental injury" within meaning of standard workmen's compensation and employer's liability policy insuring against accidental injuries to employees of insured. Gen.St.1935, 44-501.

An "accident" is simply an undesigned, sudden and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.

Action by heirs of deceased employee against employer for damages based on alleged failure of employer to furnish employee with reasonably safe place in which to work and to provide reasonable and proper devices for preventing injury from poisonous substances encountered in course of work resulting in employee's death did not allege an "accident" within meaning of policy covering accidental injuries to employees so as to require insurer to defend action.

Insurer is not bound to defend insured in actions brought wholly outside any obligation assumed in policy, and wherein insurer would have no liability in case plaintiff secured judgment against insured.

1. An occupational disease does not ordinarily fall within the classification of "accidental injuries".

2. An insurance carrier which assumes liability on behalf of an employer for certain injuries that may be suffered by employees in the course of their employment, and which undertakes to defend on behalf of the employer in actions for damages arising out of such injuries is not obligated, in the absence of specific provisions to the contrary in the policy to defend in actions wherein it would have no liability in case the plaintiff secured judgment against the employer.

3. Record examined in an action in which an employer sought to recover from its insurance carrier expenses incurred in defending an action for damages arising out of the death of an employee, and held that upon the facts alleged and as set out in the opinion herein the policy imposed no obligation upon the insurer to defend in the action for damages against the employer.

Appeal from District Court, Sedgwick County; R. L. NeSmith, Judge.

Action by the El Dorado Refining Company against United States Fidelity and Guaranty Company of Baltimore, Md., to recover from defendant cost of defending an action by heirs of deceased employee who died as result of occupational disease under defendant's policy insuring against accidental injury to plaintiff's employees. From a judgment for defendant following an order sustaining defendant's demurrer to plaintiff's evidence, plaintiff appeals.

Chas G. Yankey, Harvey C. Osborne, John G. Sears, Jr., and Verne H. Laing, all of Wichita, for appellant.

Arnold C. Todd and Kurt Riesen, both of Wichita, for appellee.

HOCH Justice.

In this action an employer sought reimbursement from an insurance company for expenses incurred in defending a suit for damages arising out of the death of one of its employees. The trial court sustained a demurrer to plaintiff's evidence and entered judgment for defendant. Plaintiff appeals. The principal question is whether actions for damages such as the one involved are covered by the policy.

Plaintiff the El Dorado Refining Company, operated a gas and oil refinery at El Dorado, Kansas. On October 16, 1933, the defendant, the United States Fidelity and Guaranty Company of Baltimore, Maryland, issued a policy under which it assumed liability for damages and agreed to defend in actions against the plaintiff for certain injuries that might be suffered by employees. The term of the policy was from October 16, 1933 to October 16, 1934.

In the instant petition, filed in Sedgwick county on June 13, 1938, plaintiff alleged that for several years prior to October 16, 1934, it had in its employ one Louis A. Draut, whose work consisted of cleaning, painting, and making repairs upon tank cars and other cars used in plaintiff's business; that on December 27, 1934 (something more than two months after the term of the insurance policy expired) said Draut was taken to the hospital, where he died on January 15, 1935; that after his death his widow, Ada M. Draut, and her daughters, as surviving heirs at law, brought an action against it for damages in the district court of Butler county alleging that Louis Draut "had been injured by reason of poisonous gases and substances in and about said refinery, and that said poisonous gases and other substances weakened and poisoned said Louis A. Draut, and that the injury was caused by said poisonous and injurious gases accumulating throughout the years from 1928 up to and including December 27, 1934, and that by reason of the accumulation of said poisonous and injurious substances in said Louis A. Draut's body he became ill and died by reason thereof on January 15, 1935."

Plaintiff further averred that the Draut heirs alleged in their action for damages that Louis Draut's "principal injury was caused during the year 1933 to 1934 *** and prior to October 16, 1934"; that although "attempt was made in said petition above referred to to state a cause of action in common law negligence against this plaintiff that said cause of action thereon attempted to be stated was based upon facts and proof that said Louis A. Draut's death was caused by accidental means and therefore an injury within the terms of said policy of insurance between the defendant company and this plaintiff"; that upon being served with summons in the action for damages it notified the insurance company, appellee here, of the action and made a demand that it defend in the litigation; that the insurance company refused to do so; that it was compelled at its own expense to employ counsel, to prepare and file pleadings, etc., and that on September 23, 1937, it obtained a dismissal of the action. Judgment was asked for $750 for attorneys' fees and for $111.33 for other expenses incurred in preparation for trial--total, $861.35.

In its answer the insurance company admitted that the action for damages had been brought against the plaintiff and that it had refused, upon demand, to defend the litigation or to bear any of the expense of doing so. It further alleged that its policy covered accidental injuries only and not "other so-called injuries or occupational diseases"; that the action for damages brought by...