Drake Ins. Co. of New York v. Carroll County Sheriff's Dept.

Decision Date18 November 1981
Docket NumberNo. 2-1180A393,2-1180A393
Citation427 N.E.2d 1153
PartiesDRAKE INSURANCE COMPANY OF NEW YORK, Appellant (Plaintiff Below), v. CARROLL COUNTY SHERIFF'S DEPARTMENT: Carroll County: Board of Commissioners of Carroll County: Dale McCurdy, individually and as agent of Carroll County; and Nancy Walters, individually and as agent of Carroll County, Appellees(Defendants Below).
CourtIndiana Appellate Court

Jerome L. Withered, Dickson, Reiling & Teder, Lafayette, for appellant.

Barry T. Emerson, Ives, Ives & Emerson, Delphi, for appellees.

SULLIVAN, Judge.

This is a declaratory judgment action initiated by Drake Insurance Company of New York (Drake) to determine its obligation under a professional liability policy issued to the Carroll County Sheriff's Department (Insured). The policy provides in part:

"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

Coverage A Personal Injury

Coverage B Bodily Injury

to which this policy applies, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury or bodily injury, ....

This policy does not apply:

(f) to bodily injury to any person occurring while such person is in the custody of the insured or any municipal, state or federal authority."

On January 17, 1978, George Maxwell was taken into custody by agents of the insured. The following day, while still in custody, Maxwell allegedly committed suicide. Shortly thereafter Sandy Maxwell, George Maxwell's widow and administratrix of his estate, filed a wrongful death action alleging negligence in the incarceration and care of her deceased husband.

In this action Drake contended that Mrs. Maxwell's claim fell within the terms of exclusion "(f)" quoted above. After examining documentary evidence and hearing Mrs. Maxwell's testimony the trial court concluded that:

"(T)he claim made in (Mrs. Maxwell's) lawsuit ... is not within the terms of such exclusion but is in essence a claim for damages by the widow and children for loss of services of the decedent, George C. Maxwell, resulting from the defendants' alleged negligent acts in causing death of the decedent, and that the subject matter of such suit is the assertion of the violation of a property right, falling within the terms of "Coverage A Personal Injury" of the insurance policy, and that the plaintiff is thereby obligated under the terms of such policy to defend the lawsuit and pay any judgment for damages that might arise therefrom."

The issues are whether the trial court erred in holding that Mrs. Maxwell's action fell within the scope of "Coverage A Personal Injury" rather than the scope of exclusion "(f)" and whether if liable under the policy Drake is obligated to pay all damages which might be recovered. We affirm in part and reverse in part.

An insurer's duty to defend claims against the insured is contractual, i.e., as specified in the contract of insurance. American States Insurance Co. v. Aetna Life & Casualty Co. (3d Dist. 1978) Ind.App., 379 N.E.2d 510, 517; All-Star Insurance Corp. v. Steel Bar, Inc. (N.D.Ind.1971), 324 F.Supp. 160, 163. While an ambiguous insurance contract is construed in the insured's favor, an unambiguous policy must be enforced according to its terms. Cincinnati Insurance Co. v. Mallon (2d Dist. 1980) Ind.App., 409 N.E.2d 1100, 1103; American States Insurance Co. v. Aetna Life & Casualty Co., supra, 379 N.E.2d at 516.

Here, the terms of the insurance policy are clear and unambiguous. Exclusion "(f)" pertains to "bodily injury to any person occurring while such person is in the custody of the insured ...." Bodily injury is defined as "sickness or disease sustained by any person accidently (sic), caused by any act of the insured in making or attempting to make an arrest while acting within the scope of his duties ...."

Maxwell's death did not occur while he was being arrested. He died one day after the arrest and while incarcerated. It is clear, therefore, that the "bodily injury" exclusion was not applicable.

Under the terms of the policy, personal injury means:

"false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights and, if committed while making or attempting arrest or while resisting an overt attempt to escape by a person under arrest before such person has been or could have been brought before a magistrate or a like official authorized to hold a preliminary hearing, assault and battery, provided that no act shall be deemed to be or result in personal injury unless committed in the regular course of duty by the insured." (emphasis supplied).

The trial court ruled that Mrs. Maxwell's claim for relief asserted a violation of property rights. We must agree with this determination. Indiana's Wrongful Death Act, I.C. 34-1-1-2 (Burns Code Ed. 1973), 1 provides a right to sue for those suffering a pecuniary loss as a result of the decedent's death by another's wrongful act or omission. The right to sue emanates from the tortious act causing death, rather than from the person of the deceased. In re Estate of Pickens (1970) 255 Ind. 119, 263 N.E.2d 151, 156. Mrs. Maxwell's claim...

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