Felice v. St. Paul Fire and Marine Ins. Co.
| Citation | 711 P.2d 1066,42 Wn.App. 352 |
| Decision Date | 19 December 1985 |
| Docket Number | No. 6821-8-III,6821-8-III |
| Parties | Victor J. FELICE, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Respondent. |
| Court | Court of Appeals of Washington |
Victor J. Felice, Spokane, for appellant.
Gary R. Eliasen and Tyna L. Ek, Merrick, Hofsted & Lindsey, Seattle, for respondent.
This case involves a dispute between an attorney, Victor Felice, and his malpractice insurance carrier, St. Paul Fire and Marine Insurance Co. (St. Paul) The issues concern the scope of coverage and the duty an insurance company has to appeal an unfavorable trial court decision. Mr. Felice claims the trial court erred in granting St. Paul summary judgment. We affirm.
In August 1981, Charles Kreck, 1 a long-time friend of Verna Cambern, an 86-year-old widow, advised Mr. Felice that Mrs. Cambern's life was in danger, her assets were being squandered by family members, and he was of the opinion the family intended to kill Mrs. Cambern.
Over Mr. Felice's objections, on August 27, 1981, Mr. Kreck took Mrs. Cambern to Portland, Oregon and refused to return her to Spokane. Three months later, on December 11, 1981, relatives discovered her in Portland. Connie Beck, a grandniece of Mrs. Cambern, went to Mr. Kreck's Oregon residence with a police sergeant. Mr. Kreck was not present. The house was dirty, with animal excrement and rotting food throughout the living quarters. Additionally, Mrs. Cambern was incoherent, dirty and bruised up and down her arms. Ms. Beck brought Mrs. Cambern to Spokane, where she was placed in a nursing home.
Meanwhile, in September 1981, Mr. Felice petitioned for his appointment as guardian of Mrs. Cambern's person and estate, utilizing an August 1981 psychiatrist's report in which she was described as incompetent. The petition was served upon Mrs. Cambern, but did not list family members, nor was it served upon any of them. On September 9, 1981, the court appointed Mr. Felice guardian of Mrs. Cambern.
On November 20, 1981, Dorothy Ryder, Mrs. Cambern's niece, moved for appointment of a guardian ad litem and for an order vacating Mr. Felice's appointment as guardian pending the guardian ad litem's report. In December 1981, a guardian ad litem was appointed. The court order also provided that Mr. Felice remain as guardian, but that he "consult" the guardian ad litem on all guardianship actions until further order of the court. Mr. Felice testified he ignored this directive.
On February 2, 1982, the guardian ad litem filed his report, recommending the appointment of grandniece Bonnie Peters as Mrs. Cambern's personal guardian, and brother Charles Beck as guardian of the estate. At that time, Bonnie Peters offered to pay Mr. Felice $1,500 in attorney fees if he would voluntarily withdraw as guardian. Mr. Felice, however, refused, unless his $2,500 fee was paid in full. In April 1982, without consulting the guardian ad litem, Mr. Felice presented an order which was signed by the court, ex parte, approving various disbursements, including $2,500 in temporary attorney fees.
On May 6, Ms. Peters filed an amended petition for involuntary removal of Mr. Felice as guardian, and for the return to the Cambern estate of the $2,500 attorney fees. The court ordered Mr. Felice to appear May 14, and at that time Mr. Felice advised the court he had no counsel. The court nevertheless set trial for May 20, but advised Mr. Felice that a continuance would be considered if necessary. Mr. Felice did not inform St. Paul of the pending guardianship removal action. Rather, he asked his associate to represent him. After the court relieved the associate for a potential conflict of interest, Mr. Felice decided not to contact St. Paul but instead "chose" to represent himself at trial commencing May 20. After a fragmented trial held in June and July, the court removed Mr. Felice as Mrs. Cambern's guardian, and ordered the $2,500 in attorney fees awarded in April returned to the Cambern estate.
Mr. Felice did not inform St. Paul of the guardianship removal action until December 1982, approximately 7 months after trial began. St. Paul rejected his tender of defense and Mr. Felice appealed the involuntary guardianship removal decision pro se. This court affirmed the trial court judgment. In re Cambern, No. 5534-5-III (unpublished opinion filed June 26, 1984).
Mr. Felice then commenced this action against St. Paul, seeking $18,183 in attorney fees for an alleged breach of the company's duty to defend. These fees were sought as compensation for the time and effort Mr. Felice expended as an attorney in the defense and appeal of the guardianship removal action. The trial court dismissed St. Paul by summary judgment because: (1) the guardianship removal action was not covered by the St. Paul professional liability policy because the action was one to remove Felice as guardian, not to seek compensation for any loss resulting from Mr. Felice's legal services; and (2) Mr. Felice's prejudicial breach of the cooperation clause in the liability insurance policy discharged any duty St. Paul may have had to defend.
First, Mr. Felice contends the guardianship removal action was covered by the policy. Insurance policies are to be construed in accordance with the general rules applicable to other contracts, the interpretation being a question of law. State Farm Gen. Ins. Co. v. Emerson, 102 Wash.2d 477, 480, 687 P.2d 1139 (1984); Kelly v. Aetna Cas. & Surety Co., 100 Wash.2d 401, 407, 670 P.2d 267 (1983); Ryan v. Harrison, 40 Wash.App. 395, 396-97, 699 P.2d 230 (1985). Unless an ambiguity in the contract exists and contradictory evidence is introduced to clarify the ambiguity, summary judgment is proper even though the parties disagree as to the legal effect of the provision in question. Ryan, at 397, 699 P.2d 230; Greer v. Northwestern Nat'l Ins. Co., 36 Wash.App. 330, 334, 674 P.2d 1257 (1984). Although ambiguities in insurance policies are to be interpreted in favor of the insured, McDonald Indus., Inc. v. Rollins Leasing Corp., 95 Wash.2d 909, 913, 631 P.2d 947 (1981); Batdorf v. Transamerica Title Ins. Co., 41 Wash.App. 254, 257, 702 P.2d 1211 (1985); Abbott v. General Accident Group, 39 Wash.App. 263, 267, 693 P.2d 130 (1984), clear and unambiguous language must be given effect according to its plain meaning and may not be construed by the courts. Progressive Cas. Ins. Co. v Jester, 102 Wash.2d 78, 79-80, 683 P.2d 180 (1984); Batdorf, 41 Wash.App., at 258, 702 P.2d 1211. When interpreting language of an insurance contract, the entire contract is to be construed together for the purpose of giving force and effect to each clause. Neer v. Fireman's Fund Am. Life Ins. Co., 103 Wash.2d 316, 320, 692 P.2d 830 (1985).
The pertinent language of the contract reads:
We'll pay amounts you ... are legally required to pay to compensate others for loss resulting from legal or notary services you provided or should have provided. This includes loss caused by any person whose acts you're legally responsible for.
Legal services include those you perform while serving in a fiduciary capacity such as: ... guardian.
Mr. Felice suggests the language is ambiguous because reasonable persons could disagree whether the language extends coverage in actions to discharge guardians. But examining the entire policy, we conclude the language in the contract is not ambiguous, either clause-by-clause or when all clauses are construed together. The policy provides coverage when Mr. Felice is "legally required to pay to compensate others for loss resulting" from his negligent rendering of services.
The general rule is that insurers who have reserved the right and duty to defend are obliged to defend any suit in which the insured is legally liable to pay third parties in connection with risks covered by the policy. See, e.g., State Farm Gen. Ins. Co. v. Emerson, supra, 102 Wash.2d, at 486, 687 P.2d 1139; Seaboard Surety Co. v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 81 Wash.2d 740, 741, 504 P.2d 1139 (1973); Batdorf, 41 Wash.App., at 258, 702 P.2d 1211. But this protection usually is not extended to mandamus or injunction types of proceedings which usually have as an objective the compelling of some action by the insured. Seaboard Surety Co., 81 Wash.2d, at 744, 504 P.2d 1139; 14 G. Couch, Insurance § 51:37 (2d ed. 1982 & Supp.1984); Annot., Liability Insurer's Duty to Defend as Including Injunction Proceedings, 53 A.L.R.2d 1132 (1957 & Supp.1984).
The action brought by Bonnie Peters was in the nature of a writ of mandamus 2 because its purpose was to discharge Mr. Felice as guardian and compel him to return funds he allegedly had wrongfully taken as compensation for his services. The petition did not contain allegations concerning actual or direct damages nor a prayer for monetary relief. Rather, it contained reasons which would seem to negate a prayer for relief in the form of damages. 3 It sought his removal as guardian and repayment of the attorney fees. Hence, we hold the policy language at issue here was not intended to cover situations where third parties seek to discharge an attorney as guardian. The Superior Court was correct in concluding that this "was not a proceeding to recover for loss occasioned by the petitioner in that case ... the action sought here was really simply that of removal of Mr. Felice as guardian."
Even if St. Paul had a duty to defend Mr. Felice in the involuntary removal action, his failure to provide St. Paul notice of the impending action also precluded coverage. The breach of a cooperation clause may be considered substantial and material, and may affect the release of an insurer from its responsibilities if the insurer was actually prejudiced by the insured's actions or conduct. Oregon Auto. Ins. Co. v. Salzberg, 85 Wash.2d 372, 377, 535 P.2d 816 (1975); Pulse v. Northwest Farm Bureau Ins. Co., ...
To continue reading
Request your trial
-
Schiff v. Liberty Mut. Fire Ins. Co.
...that "[a] denial of coverage based on a reasonable interpretation of the policy is not bad faith"); Felice v. St. Paul Fire & Marine Ins. Co., 42 Wash. App. 352, 361, 711 P.2d 1066 (1985) (where the insured asserted a bad faith denial of coverage, holding that "[d]enial of coverage due to a......
-
Boeing Co. v. Aetna Cas. and Sur. Co.
...held that a liability insurer is not required to indemnify its insured's restitutionary liability. Felice v. St. Paul Fire & Marine Ins. Co., 42 Wash.App. 352, 357, 711 P.2d 1066 (1985), review denied, 105 Wash.2d 1014 (1986). 8 Even the policyholders admit that Felice reached a proper resu......
-
Pederson's Fryer Farms, Inc. v. Transamerica Ins. Co.
...determinations to be resolved by the trier of fact. Salzberg, 85 Wash.2d at 377, 535 P.2d 816; Felice v. St. Paul Fire & Marine Ins. Co., 42 Wash.App. 352, 358, 711 P.2d 1066 (1985), review denied, 105 Wash.2d 1014 (1986); Pulse, 18 Wash.App. at 62, 566 P.2d 577. Prejudice is presumed only ......
-
Underwriters Subscribing to Lloyd's Ins. v. Magi
...(citing Villella v. Public Employees Mut. Ins. Co., 106 Wash.2d 806, 821, 725 P.2d 957 (1986)). See Felice v. St. Paul Fire & Marine Ins., 42 Wash.App. 352, 361, 711 P.2d 1066 (1985). RCW 48.01.030 requires insurers to "be actuated by good faith, abstain from deception, and practice honesty......
-
Boeing Co. v. Aetna Casualty and Surety Co.: Cercla Response Costs Covered "as Damages" Under Comprehensive General Liability Insurance Policies
...majority also distinguished a Washington Court of Appeals decision, Felice v. St. Paul Fire and Marine Ins. Co., 42 Wash. App. 352, 711 P.2d 1066 (1985), review denied, 105 Wash. 2d 1014 (1986), upon which the Ross court relied. See Boeing, 113 Wash. 2d at 895, 784 P.2d at 515 n.4. Felice, ......
-
Table of Cases
...v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988) . . 67.04[1][c], [4], [a] Felice v. St. Paul Fire and Marine Ins. Co., 42 Wn. App. 352, 711 P.2d 1066 (1985) . . . . . . . . . . . 5.03[2] Fellers; State v., 37 Wn. App. 613, 683 P.2d 209 (1984) . . . . . . . . . . . . . . . ......
-
§5.03 Risk Management
...typically preclude potential coverage issues triggered by unreasonable delay. See, e.g., Felice v. St. Paul Fire and Marine Ins. Co., 42 Wn. App. 352, 358-60, 711 P.2d 1066 (1985) (lawyer's unreasonable delay in notifying malpractice carrier violated cooperation clause in the policy involve......