Gordon-Gallup Realtors, Inc. v. Cincinnati Ins. Co., GORDON-GALLUP
| Decision Date | 08 April 1980 |
| Docket Number | No. 21188,GORDON-GALLUP,21188 |
| Court | South Carolina Supreme Court |
| Parties | REALTORS, INC., Respondent, v. The CINCINNATI INSURANCE COMPANY, Appellant. |
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v.
The CINCINNATI INSURANCE COMPANY, Appellant.
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[274 S.C. 469] Edward E. Poliakoff, of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.
John T. Moore, of Robinson, McFadden, Moore & Pope, Columbia, for respondent.
NESS, Justice:
Respondent Gordon-Gallup Realtors, Inc., brought this declaratory judgment action after its errors and omissions insurer, appellant Cincinnati Insurance Company, denied coverage and refused to defend a suit brought by R. L. and Linda E. Woolam. Appellant appeals from an order declaring it had a duty to defend and finding respondent entitled to reasonable attorney's fees for the prosecution of this action. We affirm.
A real estate agent's errors and omissions policy purchased from appellant insured respondent against damages "caused by any negligent act, error or omission of the insured[274 S.C. 470] or any other person for whose acts the insured is legally liable in the conduct of their business as real estate agents," but specifically excluded coverage for "any dishonest, fraudulent, criminal or malicious act, libel or slander." Under the policy,
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appellant was obligated to defend respondent against any suit resulting from acts or omissions within its coverage.In April, 1977, the Woolams brought suit against respondent alleging one of its agents had misrepresented certain facts during the sale of a house. Respondent forwarded the complaint, but appellant denied coverage and refused to defend the suit. Respondent then commenced this declaratory judgment action. The case was referred to a master who held for respondent. The trial court concurred in the master's findings and ordered appellant to pay respondent reasonable attorney's fees for the action.
Appellant first asserts the trial court erred in concluding it had a duty to defend the Woolams' suit. We disagree.
An insurer's duty to defend is determined by the factual allegations of the complaint. Boggs v. Aetna Cas. & Sur. Co., 272 S.C. 460, 252 S.E.2d 565 (1979); Annot., 50 A.L.R.2d 458, 465 (1956). The insurer is under a duty to defend if the complaint alleges a state of facts within the policy's coverage. Allstate Ins. Co. v. Wilson, 259 S.C. 586, 193 S.E.2d 527 (1972); Hartford Acc. & Indem. Co. v. S. C. Ins. Co., 252 S.C. 428, 166 S.E.2d 762 (1969).
While the complaint is couched in terms...
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