Group Ins. Co. of Michigan v. Morelli

• Decision Date: 26 January 1982
• Docket Number: Docket No. 48065
• Citation: 111 Mich.App. 510,314 N.W.2d 672
• Parties: GROUP INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellant, v. Daniel MORELLI and James B. Nesbitt, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 672

314 N.W.2d 672

111 Mich.App. 510

GROUP INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellant, v. Daniel MORELLI and James B. Nesbitt, Defendants-Appellees.

Docket No. 48065.

Court of Appeals of Michigan.

Submitted June 18, 1981.

Decided Nov. 30, 1981.

Rehearing Denied Jan. 22, 1982.

Released for Publication Jan. 26, 1982.

Dickinson, Pike, Mourad, Brandt & Hanlon and Gromek, Bendure & Thomas, Detroit (Edwin F. Dyer, II and James G. Gross, Detroit, of counsel), for plaintiff.

Law Offices of Dennis G. Vatsis, P. C., Detroit, for defendant Nesbitt.

Before V. J. BRENNAN, P. J., and J. H. GILLIS and BORRADAILE, ^* JJ.

V. J. BRENNAN, Presiding Judge.

The instant appeal is from the dismissal of a declaratory judgment action filed by plaintiff, Group Insurance Company of Michigan, to determine a question of insurance coverage for an assault committed by its insured, defendant Daniel Morelli, against defendant James B. Nesbitt on the ground that the issues involved in the instant case could be resolved in the underlying tort action between Nesbitt and Morelli.

The facts surrounding the controversy are not materially in dispute.

On or about February 23, 1976, Nesbitt was in the home of Gerald and Margaret Wilson visiting their daughter, Ellen Wilson. Nesbitt was presently dating Ellen and Morelli had previously dated her. While Nesbitt was there, Morelli entered the Wilson home, walked over to where Nesbitt was seated and kicked him. The kick hit Nesbitt in the face and broke his nose.

In 1977, Nesbitt filed a civil complaint against the Wilsons for injuries caused by their failure to maintain a reasonably safe environment for him while he was an invitee in their home. Nesbitt subsequently filed an amended complaint, adding Morelli as a defendant. The amended complaint charged Morelli with a simple count of assault and battery.

Morelli, in turn, tendered to plaintiff insurance company the defense of the tort action under a homeowner's policy issued to his parents.

Thereafter, plaintiff insurance company filed the instant complaint for declaratory judgment seeking a "before trial" determination of its duty to defend and indemnify defendant Morelli in the aforementioned civil action for assault and battery between Nesbitt and Morelli. Plaintiff posited its request to determine liability upon the following exclusion provision of the policy:

"EXCLUSIONS

"This policy does not apply:

"1. UNDER COVERAGE E-PERSONAL LIABILITY AND COVERAGE F-MEDICAL PAYMENTS TO OTHERS:

"(f) to bodily injury or property damage which is expected or intended from the standpoint of the insured."

Plaintiff, by requesting the declaratory relief, sought an early resolution of the key issue of whether the bodily injury sustained by Nesbitt was "expected or intended" by Morelli when he kicked Nesbitt in the nose, and, thus, sought an early determination of whether its liability to the insured was excluded by the pertinent exclusion provision of the policy.

Defendant Morelli countered by filing a motion for summary judgment. In the motion, defendant Morelli averred that plaintiff had an absolute duty to defend and that the intent or expectation to injure could only be decided by the trier of fact in the principal tort case.

At the subsequent hearing, the trial court chose to treat defendant Morelli's motion for summary judgment as a motion for accelerated judgment. Accordingly, on the rationale that another action was pending between the same parties involving the same issues, the trial court dismissed plaintiff's declaratory suit. The trial court reasoned that all the issues pertaining to defendant's intent, and hence, the contingent issues of the insurance company's duty to defend and indemnify, could and should be resolved in the principal tort action.

Plaintiff thereafter filed the instant appeal. During the pendency of this appeal, the underlying tort action was litigated to a judgment and defendant Morelli was found liable for an assault and battery. Plaintiff provided the defense for defendant in the tort action.

On appeal, the issue submitted to this Court for our determination is whether the trial court abused its discretion by granting an accelerated judgment dismissing a declaratory judgment action brought by a liability insurer seeking an advanced determination of whether it was obligated to defend and to indemnify its insured for any personal injuries inflicted on a third party when the basis for the trial court's decision was that the issues of the insured's intent could be determined in the principal tort action for assault and battery pending between the insured and the third party. Stated alternatively, the question is whether an insurer can seek an early resolution of liability coverage for an intentional tort committed by its insured by bringing an action for declaratory judgment prior to trial on the principal tort action or whether the insured is relegated to having these issues resolved in the principal tort action or some later post-judgment proceeding. Plaintiff contends that it is both legally proper and equitably beneficial for an insurer to challenge issues affecting policy coverage prior to and independent of the trial on the principal tort action by invoking the procedural device of a declaratory judgment action. It contends that in the case of intentional torts, to force the insurer to litigate this issue while simultaneously defending the insured is to judicially create and sanction an intolerable potential conflict of interest between itself and its insured.

We agree with plaintiff. A declaratory judgment action is especially suitable and available to adjudicate before trial conflicts arising between an insured and an insurer. As noted in the authors' comments to GCR 1963, 521, concerning the provision in the rule allowing a declaratory judgment action despite the existence of another adequate remedy, and how this...