Heshelman v. Nationwide Mut. Fire Ins. Co., Columbus, Ohio, 1-780
| Decision Date | 18 November 1980 |
| Docket Number | No. 1-780,1-780 |
| Citation | 412 N.E.2d 301 |
| Parties | Alan D. HESHELMAN, Appellant (Plaintiff Below), v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, COLUMBUS, OHIO, Appellee (Defendant Below). A 185. |
| Court | Indiana Appellate Court |
William D. Lalley, Duvall, Tabbert, Lalley & Newton, Indianapolis, John R. Van Winkle, Free, Brand, Tosick, Van Winkle & Allen, Greenfield, for appellant.
David M. Haskett, Alan S. Brown, Locke, Reynolds, Boyd & Weisell, Indianapolis, George J. Lewis, Lineback & Lewis, Greenfield, for appellee.
This is an appeal by Alan D. Heshelman (Insured) from an adverse decision of the trial court in his action for damages against Nationwide Fire Insurance Co. (Insurer) for failure to defend the Insured in a third party lawsuit. The duty to defend was predicated on a homeowner's policy of insurance which included coverage and a duty to defend a lawsuit alleging bodily injury. The Insured's action against the Insurer began as a declaratory judgment action to determine the obligation of the duty to defend. The Insurer answered that there was no coverage or duty to defend based on an exclusion in the policy which excluded: "Bodily injury, illness or death or property damages caused intentionally by or at the direction of an insured."
The third party lawsuit was initiated by one Lester and Patricia Fox and the complaint, fairly read, sounded in assault and battery (and resultant loss of consortium). The lawsuit arose out of an altercation at a factory where both the Foxes and the Insured worked. The Foxes, as cafeteria workers, were picketing the gate to the factory, when the Insured, a production line worker and in a separate union, attempted to go through the picket line. Blows were exchanged.
Providing his own defense, the Insured counterclaimed against the Foxes and, during the pendency of the declaratory judgment action, the Insured prevailed on his counterclaim and the Foxes lost on their action. The declaratory judgment action was then amended to one for damages for the failure of the Insurer to defend the action. The Insurer raised the same answer as stated above.
The trial court, without benefit of a jury, found for the Insurer and we affirm.
It is basic that, although the duty to defend may be broader than the duty to pay, the obligation of a liability insurer to defend an action in this situation is determined by the allegations of the complaint in such action. Annot. 2 A.L.R.3d 1242 (1965). Or stated negatively, where the pleadings fail to disclose a claim within coverage elements, or where it is clearly excluded under the policy, and investigation also reveals a claim without the coverage of the policy, no defense will be required even though the suit is otherwise false, groundless or fraudulent. J. Appleman, 7C Insurance Law & Practice § 4685.01 (Rev.ed.1979).
Home Insurance Co. v. Neilsen, (1975) 165 Ind.App. 445, 332 N.E.2d 240, provides authority for the examination of the exclusion here. The case involved the question of duty to defend an assault and battery case under a policy with an almost identical exclusion clause. 1 This court addressed the issue of the definition of "Intentionally" in the clause and held:
the policy excludes coverage for an intentional act of the insured which was intended to cause injury. The latter intent may be established either by showing an actual intent to injure, or by showing the nature and character of the act to be such that intent to cause harm to the other party must be inferred as a matter of law.
165 Ind.App. 451, 332 N.E.2d 244.
The court further stated an act is excluded from coverage under the clause:
where reason mandates that from the very nature of the act, harm to the injured party must have been intended. A...
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