Insurance Co. of North America v. Insurance Co. of State of Pennsylvania
| Citation | 17 Wn.App. 331,562 P.2d 1004 |
| Decision Date | 11 April 1977 |
| Docket Number | No. 4276--I,4276--I |
| Parties | INSURANCE COMPANY OF NORTH AMERICA, a Foreign Corporation, Respondent, v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a Foreign Corporation, Appellant, Leland Carlisle, as Personal Representative of the Estate of Clayton D. Carlisle, and EMCO Helicopters, Inc., a Washington Corporation, Respondents. |
| Court | Court of Appeals of Washington |
Reed, McClure, Moceri & Thonn, P.S., William R. Hickman, Seattle, for appellant.
Merrick, Hofstedt & Lindsey, Thomas V. Harris, Seattle, for respondent Ins. Co. of North America.
Roberts, Shefelman, Lawrence, Gay & Moch, D. A. Bennett, Seattle, for respondent Carlisle.
Robert B. Sherwood, Bellingham, for respondent EMCO Helicopters.
Insurance Company of North America brought this declaratory judgment action against Insurance Company of the State of Pennsylvania and others to determine which of them was responsible for liability coverage and the duty to defend a wrongful death action against EMCO Helicopters, Inc., which both companies insured. All parties moved for summary judgment; the trial court granted North America's motion and ordered Pennsylvania to pay North America its defenses costs and the judgment rendered against EMCO in the wrongful death action. Pennsylvania appeals.
The facts are these. On July 16, 1973, a pilot of EMCO, while operating a helicopter in a high danger fire area, attempted to extinguish a cigarette on the exterior of the helicopter's fuselage. A forest fire resulted. Subsequently, a helicopter owned by a different company fell upon and killed Clayton D. Carlisle, who was fighting the fire on foot. Carlisle's personal representative commenced an action against EMCO and others. Defense of the action was tendered to North America, EMCO's comprehensive general liability and airport liability carrier, and to Pennsylvania, which had issued EMCO an aviation policy. Pennsylvania refused the tender; North America accepted under a reservation of rights and defended the action, which resulted in a money judgment in favor of Carlisle and against EMCO.
Pennsylvania's aviation policy states that the company:
AGREES to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.
North America's policy provides EMCO with general liability coverage, but contains this exclusion:
This insurance does not apply:
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any . . . aircraft owned or operated by . . . the Named insured, or
(2) any . . . aircraft operated by any person in the course of his employment by the Named insured.
Pennsylvania's first contention is that it had no duty to defend the action brought against EMCO or to provide liability protection because the complaint did not allege liability within the terms of the coverage. The critical allegation in the complaint against EMCO is that The fire . . . was started by the defendant EMCO Helicopters, Inc.'s negligence, in that one of its employees acting within the scope and duties of his employment carelessly and negligently failed to extinguish a cigarette, which cigarette ignited forest debris and resulted in the fire.
One rule concerning the duty to defend has been stated as follows:
It is well established in this and other jurisdictions that the insurer's duty to defend, unlike its duty to pay, arises when the complaint is filed and is to be determined from the allegations of the complaint.
Holland America Ins. Co. v. National Indem. Co., 75 Wash.2d 909, 911, 454 P.2d 383, 385 (1969). However, if the allegations of the third party's complaint are inadequate to determine the character of the claim, the facts giving rise to the...
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