Pullen v. Cincinnati Ins. Co., Inc.

• Decision Date: 19 June 1981
• Citation: Pullen v. Cincinnati Ins. Co., Inc., 400 So.2d 393 (Ala. 1981)
• Parties: Louise P. PULLEN, as Administratrix of the Estate of Stephen Thomas Pullen, deceased v. CINCINNATI INSURANCE COMPANY, INC., a Corporation. 80-132.
• Court: Alabama Supreme Court

Page 393

400 So.2d 393

Louise P. PULLEN, as Administratrix of the Estate of Stephen Thomas Pullen, deceased v.CINCINNATI INSURANCE COMPANY, INC., a Corporation.

80-132.

Supreme Court of Alabama.

June 19, 1981.

Carleton P. Ketcham, Jr., H. L. Ferguson, Jr., and J. Terrell McElheny of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.

Edgar M. Elliott and Michael K. Beard of Rives, Peterson, Pettus, Conway, Elliott & Small and William A. Scott, Jr., and Thomas E. Ellis of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.

BEATTY, Justice.

Appeal by defendantLouise P. Pullen, as administratrix, from an adverse judgment rendered in a declaratory judgment action brought by plaintiffCincinnati Insurance Company and in which State Farm Fire and Casualty Company is intervenor.We affirm in part, reverse in part, and remand.

In December 1975 Cincinnati issued a policy of insurance to the City of Homewood for a three-year period.This policy was a "Comprehensive Property and Casualty Insurance Policy."

In January 1976 Cincinnati issued a policy of insurance to the Homewood Board of Education, also for a three-year period.This policy contained "Owners', Landlords' and Tenants' Liability Insurance."

Both policies contained the same definition of the persons insured:

Each of the following is an insured under the insurance to the extent set forth below:

(c) If the named insured is designated in the declarations as other than an individual, partnership, or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;

. . . .

Each policy also provided that Cincinnati agreed to "pay on behalf of the insured all sums which the insured shall become legally obligated to pay ... (and) to defend any suits against the insured."

Earl B. Lawley, a resident of Homewood, was employed by the Homewood Board of Education on June 8, 1970, and on November 14, 1978he was the building supervisor, or engineer, for Homewood High School.His position also required him to be on call for service at four other Homewood schools.He was responsible for the maintenance and upkeep of the football stadium located at West Homewood, and he also was construction consultant to the Board of Education.In his capacity as building engineer at Homewood High School, Lawley was supervisor of the maintenance staff at that school building and had management responsibility over the maintenance staffs of the other schools.Lawley apparently had authority to enter into contracts with others for the Board in connection with his maintenance responsibilities, and in emergency situations he was allowed to act for the Board.On some occasions he attended Board meetings to give information involving building contracts and architectural services.

In addition to Lawley's functions as building superintendent, his duties for the Board also included the security of property and persons in and about the Homewood school system.Thus he had directed traffic on occasion, and sometimes aided in resolving security problems with persons coming onto school property without authority.The record discloses instances in which Lawley performed security and maintenance duties on South Lakeshore Drive, a public road leading to Homewood High School (the only road leading to the school) and which were, in fact, off of school property.

The record also establishes that shortly after the school building was occupied in January 1973 the principal of Homewood High School called upon the City of Homewood to provide security for the school property and for the safety of the schoolchildren.According to the then principal, Mr. Gross, the city officials considered the school property to be private property outside the city limits and, therefore, did not provide the needed protection.Gross and Lawley subsequently visited the mayor of Homewood and its chief of police.As a result of this visit Gross and Lawley were issued a badge and an ID card which identified each of them as a special policeman for the City of Homewood.The school purchased handcuffs for them, and the Homewood Police Department issued them traffic accident report forms to be used in connection with investigations of accidents on or near the school premises.

Mr. Gross left the position of principal of Homewood High School during 1978 to become Superintendent of Education for the City Board of Education.At the time he departed he possessed a pistol which he had kept, for security, in a desk drawer at the school.When he cleaned out his desk upon his departure he asked Lawley to keep the weapon for him.

On November 14, 1978, Lawley arrived at Homewood High School at approximately 6:55 a. m. Shortly thereafter a guidance counselor at the school, Mrs. Charlotte Gibson, requested him to check on a person down on South Lakeshore Drive who was acting strangely.At that time teachers and school children were proceeding to school via that road.Lawley went out the road in a pickup truck assigned to him by the Homewood Board of Education and which bore a municipal license plate, a truck which normally he took to and from work.When he arrived at a point approximately one hundred yards from the school property, in an area used as an access to the school, Lawley came upon a young man walking in small circles in the middle of the road.Traffic continued on by leaving the roadway.Lawley pulled up beside the man, rolled his door window down, and asked if he could help him.Hearing no reply, Lawley asked for identification, and the young man then, in return, asked for Lawley's identification.At that point the young man was about one or two feet from the truck and was standing still.Lawley showed him his badge, and when the other had stated that it wasn't good enough, Lawley handed him his ID card.The man looked it over and handed it back to Lawley, stating that it wasn't good enough either.According to Lawley, as he was placing his card into his wallet the young man struck him on the side of his face with his fist.Lawley then leaned over to get a pair of handcuffs from the glove compartment as the young man continued to strike at him and attempted to open the truck's door.The pistol (turned over to him by Gross) was at that time lying on the seat.Lawley opened the door on the driver's side and got out of the truck, holding the pistol in his right hand and the handcuffs in his left, being struck in the chest as he got out.Lawley asked the man to place his hands on the side of the truck, but his assailant grabbed the hand with the handcuffs and was pulling on it.Using the pistol in club fashion, Lawley made a striking motion toward the man.The pistol went off.The other man, Stephen T. Pullen, said he had been shot, stopped fighting, and with Lawley's help went to the side of the road where he sat down.A short time later he was taken to a hospital where he died.

This action by Cincinnati sought a determination of liability coverage questions and an injunction against Louise P. Pullen from continuing a wrongful death action she had filed against Lawley, the City of Homewood, and the Homewood Board of Education.The trial court entered no order on that aspect of those proceedings because the parties agreed not to pursue it pending resolution of the coverage questions.State Farm was allowed to intervene in order to determine whether Lawley was entitled to coverage under a homeowners policy issued to him by State Farm.

Following a hearing the trial court rendered a judgment in which it found no coverage to exist under either of the policies.Under the Cincinnati policies, the court found that Lawley did not qualify as an "insured" and that the "occurrence" made the basis of the wrongful death action did not take place in connection with "insured premises" as defined by one of those policies.The court found that no coverage was afforded under State Farm's homeowners policy (1) because of a failure to provide notice, and (2) because the event arose out of a business pursuit and thus was excluded under the terms of that policy.

The paramount issues are, therefore, whether Lawley was an "insured" and whether the shooting incident was an "occurrence" in connection with "insured premises," under the Cincinnati policies; and, under State Farm's homeowners policy, whether the shooting incident arose out of a business pursuit and was therefore excluded, and if not, whether there was a failure of notice to the company as required by the policy.

I.

Was the "occurrence" in connection with the "insured premises"?That term is defined in the policy:

"insured premises" means (1) the premises designated in the declarations, ... and includes the ways immediately adjoining such premises on land.

The testimony amply establishes that the way on which the incident occurred was one immediately adjoining the school premises.Both Lawley and Gross testified to that fact.The point on South Lakeshore Drive where it took place was variously described as being within a hundred yards of the ground owned by the high school and about two tenths of a mile from a chain link fence located 50 to 60 feet west of the actual boundary line.Gross and Lawley testified to the "connection" of Lawley's presence there:

(From Mr. Lawley's testimony:)

Q Were you in about your employment at the time you went out to investigate this occurrence?

A Yes, sir.

Q Was that part of your duties and responsibilities as an employee of the City Board of Education?

A As I understood them, yes, sir.

(From Mr. Gross's testimony:)

Q And, certainly in the performance of his duties on that morning as you understood it, Mr. Lawley was carrying out his duties as an employee of Homewood

MR. ELLIS: I object.Calls for a conclusion.

THE COURT: He can ask if he knows.

Q Was he not?

A Yes.

Q He was about his business for the...