Royal Indem. Co. v. Jerry's Sport Ctr. Inc.

• Decision Date: 17 August 2010
• Citation: 2 A.3d 526
• Parties: AMERICAN AND FOREIGN INSURANCE COMPANY, Royal Insurance Co. of America, Safeguard Insurance Company and Royal Indemnity Company, Appellants v. JERRY'S SPORT CENTER, INC., Jerry's Sport Center Northeast, Inc., Bonitz Brothers, Inc., Outdoor Sports Headquarters, Inc., Simmons Gun Specialties, Inc., National Assoc. for the Advancement of Colored People, National Spinal Cord Injury Assoc., American International Insurance Company, Doe Corporations 1-15, Appellees.
• Court: Pennsylvania Supreme Court

2 A.3d 526

AMERICAN AND FOREIGN INSURANCE COMPANY, Royal Insurance Co. of America, Safeguard Insurance Company and Royal Indemnity Company, Appellants

v.JERRY'S SPORT CENTER, INC., Jerry's Sport Center Northeast, Inc., Bonitz Brothers, Inc., Outdoor Sports Headquarters, Inc., Simmons Gun Specialties, Inc., National Assoc. for the Advancement of Colored People, National Spinal Cord Injury Assoc., American International Insurance Company, Doe Corporations 1-15, Appellees.

Supreme Court of Pennsylvania.

Argued May 13, 2009.

Decided Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Jamie Lynn Lenzi, Pittsburgh, Eugene F. Hickey, II, Scranton, Cipriani & Werner, P.C., Celeste M. Butera, Pro Hac Vice, for American & Foreign Insurance Co., et al.

Frederick A. Tecce, Conrad O. Kattner, McShea & Tecce, P.C., Philadelphia, for Amicus Curiae Complex Insurance Claims Litigation Association.

Richard Charles Mason, C. Tyler Havey, Stephen A. Cozen, Cozen O'Connor, Philadelphia, for Amicus Curiae American Ins. Assoc. & National Assoc. of Mutual Ins. Co.

Sal Cognetti, Jr., Foley, Cognetti, Comerford, Cimini & Cummins, David Joseph Solfanelli, Kelley & Polishan, LLC, Scranton, for Jerry's Sport Center, Inc., et al.

John Norig Ellison, Timothy Patrick Law, Bryan William Petrilla, West Conshohocken, Reed Smith, L.L.P., Philadelphia, for Amicus Curiae United Policyholders.

John Edward Iole, Joseph W. Montgomery, III, Margaret Caitlin Gleason, Jones Day, Pittsburgh, Richard H. Albert, Allentown, for Amicus Curiae Air Products & Chemicals, Inc.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

BAER, Justice.

The issue in this case is whether, following a court's declaration that an insurer had no duty to defend its insured, the insurer is entitled to reimbursement of the amounts paid for the defense of its insured in the underlying lawsuit. The trial court held that the insurer was entitled to reimbursement, while the Superior Court held that it was not. For the following reasons, we affirm, holding that an insurer is not entitled to be reimbursed for defense costs absent an express provision in the written insurance contract.

Appellant Insurance Companies are American and Foreign Insurance Company, Royal Insurance Company of America, Safeguard Insurance Company, and Royal Indemnity Company (collectively, Royal). Appellees are Jerry's Sport Center, Inc. and its subsidiaries, Jerry's Sport Center Northeast, Inc., Bonitz Brothers, Inc., Outdoor Sports Headquarters, Inc., Simmons Gun Specialties, Inc. (collectively, Insured). Insured is a firearm wholesaler-distributor and Royal is its commercial liability insurer. ¹

Royal and Insured entered into a commercial liability primary and umbrella insurance contract on or about October 18, 1981, which Insured maintained until about October 18, 2000. This policy insured against bodily injury ² and obliged Royal to pay all expenses it incurred defending Insured. Reproduced Record (R.R.) 993a. It contained no language granting Royal the right to reimbursement of defense costs for a claim ultimately held not to be covered by the insurance contract.

In June, 2000, the National Association for the Advancement of Colored People (NAACP) and the National Spinal Cord Injury Association (NSCIA) filed a civil action against eighteen firearms wholesalers and distributors in the United States District Court for the Eastern District of New York (NAACP action). The NAACP and NSCIA sought to hold the firearms industry liable for injury, death, and other damages to association members through the negligent creation of a public nuisance by virtue of the industry's failure to distribute firearms reasonably and safely. In May of 2001, the NAACP added Insured as a defendant. In its complaint, the NAACP and NSCIA explicitly alleged that the defendants had caused bodily injury to their members. In its prayer for relief, the NAACP sought injunctive relief and monetary damages to establish a fund for the education, supervision and regulation of gun dealers. It did not seek damages to compensate individual members injured by the defendants' actions.

Insured notified Royal of the NAACP action and requested defense and indemnification, claiming that the complaint fell under the “bodily injury” coverage provided by the liability insurance. Royal retained the New York City law firm of Leahey & Johnson to represent Insured in the NAACP action; choosing this firm because of its expertise and past representation of gun industry defendants in a similar action brought by the NAACP. Royal believed that Insured would fair better with independent counsel than in a group defense assembled by other defendants.

In a letter dated June 15, 2001, Royal informed Insured that it had assigned Leahey & Johnson to provide a defense in the NAACP action, and that it was examining available coverage under the insurance policy. Royal further advised that it was providing Insured with a defense under a full reservation of rights, including the right “to seek reimbursement for any and all defense costs ultimately determined not to be covered.” R.R. 2703a. Insured expressed concern that if Royal ultimately determined there was no coverage available to Insured, then it might be less costly for Insured to join a defense group with other defendants rather than proceed with Leahey & Johnson. Royal responded that Insured had the right to retain its own counsel to represent its uninsured interests or to continue to permit Leahey & Johnson to represent their mutual interests. Insured did not obtain independent counsel.

By telephone and letter dated July 12, 2001, Royal indicated that its preliminary assessment revealed that it may be under no duty to defend or indemnify Insured, and that, again, Royal specifically reserved the right to disclaim defense and indemnity based upon the terms of the insurance contract. Royal pledged that during its investigation, it would participate in advancing reasonable and necessary defense costs in the NAACP action with the express reservation that Royal “may seek reimbursement of some or all of these costs in a future declaratory judgment action....” R.R. 2706a. On July 18, 2001, Royal yet again informed Insured that it would continue to pay for Insured's defense until it made its final coverage determination, but that it reserved the right to seek reimbursement for “any and all of the defense costs it incurs in the defense of this matter.” R.R. 2718a. ³ By letter dated August 3, 2001, Royal once more indicated that it would fund the defense until it determined the coverage issue. In this letter, however, unlike the letters of July 12 and July 18, 2001, it specifically informed Insured that it would not seek to recover the defense costs incurred before a final determination of coverage was made, by either Royal or a court, whichever occurred first.

On September 7, 2001, Royal issued a final coverage determination letter informing Insured that pursuant to their insurance contract, Royal “may be under no duty to defend or indemnify [Insured].” R.R. 2724a. Royal further advised that it was contemplating filing a declaratory judgment action to seek a declaration that it was under no duty to defend, and that it may seek reimbursement for some or all of the defense costs incurred after the filing of the declaratory judgment action. Shortly thereafter, on September 12, 2001, Royal followed through and filed a declaratory judgment action seeking a determination that it had no duty to defend or indemnify Insured for the claims asserted in the NAACP action because the action did not allege or involve “bodily injury” as defined in the policy. In due course, on July 16, 2002, Royal moved for summary judgment and requested reimbursement for “fees and costs paid to or on behalf of [Insured] in connection with the defense of the NAACP action incurred and/or paid after the date of the filling of this declaratory judgment action, i.e., September 12, 2001.” R.R. 164-65a.

On February 25, 2003, the trial court granted summary judgment in Royal's favor. To determine whether Royal had an obligation to defend the NAACP claim against Insured, the trial court first ascertained the scope of the insurance coverage granted by the policy. See Wagner v. Erie Ins. Co., 801 A.2d 1226, 1234 (Pa.Super.2002) (“The insurer's duty to defend the insured is dependent upon the coverage afforded by the insured's policy.”). Reviewing the policy, the trial court determined that the bodily injury portion was designed to compensate a claimant for damages that result from injury to one's physical condition. Next, the trial court looked to the allegations set forth in the NAACP complaint to determine if they set forth an injury that was actually or potentially within the scope of the policy. See id. It concluded that the remedy sought in the NAACP action was not the award of damages for bodily injury, but, rather, contributions to a fund for the purpose of the education, supervision, and regulation of gun dealers. ⁴ Thus, the court found that it was clear that the relief sought in the complaint did not fall under the protections of the policy and Royal was not required to defend Insured. The order did not address Royal's summary judgment request for reimbursement of previously expended costs of defense.

Insured appealed the trial court's grant of summary judgment to the Superior Court, which affirmed on April 23, 2004. ⁵ American and Foreign Ins. et al v. Jerry's Sport Center, Inc., et al, 463 MDA 2003, 852 A.2d 1241 (Pa.Super. April 23, 2004), R.R. 1330a. The Superior Court held that the trial court was correct that the complaint sought equitable relief and did not trigger coverage provided by the Royal policy for bodily injury. R.R. at 1337a.

Thereafter, before the trial court, Royal sought reimbursement of defense fees expended on Insured's behalf in the NAACP action from the date Royal filed the...