Smith v. St. Paul Guardian Ins. Co., Civ. No. 85-3025.

• Decision Date: 25 November 1985
• Docket Number: Civ. No. 85-3025.
• Citation: 622 F. Supp. 867
• Parties: William Joseph SMITH, Plaintiff, v. ST. PAUL GUARDIAN INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

622 F. Supp. 867

William Joseph SMITH, Plaintiff, v. ST. PAUL GUARDIAN INSURANCE COMPANY, Defendant.

Civ. No. 85-3025.

United States District Court, W.D. Arkansas, Harrison Division.

November 25, 1985.

Walter R. Niblock, Fayetteville, Ark., and Terry M. Poynter, Mountain Home, Ark., for plaintiff.

Wm. Robert Still, Jr., Fayetteville, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

I. Introduction

This is a declaratory judgment action arising under 28 U.S.C. § 2201 to determine the duty, if any, on the part of the defendant insurer to defend the plaintiff in an alienation of affections action currently pending in Baxter County Circuit Court. Jurisdiction and venue are properly in this court.

Defendant issued policies numbered 9LA6A2286 and 503XB3898 to the plaintiff, covering him for a blanket liability of $300,000.00 and $1,000,000.00, respectively. It is admitted that the actions and conduct on the part of the plaintiff which allegedly constitute the tort of alienation of affections occurred during the policy period. A demand was made on the defendant to defend the plaintiff in the pending Baxter County tort action and the defendant has denied the existence of any duty to defend and has refused plaintiff's demand.

Both parties admit that there are no disputed questions of material fact and that the sole issue presented is one of law, i.e., the construction and interpretation of the policy provisions with reference to defendant's contractual duty to defend. Accordingly, the action is before the court pursuant to the parties' cross-motions for summary judgment.

II. The Policies

The underlying insurance policy is a Pak II "plain language" policy. The policy provides, inter alia:

Pak II means broad personal protection. Your Pak II Personal Protection Policy covers you for claims others make against you. The common. And the uncommon. Up to $100,000.

....

... Pak II covers you and your family 24-hours a day anywhere in the world for accidents or incidents that happen during the policy term.

....

All the personal insurance you may need....

(Policy, p. 1)

... Under the liability section of this policy you're covered when somebody makes a claim against you. We'll cover your legal liability up to $100,000 if you're involved in a covered accident or incident where there is property damage, personal injury or death....

What's legal liability? Any injury, damage or loss that you're responsible for under the law.

....

What do we mean by accident or incident? Anything that causes property damage, personal injury or death without you expecting or intending it. If you could've expected the result, you're not covered. The only exception is assault and battery committed to save a life or property (emphasis added).

....

What is personal injury? Bodily injury of course, but also injuries to a person's feeling or reputation. Like mental injury. Mental anguish. Shock. Wrongful eviction. Libel. Slander. Defamation of character. Invasion of privacy. False arrest (emphasis added).

(Policy, p. 2)

We'll pay for the cost of your defense, including investigation, lawyer's fees and court costs when someone makes a claim against anyone insured under this policy (emphasis added).

(Policy, p. 3)

The umbrella policy provides, inter alia:

The Company will indemnify the Insured for all sums which the Insured shall become legally obligated to pay as damages, all as more fully defined by the term "ultimate net loss" on account of:

1. Personal Injuries,

2. Property Damage,

3. Advertising Offense, to which this Policy applies, caused by an occurrence (emphasis added).

....

A. When underlying insurance does not apply to an occurrence:

With respect to any occurrence not covered by the underlying policy(ies) of insurance ... but covered by terms and conditions of this Policy ... the Company will in addition to the amount of the ultimate net loss payable;

(1) defend any suit against the insurer seeking damages on account of personal injury, property damage or advertising offense even if such suit is groundless, false or fraudulent;

(Umbrella Policy, §§ I-II).

The term "Occurrence" means

(1) with respect to subsection (a) of the definition of personal injuries ... an event, .. which results in such personal injury, ... neither expected nor intended from the standpoint of the Insured; (emphasis added).

(2) with respect to subsections (b) and (c) of the definition of personal injuries, an act or series of acts of the same or similar nature, committed during this policy period which causes such personal injury.... (emphasis added).

The term "Personal Injuries," ... means (a) bodily injury, mental injury, mental anguish, shock, sickness, disability; (b) false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, humiliation, assault and battery committed for the purpose of preventing or eliminating danger to persons or property; (c) also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any Advertising activities (emphasis added).

(Umbrella Policy, Definitions 9, 10)

III. Discussion

Defendant argues that alienation of affections is not included within the definition of "personal injury" in the coverage sections of the policies. Defendant further contends that even if alienation of affections is included in the term "personal injury," it is nonetheless excluded from coverage under the definition of "accident" and "occurrence." Defendant additionally asserts that to allow coverage for the tort of alienation of affections would violate the public policy of the state of Arkansas.

The primary policy, the Pak II, defines "personal injury" as including "injuries to a person's feeling or reputation. Like mental injury. Mental anguish. Shock. Wrongful eviction. Libel. Slander. Defamation of character. Invasion of privacy. False arrest" (emphasis added). In the umbrella policy the term "personal injuries" includes the above as well as "sickness," "disability," "false imprisonment," "detention," "malicious prosecution," "humiliation," and "assault and battery" to protect persons or property.

Thus, if the injury sustained by the complainant in the alienation of affections action includes any injury to his feeling similar to mental anguish, shock, or humiliation, then the complainant has alleged a "personal injury" as defined by the policies. This does not necessarily resolve the issues of coverage or the duty to defend, but it does initially disclose whether the injuries sustained by the complainant fall within those against which plaintiff is insured.

The complainant seeks damages for loss of "consortium, comfort, companionship, love, affection and society of his wife."

The court notes that the term "comfort" includes things which bring ease, contentment, and enjoyment, Strite v. McGinnes, 330 F.2d 234 (3rd Cir.1964), and denotes whatever is necessary for physical, mental and spiritual fulfillment. Emmert v. Old Nat. Bank, 246 S.E.2d 236. In essence, then, the complainant seeks compensation for the loss of contentment, enjoyment and physical, mental and spiritual fulfillment he received from his wife's companionship, love and affection during the marriage. The court believes that this is merely another way of stating that the complainant has allegedly suffered a mental injury "like" mental anguish, shock and humiliation because of the plaintiff's conduct. The injury alleged is not a bodily injury, as that term is normally understood, nor a financial one, but rather is an emotional deprivation occasioned by the loss of the complainant's wife's affections. Where adultery is involved it is clear that the primary remedy is damages for emotional distress. See Restatement (Second) of Torts § 685 comment g at 485. As Professor Prosser notes in his treatise: "There has been a gradual shift of emphasis away from `services' and toward a recognition of more intangible elements in the domestic relations, such as companionship and affection." Prosser, Law of Torts § 118 at 895. To maintain the alienation of affections action, "it is not necessary that the wife commit adultery, or that the husband be deprived of any household services, or suffer any pecuniary loss; nor is it necessary that the wife abandon his home, or that there be more than a partial loss of her affections and attentions. The gist of the tort is thus an interference with the wife's mental attitude toward the husband, and the conjugal kindness of the marital relation...." Prosser, supra, at 897-98. The alienation tort is, thus, based upon an interference with the consortium of the spouse. Orlando v. Alamo, 646 F.2d 1288 (8th Cir.1981) (applying Arkansas law).

Damages caused by a loss of the consortium of a spouse are routinely "passed along" to insurers in accidental personal injury actions. The injuries suffered by the complainant are clearly injuries to his "feeling" "like" mental injury, anguish, shock and humiliation. Had the plaintiff accidently mortally wounded the complainant's wife, rather than merely "alienated" her affections, the court believes that the injuries sustained by the complainant, including loss of consortium, sex and comfort, would clearly constitute "personal injuries" within the meaning of the policies and would be compensable thereunder, assuming all other criteria are satisfied. This being the case, there is no reason why the same elements of damage standing alone would not qualify as "personal injuries" under the policies.

The "plain-language" Pak II policy lacks precision and clarity in defining the term "personal injuries," as defined by the nonexclusive list of examples included therein, and in the court's view is ambiguous. The term, as defined, is fairly capable of construction as including the injuries suffered by the complainant. The terms of this policy are to be construed against the defendant, and any doubt as to the meaning of any...