Tucson Public School Dist. No. 1 v. Home Ins. Co.

• Citation: 451 P.2d 46,9 Ariz.App. 233
• Decision Date: 28 February 1969
• Docket Number: CA-CIV,No. 2,2
• Parties: TUCSON PUBLIC SCHOOL DISTRICT NUMBER ONE, Appellant, v. HOME INSURANCE COMPANY, Appellee. 615.
• Court: Court of Appeals of Arizona

Page 46

451 P.2d 46

9 Ariz.App. 233

TUCSON PUBLIC SCHOOL DISTRICT NUMBER ONE, Appellant, v. HOME INSURANCE COMPANY, Appellee.

No. 2 CA-CIV 615.

Court of Appeals of Arizona.

Feb. 28, 1969.

Rehearing Denied March 28, 1969.

Review Denied April 29, 1969.

William J. Schafer III, County Atty., Pima County, Lawrence Ollason, Sp. Deputy County Atty., Tucson, for appellant.

Robertson & Fickett, by Leonard Everett and David C. Bury, Tucson, for appellee.

MOLLOY, Chief Judge.

This appeal arises out of a personal injury suit brought by a teacher against the Tucson Public School District Number One. The District filed a third-party complaint against the Home Insurance Company alleging that it had liability insurance with that company which obligated Home to pay any and all damages which might be assessed against it in the principal action. This third-party complaint demanded that a judgment be entered against Home in an amount equal to any judgment which might be obtained against the District in the principal action.

Home Insurance filed a motion for summary judgment, submitting in verified from the provisions of its insurance policy, pointing out those sections which it claimed exempted it from liability as to the subject action. A summary judgment was entered in which there was an express determination that there was '* * * no just reason for delay * * *' and an express direction for entry of judgment against the School District to the effect that it 'take nothing' by its third-party complaint. See Rule 54(b), as amended, R.Civ.P., 16 A.R.S. At the time of the appeal by the District, the action brought by the teacher-plaintiff against the District was still pending.

The complaint giving rise to this litigation alleges:

'On or about December 5, 1966, Plaintiff MARGOT E. MACKEY was employed by Defendant SCHOOL DISTRICT NUMBER ONE and was working as a school teacher at Fickett Jr. High School, and at that time and place, she was attempting to close a venitian (sic) blind in the proper and described manner, when with no apparent reason, the entire blind assembly fell upon her, causing the injuries hereinafter described and further, that the said incident was the result of the carelessness and negligence of defendants.'

The plaintiff in this same complaint alleges a contract of employment with the District and a failure on the part of the defendant to comply with the provisions of A.R.S. § 23--906, which statutory provision requires an employer covered by the Workmen's Compensation Act to post certain notices to employees of the fact of coverage and giving notice of an option to elect, prior to injury, to reject Workmen's Compensation. There are no other allegations of negligence in the complaint.

While the complaint does not, in so many words, say that plaintiff was injured in the course of the employment, this is necessarily implicit in its allegations. Any ambiguity in this regard is clarified by the amended answer of the District:

'* * * admits that Plaintiff Margot E. Mackey was employed by this Defendant on or about December 5, 1966 and that on or about said date the said Plaintiff Sustained injury by accident arising out of and in the course of her employment.' (Emphasis added)

The provisions of the subject liability policy are undisputed. The only possible coverage is contained within that section denominated 'Coverage B,' reading:

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting...