Wendell v. Union Mut. Fire Ins. Co.

• Decision Date: 02 January 1963
• Docket Number: No. 862,862
• Citation: 187 A.2d 331,123 Vt. 294
• Parties: Edward S. WENDELL v. UNION MUTUAL FIRE INSURANCE COMPANY.
• Court: Vermont Supreme Court

Page 331

187 A.2d 331

123 Vt. 294

Edward S. WENDELL v. UNION MUTUAL FIRE INSURANCE COMPANY.

No. 862.

Supreme Court of Vermont.

Jan. 2, 1963.

Wilson, Keyser & Otterman, Chelsea, for plaintiff.

W. Edson McKee, Montpelier, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This is an action of contract to recover upon a home owner's liability insurance policy. Trial was by court, findings of fact were made, and judgment entered for the plaintiff to recover $500. damages with interest and costs. The case is here on the defendant's appeal from the judgment order.

So far as here material, the findings show the following facts: The plaintiff is a resident of Bradford, Vermont and the defendant is an insurance corporation doing business in the State of Vermont. During the period under consideration the plaintiff was the owner of a certain dwelling house and a lot of land situated in Bradford, Vermont.

On July 10, 1959 the defendant issued its policy of insurance to the plaintiff, covering the above property, for a term of three years. Section II, paragraph 1(a) of the policy provides:

'Coverage E--Comprehensive, Personal Liability (a) Liability; 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 therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of use thereof.'

Under the Special Exclusion clause paragraph (c) of the policy it is provided:

'* * * under Coverages E. and F. to injury, sickness, disease, death or destruction caused intentionally by or at the direction of the insured.'

On November 24, 1959 the plaintiff, Edward S. Wendell, was sued by Walter M. Stevens of Bradford, Vermont, in the sum of $5,000. for alleged assault and battery which occurred on the premises of the plaintiff on or about September 16, 1959. That portion of the writ, here material, reads:

'3. On, to wit, September 16, 1959, at said Bradford, the Defendant with force and arms upon the body of the Plaintiff a wilful and wanton assault did make, and him, the said plaintiff, the said Defendant did then and there beat, bruise, strike, wound and ill treat with his hands and fists, all without provocation and justification.'

After the writ brought by Stevens was served on Wendell he promptly presented it to the defendant insurance company, and requested it to defend the suit under the terms of its insurance policy. The defendant declined to defend the action, unless under a waiver and reservation of rights and not otherwise. Wendell declined to accept legal aid from the insurance company on this basis.

The action brought by Stevens was tried at the June Term, 1961 Orange County Court, and a verdict was returned for the plaintiff in that action to recover of Wendell the sum of $500. compensatory damages. On August 15, 1961 Mr. Wendell satisfied the judgment obtained against him in that suit. Reasonable attorney's fees and costs incurred by Wendell in defending the Stevens suit amounted to $463.40. This sum has been paid by Wendell.

In addition to the judgment of $500. of the lower court in the proceedings here, the plaintiff claims that he should have been allowed the additional sum of $463.40 expenses incurred in defending the Stevens suit. He claims that the judgment in his favor below against the defendant Union Mutual Fire Insurance Company should have been $963.40, rather than for $500. plus interest. In referring to the plaintiff's claim for expenses, the record before us does not demonstrate that there was a duty on the part of the...