Citation Numbers: 21 Mass. App. Ct. 60
Judges: Kaplan
Filed Date: 10/29/1985
Status: Precedential
Modified Date: 6/25/2022
This appeal is an occasion for renewing the theme of the Gilbane and Sterilite cases
The North Shore Jewish Community Center in Marblehead ran a daily summer camp named Camp Simcha in Middleton.
On July 8, 1977, Michael and Judith and Eric (by Michael as next friend) commenced an action in Superior Court against Michaud Bus Lines
Michaud, then, under Mass.R.Civ.P. 14(a), 365 Mass. 760 (1974), as defendant/third-party plaintiff, impleaded Royal Globe, as third-party defendant, seeking, in effect, a declaration that Royal Globe was bound to provide “defense and indemnification.” Royal Globe moved for summary judgment dismissing the third-party complaint. Profert was made of the liability policy. A judge allowed the motion, also without opinion, and Michaud takes its appeal from the judgment, a rule 54(b) determination regarding this judgment having been obtained. We reverse the judgment.
The policy — a “Comprehensive General Liability” policy — is in familiar form. Under “Insurance Agreements” at the head of the policy, we find: “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage A bodily injury ... to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury . . . even if any of the allegations of the suit are groundless, false or fraudulent ...”
Royal Globe does not dispute that the alleged casualty by kidnapping was an occurrence, as defined,
On the assumption indicated, and in the absence of a relevant “exclusion,” the duty to defend exists regardless of the legal
Royal Globe contends, however, that there is an “exclusion” peculiarly applicable to the remaining count entitled in “contract.” The policy states: “This insurance does not apply: . . . to liability assumed by the insured under any contract or agreement . . ,
We need to distinguish sharply the case of Bond Bros. v. Robinson, 393 Mass. 546 (1984), where a majority of the court held that a certain specific exclusion set out in a “General Liability Multi/Cover Endorsement” controlled, so as to supersede and nullify the warranty of fitness of the insured’s product which appeared as an exception to a contract-exclusion provision similar to that contained in the present policy. There is no endorsement or other provision of the present policy that embodies any such superseding exclusion.
Reading Royal Globe’s brief one gets the impression that its refusal to defend is tied somehow to its belief that the
We decide that Royal Globe is bound to defend the Wolovs’ action. We do not peer into the future to consider what its ultimate responsibility may be if the Wolovs’ action should be prosecuted to the end: the insurer’s duty to defend third-person claims is “distinct from and of broader scope than the further obligation to indemnify the insured against judgments obtained against it within the policy coverage.” Sterilite, 17 Mass. App. Ct. at 318 n.4; Shapiro v. Public Serv. Mut. Ins. Co., 19 Mass. App. Ct. 648, 653 (1985). Nor need we decide whether Royal Globe could be held responsible for the legal expenses cast on Michaud by its having to establish Royal Globe’s duty to defend through the present third-party complaint and appeal. See Sterilite, at 325 n.20.
Judgment reversed.
Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143 (1984). Sterilite Corp. v. Continental Cas. Co., 17 Mass. App. Ct. 316 (1983).
An officer of Michaud was joined as a party defendant but he was ordered dismissed from the action and we need not refer to him further.
“ ‘ [Olccurrence’ means an accident, including injurious exposure to conditions, which results ... in bodily injury . . . neither expected nor intended from the standpoint of the insured.”
“ ‘ [Bjodily injury’ means bodily injury, sickness or disease sustained by any person.” In addition to the injuries alleged to have been suffered by all the plaintiffs —• physical strain and mental and emotional distress — we may note that the boy Eric was the victim of trespass and false imprisonment as elements of the kidnapping.
The words omitted here are “except an incidental contract,” so defined elsewhere as to be irrelevant.
The quoted clause has been taken to refer to “liability incurred when one promises to indemnify or hold harmless another.” See Olympic, Inc. v. Providence Wash. Ins. Co., 648 P.2d 1008, 1011 (Alaska 1982), and authorities cited. See also the dissent in Olympic, in agreement on this point. The clause may refer to other contracts similarly extraneous.
“When a party binds himself by contract to do a work or to perform a service, he agrees by implication to do a workmanlike job and to use reasonable and appropriate care and skill in doing it.” Abrams v. Factory Mut. Liab. Ins. Co., 298 Mass. 141, 143 (1937); see also Previews Incorporated v. Everets, 326 Mass. 333, 335 (1950).
Royal Globe argues that the dismissal of the seven counts of the complaint establishes as “the law of the case” — Shall we say, until and unless that dismissal is reversed? — that there can be no recovery against Michaud in “tort”; hence only a “contract” recovery is now in question; and the “exclusion” cuts off such recovery. It is very hard to attach meaning to this use of the expression “law of the case.” The insistence here on a sharp separation between “tort” and “contract” recoveries appears unjustified if not impossible, cf. note 8, supra. But if we accept “contract” as a neat category, the exclusion is either wholly inapposite or succumbs to its own exception, as we have indicated.
Royal Globe suggests also that damages in strict contract do not ordinarily extend to personal injury caused by chagrin that a party has committed a breach. But a contract may itself promise freedom from personal injury — as the Wolovs contend here — and breach of such a promise is compensable. See Farnsworth, Contracts § 12.17, at 894-895 (1982); Olympic, Inc. v. Providence Wash. Ins. Co., 648 P.2d 1008, 1012 n.8 (Alaska 1982).
We should add that the coverage denied in Bond Bros, was for a liability allegedly owed by the insured to the company to which the warranty was given, not a liability claimed by the usual third person.