Wilson v. Maryland Casualty Co.

Opinion by

Mr. Chief Justice Horace Stern,

The question is whether there was any duty on the part of the defendant, Maryland Casualty Company, to defend an action for damages brought by one John A. Lees against the plaintiff, John Wilson, who was insured by the Company against liability for accidents.

In the Company’s policy it agreed “To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury, sickness or disease, . . . sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined.” By another clause of the policy it was provided that “Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.”¹ The policy further provided that “As respects such insurance as is afforded by the other terms of this policy the company shall (a) defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; . . .” In other words, the obligation to defend suits against the insured extended only to where insurance against liability was covered by the terms of the policy.

Wilson operated a restaurant and taproom. An action in trespass was brought against him by one John A. Lees, and Wilson called upon the Casualty Company to defend it. The Company refused so to do, whereupon Wilson settled the case and then brought action against the Company to recover the amount of the settlement which he had made, $750. Preliminary objections to his complaint were overruled by the court and the Company was directed to file an answer; upon its failure to do so judgment was entered in favor of Wilson. The Superior Court affirmed the judgment and we allowed this appeal.

Wilson’s complaint against the Casualty Company set forth that on or about the 28th day of January, 1951, “an altercation took place among the patrons of Plaintiff’s restaurant and bar with the result that certain accidental injuries were alleged to have been sustained by John A. Lees”; that Lees instituted an action in trespass against the plaintiff to recover damages allegedly sustained by Lees due to the aforesaid injuries. Had the complaint stopped there it might well be that the Company would have been obliged to defend the action because of the averment that accidental injuries were alleged to have been sustained by Lees. But the complaint had attached to it a “true and correct copy” of Lees’ complaint in the action brought by him against Wilson in which it appeared that Lees did not sue for accidental injuries but, on the contrary, his complaint declared that “On January 28, 1951, while the said plaintiff was lawfully in defendant’s taproom . . . the defendant [Wilson] then and there unlawfully set upon and with great force and violence assaulted the plaintiff [Lees] with a certain blackjack and struck the said plaintiff on the head with said blackjack. As a result of said assault and battery, the plaintiff suffered injuries to his head . . . Said conduct of defendant was unlawful, wanton and malicious.” Indeed, to emphasize the fact that Lees’ claim was not based on any theory of accident or negligence but on the commission of a wilful tort,— indeed of a crime — the complaint added that he, Lees, was “entitled to exemplary and punitive as well as compensatory damages from defendant.” Since, therefore, insurance against liability on such a claim was expressly excluded from the coverage of the policy,² the Company, by reason of the provision that it was obliged to defend only those suits as to which the policy insured against liability, properly disclaimed obligation to defend the Lees suit.

Plaintiff presents the curious argument that merely because he asserted that Lees’ charge that he had committed assault and battery upon him was groundless, therefore the Company was obliged to defend the action. If that contention -were correct the Company would be obliged to defend any and every .action brought against its insured, no matter what its nature, if informed by the insured that the claim was false or if it was in fact false, even though liability in respect to it was not insured by the terms of the policy. It is obvious that the Company’s obligation was not-to defend all suits and claims whatsoever merely 'because they were groundless, but to defend all suits and claims covered by the policy whether or not they were groundless.³ In other words, a cause of action was not insured because of its being false, but was insured if covered by the policy, whether or not it was false. The question is not as to the truth or falsity of a claim, but whether it is covered by the policy; if it is, the Company must defend it; if it is not, its truth or falsity is wholly immaterial.

In Fullmer v. Farm Bureau Mutual Automobile Insurance Co., 350 Pa. 451, 452, 39 A. 2d 623, it was said: “It is scarcely more than a legal platitude to say that in a suit on an insurance policy the primary requisite for recovery is proof by the plaintiff that the claim comes within the general coverage of the policy."

In West Philadelphia Stock Yard Co. v. Maryland Casualty Co., 100 Pa. Superior Ct. 459, 462, it was said that it was “the nature of plaintiff’s claim against the stock company [the insured] which determined whether the company [the casualty insurance company] was required to defend”, but if the claim came within the scope of the policy the company was obliged to defend even though the claim might be wholly groundless, false or fraudulent.

In Springfield Township v. Indemnity Insurance Co. of North America, 381 Pa. 461, 464, 64 A. 2d 781, 762, it was again stated that it is “the nature of the claim which determines whether the insurer is required to defend.”

In Knorr v. Commercial Casualty Insurance Co., 171 Pa. Superior Ct. 488, 90 A. 2d 387, an insurance policy expressly provided that it did not apply to the rendering of any professional services by any person. A claim was instituted against the insured by the patron of a beauty shop for injury sustained by a mechanical hair dryer striking her on the head. The company denied liability to defend the action and its position was upheld by the court on the ground that it was not obliged to defend a suit on a claim which was not within the terms of the policy.

The case of University Club v. American Mutual Liability Insurance Co. of Boston, 124 Pa. Superior Ct. 480, 189 A. 534, relied upon by the plaintiff, is not in point. The policy issued in that case was to indemnify the insured against liability for damages on account of injuries to the insured’s employes who were legally employed. A claim was made against the insured for damages by reason of persona] injury sustained by one of the employes, it being incidentally stated in the complaint that the injured employe was 17 years of age. Judge Keller pointed out that the plaintiffs in that action “based their right of recovery, on the defective condition of the elevator, and did not aver, or -specifically rely on, any illegal employment of the minor plaintiff.” Accordingly it was held that the insurance company was not justified in refusing to defend the suit since, it being shown, without any change thereby in the cause of action stated in the complaint, that the employe was in fact 18 years old, the action was brought within the scope of the policy. In the present case the canse of action against the insured, being for wilful assault and battery committed by him, could not be changed by amendment into a totally different cause of action based on negligence so as to bring it within the terms of the policy.

There is no authority in any jurisdiction whatever to support plaintiff’s position. On the contrary, the rule everywhere is that the obligation of a casualty insurance company to defend an action brought against the insured is to be determined solely by the allegations of the complaint in the action, and that the company is not required to defend if it would not be bound to indemnify the insured even though the claim against him should prevail in that action: Fessenden School, Inc. v. American Mutual Liability Insurance Co., 289 Mass. 124, 193 N. E. 558, citing a host of authorities from Virginia, Tennessee, Ohio, Mississippi, Texas and Kentucky.

In Lee v. Aetna Casualty & Surety Co., 178 F. 2d 750, 751, Judge Learned Hand said: “This language [which was identical with that in the present policy] means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury ‘covered’ by the policy; it is the claim which determines the insurer’s duty to defend; . . . .”

In U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S. W. 2d 815, 819 (Texas), the court said: “Tested by such averments, [in the complaint against the insured] the insurance company could not be called upon to defend a petition which upon its face alleged a state of facts not covered, but- excluded, by the policy.”' ■'

In Lamb v. Belt Casualty Co., 3 Cal. App. (2d) 624, 630, 40 P. 2d 311, 314, it was'said that,- to' determiné whether the insurance-7' company--'7 was' obligéd-'•■' bo'-'-defend an ¿ctibn: brought’ ¿gainst the' insured, “The7 lain guage of its contract [the policy] must first be looked to, and next, the allegations of the complaint . . . for damages against the insured.”

In Ocean Accident and Guarantee Corporation, Ltd. v. Washington Brick & Terra Cotta Co., 148 Va. 829, 139 S. E. 513, it was held that the insurance company was under no obligation to defend an action against the insured if it would not be liable under its policy for any recovery that might be had therein.

In Brodek v. Indemnity Insurance Co. of North America, 292 Ill. App. 363, 384, 11 N.E. 2d 228, 237, the court said: “Defendant contends for the rule that if the insurance carrier would be required to pay a judgment or indemnify the insured in the event the plaintiff prevailed, then it must defend, otherwise it need not defend, and we believe this rule is sustained by the great weight of authority.”

Among numerous cases holding to the same effect as the others thus referred to, may be cited: Morgan v. New York Casualty Co., 54 Ga. App. 620, 188 S.E. 581; Isaacson Iron Works v. Ocean Accident and Guarantee Corporation Ltd., 191 Wash. 221, 70 Pac. 2d 1026; Commercial Standard Ins. Co. v. McKinney, 114 S.W. 2d 338 (Texas Civ. App.); United Waste Mfg. Co. v. Maryland Casualty Co., 148 N.Y.S. 852.

The judgment is reversed and here entered for defendant.

1 Of course a person could not contract for indemnity against liability for damage or injury caused by his own wilful act, much less an assault and battery committed by him. A contract to insure against such liability would obviously be void as being in violation of public policy.

2 In Vaksman v. Zurich General Accident & Liability Insurance Co., Ltd., 372 Pa. Superior Ct. 588, 590, 94 A. 2d 186, 187, 188, it was said: “There is a clear distinction between accidental and intentional injuries or damage”, a distinction that was also pointed out in the cases there cited, namely: Hamilton v. American Indemnity Co., 82 Pa. Superior Ct. 191, 194, 195, and Kraftsow v. Brown, 172 Pa. Superior Ct. 581, 585, 586, 94 A. 2d 183, 185.

3 In United Waste Mfg. Co. v. Maryland Casualty Co., 148 N.Y.S. 852, 858, the court said, with respect to a suit not covered by the policy but alleged to be false and groundless: “The defendant was not obliged to defend an action which was excepted in terms by the policy. . . . that requirement [to defend an action whether true or false] did not, and could not, call upon the defendant to defend an action for which under the terms of the policy it was not liable. That is not what is meant by the provision with reference to defending suits even if .groundless.”