 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Miller v. Triad Adoption and Counseling Services2/6/2003
uly 28, 2000, complaint did not arise out of the professional services of the counselor/human development professionals at Triad/Choices. We hold, as a matter of law, that TRA has no duty to defend Triad/Choices against the Millers' July 28, 2000, complaint because the complaint and the known facts do not arguably bring the claim within coverage under the policy.
Exclusionary Clause/Insurable Act/Indemnity
TRA argues that the exclusionary clause, which excludes coverage for "any fraudulent, criminal , malicious, or materially dishonest acts or omissions of the Insured," applies to the July 28, 2000, complaint. TRA asks us to determine that Triad/Choices' act of transferring assets was an intentional attempt to avoid a judgment that violated the insurance policy and public policy, and that the act also did not encompass an insurable event. We need not reach these issues because we have determined that the July 28, 2000, complaint and the known facts do not bring the July 28, 2000, claim within the coverage stated in the insuring clause of the policy. Therefore, the exclusionary clause need not be invoked or interpreted, nor do we need to consider the broad concept of insurabililty in general or public policy relating thereto.
We also do not address Triad/Choices' argument that the question of indemnity is premature, because we have determined that TRA has no duty to defend in this case because the complaint does not bring the claim within coverage under the policy. See N.M. Physicians Mut. Liab. Co., 116 N.M. at 95, 860 P.2d at 737 (stating that when the insurer is relieved of liability it is also relieved of its duty to defend).
Duty to Conduct an Investigation
Triad/Choices finally argues that TRA did not conduct an appropriate investigation into the facts and circumstances of the case before it rejected the claim. See G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, 23, 128 N.M. 434, 993 P.2d 751 (" n insurance company is required to conduct such an investigation into the facts and circumstances underlying the complaint against its insured as is reasonable given the factual information provided by the insured or provided by the circumstances surrounding the claim in order to determine whether it has a duty to defend."). The record contains a detailed letter from Triad/Choices' counsel to TRA outlining the facts and legal reasoning for its request for a defense, letters of response from TRA's Senior Claims Consultant and TRA's attorney, and an affidavit from TRA's attorney swearing that she had learned no new facts as of April 2001. The record also contains minutes of the Triad board of directors meeting on February 28, 2000, at which the directors discussed the Millers' complaint and the change from Triad to Choices. More importantly, Triad/Choices does not provide any additional facts for TRA or this Court to consider, or point to any facts that TRA failed to consider. Accordingly, based on the facts in the record and the lack of additional or unconsidered facts, we find no reason to determine that TRA did not perform an adequate investigation.
CONCLUSION
In light of the discussion above, we affirm.
IT IS SO ORDERED.
LYNN PICKARD, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
RODERICK T. KENNEDY, Judge
|