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Tennessee Farmers Mutual Insurance Co. v. Hostetler7/28/2000
This appeal arises from a declaratory judgment action filed in the Lauderdale County Circuit Court by Tennessee Farmers Mutual Insurance Company. The complaint sought a declaration that Tennessee Farmers was not obligated to defend or indemnify its insureds against a wrongful death lawsuit filed by James Drake, executor of the estate of Mattie Lee Drake. After both sides filed motions for summary judgment, the trial court ruled that coverage did not exist under the Personal Liability Insurance Policy and entered summary judgment in favor of Tennessee Farmers Mutual Insurance Company.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded
Alan E. Highers, J., delivered the opinion of the court, in which Farmer, J., and Lillard, J., joined.
OPINION
In this declaratory judgment action, James D. Drake appeals from the order of the Lauderdale County Circuit Court granting summary judgment in favor of Tennessee Farmers Mutual Insurance. For the reasons stated herein, we reverse the decision of the trial court.
Facts and Procedural History
On March 19, 1996, Mattie Lee Drake was attacked and killed by two rottweiler dogs allegedly owned by Roger Hostetler. On May 3, 1996, James Drake, as Administrator of his mother's estate, filed a complaint against Hostetler asserting claims for wrongful death.
At the time of the attack which led to Mrs. Drake's death, Hostetler was insured under a personal liability insurance policy issued by Tennessee Farmers Mutual Insurance Company ("Tennessee Farmers" or "TFM"). This policy was first issued on January 19, 1989. At the time of its issuance, the policy contained an "intentional acts" exclusion which stated:
Under Personal Liability Coverage and Medical Payments to Others Coverage, we do not cover:
5. Bodily injury or property damage expected or intended by an insured person.
On November 7, 1989, the following endorsement was placed on the insurance policy:
The Personal Liability and Medical Payments to Others Coverage provided by this policy shall not provide coverage arising from or in connection with the dog owned by or in the care, custody or control of any insured person. (emphasis added).
Both of the above exclusions were part of the policy and in full force at the time of the attack.
Burnie Norman, an independent agent for Tennessee Farmers, testified to the circumstances which led to the dog exclusion being placed on Hostetler's policy. In essence, the dog exclusion was placed on the policy after Mr. Norman, in or around November of 1989, had occasion to view Hostetler's dog and determine that it might, in fact, be a dangerous animal. At that time, Hostetler owned only one dog, a rottweiler named Damien. However, subsequent to the exclusion being placed on the policy, Hostetler acquired two additional rottweiler dogs named Max and Maxine.
On July 15, 1996 Tennessee Farmers filed a complaint for declaratory judgment alleging that no coverage existed under the policy for the dogs that attacked and killed Mattie Lee Drake. TFM sought a declaration that it was not obligated to defend Hostetler against the tort action filed by James Drake, nor was it obligated to pay any judgment rendered against him. TFM's position was based on both the "intentional acts" and "bad dog" exclusions to Hostetler's policy of insurance. The trial court rejected the argument that the intentional acts exclusion served to preclude coverage under the policy. The court found that the attack was neither an expected nor intended act on the part of Hostetler. However, the court
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