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Pettit v. Erie Insurance Exchange9/5/1997
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292 Md. at 193.
In addition, in Aetna Casualty & Surety Co. v. Cochran, 337 Md. 98, 108, 651 A.2d 859 (1995), the Court of Appeals said that "the insurance policy along with the allegations in the complaint are not the sole means of establishing a potentiality of coverage," noting:
Allowing an insured the opportunity to establish a defense to tort allegations which may provide a potentiality of coverage under an insurance policy prior to the insured incurring expenses associated with maintaining a defense in that tort action is precisely what the insured bargained for under the insurance contract. Thus, permitting an insured to establish a potentiality of coverage by reference to sources other than the policy and the complaint addresses this policy concern.
Id. at 110-111 (emphasis added). Moreover, "even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer must still defend if there is a potentiality that the claim could be covered by the policy." Brohawn, 276 Md. at 408.
Accordingly, it is necessary first to ascertain the scope and limitations of the policy's coverage, and then determine whether potential coverage exists. Since Ms. Pettit's underlying negligence tort action charges that Kowalski is a pedophile, the trial court should have considered such evidence before determining whether a potentiality of coverage existed.
I point out that Ms. Pettit's underlying negligence tort action charges Kowalski with three counts of negligently injuring her children. Erie declined Kowalski's coverage and a defense, claiming the allegations in Ms. Pettit's underlying negligence tort action do not support claims of negligence. On the other hand, Erie concedes that potential coverage would exist "if it is possible for the trier of fact to find that one of Mr. Kowalski's alleged actions was negligent."
Traditionally, negligence consists of:
(1) A duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
(2) A failure on the person's part to conform to the standard required: a breach of the duty. . . .
(3) A reasonably close causal connection between the conduct and the resulting injury . . . .
(4) Actual loss or damage resulting to the interests of another. . . .
B.N. v. K.K., 312 Md. 135, 141, 538 A.2d 1175 (1988). Hence, as "the presence of an intent to do an act does not preclude negligence," Ghassemieh v. Schafer, 52 Md. App. 31, 40, 447 A.2d 84, cert. denied, 294 Md. 543 (1982), I believe Ms. Pettit's underlying negligence tort action contained allegations of negligence.
The underlying negligence tort action charges that Kowalski knew, or should have known, that his being a pedophile constituted an unreasonable risk for the Pettit children, and that he had a duty to refrain from such conduct with the Pettit children. Moreover, Ms. Pettit alleged that, as a homeowner, it was Kowalski's duty to provide safe homes for the Pettit children and to protect them from injury because of a dangerous condition in his homes. As Kowalski frequently and gratuitously cared for and supervised the Pettit children in his homes, it was his duty to ensure their safety when entrusted to his care.
According to Ms. Pettit's underlying negligence tort action, Kowalski breached his duty by, (1) failing to restrain his pedophilic conduct when entrusted with the Pettit children; (2) failing to inform their parents that he was a pedophile and an unreasonable risk to the children; a
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