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Baltimore Gas and Electric Co. v. Commercial Union Insurance Co.2/4/1997
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Pryseski, 292 Md. at 193. Subsequent decisions have consistently reaffirmed the Pryseski test. Sheets, 342 Md. at 643; Cochran, 337 Md. at 103-04; Aaron, slip op. at 8-9; Lawyers Title Ins. Corp. v. Knopf, 109 Md. App. 134, 674 A.2d 65, cert. denied, 343 Md. 333, 681 A.2d 69 (1996); Chesapeake Physicians Professional Ass'n v. Home Ins. Co., 92 Md. App. 385, 608 A.2d 822 (1992). In addition to examining the insurance policy and the allegations raised by the tort plaintiff, the court may also consider "extrinsic evidence" adduced by the insured to determine if the tort plaintiff's suit is covered by the policy. Cochran, 337 Md. at 111; see also Sheets, 342 Md. at 640 n.2.
The Corradettis' amended complaint against Jones, C&P; Spector, BGE, and Ferguson alleged, in part:
4. That on October 10, 1990, while the Plaintiff was backing his vehicle from a private driveway onto Seamore Street, and while exercising all due care and prudent caution for his own safety, his vehicle fell into an excavation made by the Defendant corporations, by their agents, servants or employees which excavation was created by the negligent, careless and reckless construction activities of the Defendants, their agents, servants and employees.
5. That said fall and injuries to the Plaintiff occurred by reason of the negligence, carelessness and lack of due care on the part of the Defendants, by their agents, servants or employees in that they: did fail to fully fill-in, grade and level the area of excavation created by construction activities; they did fail to post adequate signs, warnings, barriers, or protection for vehicles and pedestrians traversing the area when they knew, or with the exercise of reasonable care should have known, that the failure to so act would cause a condition hazardous to the public; they did fail to grade the area to level with the existing topography in relationship to road and sidewalk areas; they did create a hazard to motor traffic by causing an excavation adjacent to the road which was at least partially obscured by the improper grading and adjacent vegetation.
These assertions do not specify the particulars of the negligence claim against BGE. Rather, the general allegations include a claim against BGE grounded on derivative liability, based on BGE's failure to supervise its agents, and a claim of liability based on its own conduct. In our view, it is not dispositive that the Corradettis failed to "allege facts which clearly bring the claim within or without the policy coverage," Brohawn, 276 Md. at 408, as "'any doubt as to whether there is a potentiality of coverage under an insurance policy is to be resolved in favor of the insured.'" Chantel, 338 Md. at 145 (citation omitted). Indeed, in Sheets, the Court recognized that "there is an important difference between the duty to defend a lawsuit that affirmatively makes a claim that falls outside of the coverage of the policy, and the duty to defend a lawsuit that fails to allege the elements of a cause of action that if properly alleged and proven would be within the coverage of the policy." Sheets, 342 Md. at 644. Moreover, the "duty to defend is broader than and different from the duty to pay." Luppino v. Vigilant Ins. Co., 110 Md. App. 372, 381, 677 A.2d 617 (1996). Based on the complaint, we are amply satisfied that there was the potentiality for coverage under the Commercial policy. Therefore, at least initially, Commercial had a duty to defend BGE in the Corradetti suit.
Ultimately, the Corradettis chose to pursue their claim only against BGE, on the theory that BGE was solely responsible for the occurrence because of its own negligence. At the hearing on the motion to dismiss in the Co
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