BOND BUILDERS v. COMMERCIAL UNION INS.
3/13/1996
In this declaratory judgment action plaintiffs Bond Builders, Inc. and Robert Bond seek a determination as to which of three insurers owe a duty to defend them in a tort action brought against them by Mark S. Santos. Commercial Union Insurance Company provided workers' compensation insurance to the plaintiffs. Massachusetts Bay Insurance Company provided liability insurance to the plaintiffs under a comprehensive general liability policy. Hanover Insurance Company insured the plaintiffs under an umbrella policy. On cross-motions for a summary judgment the Superior Court (Hancock County, Marsano, J.) determined that only Commercial Union was required to defend plaintiffs. Both Commercial Union and the plaintiffs appeal. We vacate the judgments of the Superior Court and remand for entry of a judgment declaring that Commercial Union has no duty to defend the plaintiffs, but Massachusetts Bay Insurance Company and Hanover Insurance Company do owe duties to defend.
We review the trial court's order granting a summary judgment for errors of law. NE Properties, Inc. v. Chicago Title Ins. Co., 660 A.2d 926, 927 (Me. 1995). A duty to defend is determined by comparing the allegations in the underlying complaint with the provisions of the insurance policy. Id. The "insured is entitled to a defense `if there exists any legal or factual basis which could be developed at trial which would obligate the insurers to pay under the policy.'" Id. (quoting Baywood Corp. v. Maine Bonding & Casualty Co., 628 A.2d 1029, 1030 (Me. 1993) (citation omitted)). An insurer's duty to defend is a question of law. Id. 660 A.2d at 927.
The underlying complaint brought against the plaintiffs and Gary Scott Archer alleges in pertinent part:
Defendant Robert Bond was the head supervisor and president of
Bond Builders Inc.; The Defendant Bond Builders Inc. and the
Defendant Bond were the employer of Defendant Archer and
Plaintiff Santos, and the Defendant Archer was a foreman and
the employee and servant of the Defendants Bond and Bond
Builders Inc., while Plaintiff, who has been deemed ineligible
for workers compensation benefits, was a carpenter working for
the said Defendants.
The complaint goes on to allege that (1) Archer committed an assault and battery upon Santos, (2) Bond Builders failed to maintain a safe worksite, (3) Bond Builders failed to supervise its employees, (4) Bond Builders' tortious conduct caused Santos to suffer severe emotional distress, (5) Santos suffered employment discrimination in violation of the Maine Civil Rights Act, the Maine Human Rights Act, and the United States Civil Rights Acts, and (6) Bond Builders' actions constitute actual malice.
It is against the allegations contained in the underlying complaint that we compare the insurance policies. Northern Sec. Ins. Co. v. Dolley, 669 A.2d 1320 (Me. 1996).
I.
The policy issued by Commercial Union is entitled "Workers Compensation And Employers Liability Insurance Policy." By virtue of Part One of the policy Commercial Union undertakes to
pay promptly when due the benefits required of [Bond Builders,
Inc.] by the [Maine] workers' compensation law
and obligates Commercial Union
to defend at [Commercial Union's] expense any claim, proceeding
or suit against
[Bond Builders, Inc.] for benefits payable by this insurance.
On its face Commercial Union owes no duty, by virtue of Part One of its policy, to defend Santos's tort claim action. By virtue of Part Two of its policy, Commercial Union agrees to defend Bond Builders and pay damages where recovery is permitted by law.
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