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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/5/1996
ators, comparable to the drafters of the Federal Rules, specifically limited the use of Rule 36 admissions to "the pending action only." See N.C.G.S. ยง 1A-1, Rule 36(a),(b).
Defendant Fireman's Fund references Bowlin v. Duke University, 119 N.C. App. 178, 457 S.E.2d 757, disc. review denied, 342 N.C. 190, 463 S.E.2d 233 (1995), in support of its argument. However, we find such reliance to be misplaced. While an original claim may be preserved when a Rule 41 dismissal is taken, the proceeding is not. At the juncture where a party takes a Rule 41 dismissal, that action or proceeding ends. Further, when that party refiles that action within the one (1) year period allowed by Rule 41, another "action" or "proceeding" is begun. Thus, Bowlin lends no credence to defendant Fireman's Fund's argument that admissions obtained under Rule 36 may be utilized beyond the confines of "the pending action only." Defendant Fireman's Fund's argument, therefore, fails.
II.
Next, defendant Fireman's Fund argues that the trial court committed error in concluding as a matter of law that it provided insurance coverage for the underlying employment discrimination claims and suits brought against plaintiff. An insurer's duty to defend arises when the claim against the insured sets forth facts representing a risk covered by the terms of the policy. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374, reh'g denied, 316 N.C. 386, 346 S.E.2d 134 (1986). The duty to defend is much broader than the duty to indemnify, and may attach even in an action in which no damages are ultimately awarded. Id.
Defendant Fireman's Fund's policies indemnified Cannon for "all sums which the insured shall become legally obligated to pay as damages because of personal [or bodily] injury . . ." and required defendant Fireman's Fund to "defend any suit against the insured seeking damages on account of such injury . . . ." "Personal injury" is defined in two sections of defendant Fireman's Fund's policies. The "Employee Benefits Liability Insurance" portion of defendant Fireman's Fund's policies provides the following:
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages on account of any claim for injury caused by negligent act or omission in the administration of the named insured's employee benefit program, and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements.
The "Additional Definitions" section of the "Employees Benefits
Liability Insurance" part of the policies further provide:
"Personal injury " means injury arising out of one or more of the following offenses:
(a) False arrest, detention or imprisonment, or malicious prosecution;
(b) the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy;
(c) wrongful entry or eviction, or other invasion of the right of private occupancy; or
(d) discrimination.
(emphasis added). The second definition of "personal injury" is contained in the "Additional Definitions" section of the "Broad Form
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