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WORCESTER INS. v. DAIRYLAND INS.3/10/1989
er Kristin's injury falls within the exclusionary provision of the Worcester insurance policy.
In reviewing a motion for summary judgment, we view "the evidence in the light most favorable to the party against whom the motion has been granted and accord that party the full benefit of all favorable inferences that may be drawn from the evidence." Lidstone v. Green, 469 A.2d 843, 845 (Me. 1983). We examine "the record to determine whether it supports the Superior Court's conclusion that there was no genuine issue as to any material fact, and that [Worcester was] entitled to a judgment as a matter of law." Id. Examining the evidence in the light most favorable to the Baxters, although there may be an issue of fact as to how the shooting injury actually occurred, the court properly found that there is no genuine issue of material fact as to whether Darren Smith was in the process of loading his gun into the vehicle at the time Kristin Baxter was shot.
The issue of coverage in the instant case is controlled by our decision in Union Mutual Fire Insurance Co. v. Commercial Union Insurance Co., 521 A.2d 308 (Me. 1987). In Union Mutual we held that a similar exclusionary clause in a homeowner's policy was applicable if the gunshot wound was inflicted on a claimant at the time the insured was loading the gun into or unloading it from a vehicle. Id. at 311-12. It is the activity in which the insured is engaged at the time the gun fired that provides the temporal and spatial nexus that is determinative of the applicability of this exclusion in a homeowner's insurance policy. Here, having determined that there was no genuine issue of material fact that Darren Smith was loading the gun into his pick-up truck at the time Kristin Baxter suffered the gunshot injury , the trial court properly held the exception in Worcester's homeowner's insurance contract with Darren Smith was applicable and granted a summary judgment to Worcester on this issue.
IV
By its cross-appeal Worcester argues that because its homeowner's policy did not
We have previously stated that an insurance carrier has the initial duty to defend an insured " here there is `potential shown in the complaint that the facts ultimately proved may come within the coverage.'" Merrimack Mut. Fire Ins. Co. v. Brennan, 534 A.2d 353, 354 (Me. 1987) (emphasis in the original) (quoting Travelers Indem. Co. v. Dingwell, 414 A.2d 220, 226 (Me. 1980)). Facts known to an insurer by investigation or otherwise which prove noncoverage "do not relieve the insurer of its obligation to defend, unless the duty is discharged by means of a declaratory judgment action." 7C J. Appleman, Insurance Law and Practice § 4683, at 52 (1979) (citations omitted). "A determination in insurer's subsequent declaratory relief action that insurer was not liable under policy terms would not have the effect of retroactively relieving insurer of duty to defend, but, once judgment in relief action became final, insurer's duty to defend actions ceased." Id. § 4686, at 174.
Applying these established principles to the facts of this case, we hold that the summary judgment granted to Worcester relieves Worcester of any duty to defend further against the Baxters' claims, but it does not retroactively relieve it of its initial duty. Accordingly, the trial court properly determined that, in the circumstances of this case, Dairyland is not obligated to reimburse Worcester for expenses incurred by Worcester in the fulfillment of its initial duty to defend Darren Smith against the claims set forth in the Baxters' complaint.
The entry is:
Judgment affirmed.
All concurring.
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