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Travelers Indemnity Co. v. Children's Friend and Service12/1/2005
complaining party was actually damaged," the court, in Bartholomew, needed to determine the point at which the complaining party was "actually damaged" as a matter of law, not-as here- whether a particular injury was sustained during the coverage period. Even if this Court were to find that the Rowey plaintiffs were injured and "actually damaged," as a matter of law, at the moment of adoption, the language of the National Union policies does not require that the "occurrence" causing the alleged injuries occur during the policy period. Furthermore, the policy language does not necessarily limit coverage to that injury. Therefore, National Union's reliance on Bartholomew is misplaced and its argument fails.
This Court finds that the Rowey plaintiffs' complaint alleges that as a result of CFS's negligent misrepresentation-an "occurrence"-they suffered "bodily injury " which, as plead, may have been sustained during the coverage periods of the six remaining policies by which National Union insured CFS. Ergo, this Court is satisfied that the Rowey plaintiffs' complaint meets the requirements of the "pleadings test," thereby subjecting National Union to a duty to defend.
CONCLUSION
Adhering to the "pleadings test," this Court concludes that there are no genuine issues of material fact and that, on the strength of those facts, because it is possible that the Rowey plaintiffs' alleged injuries were sustained within the coverage period of the National Union policies covering the period between January 29, 1986 and January 29, 1992, Travelers is entitled to partial summary judgment, as a matter of law, establishing that National Union owes CFS a duty to defend under those policies. Travelers' motion for partial summary judgment is, therefore, granted as to Count II of its First Amended Complaint for declaratory relief against National Union with respect to those policies, but denied with respect to the National Union policy covering the period between January 1, 1985 and January 1, 1986. This Court declares, accordingly, that National Union has a duty to defend CFS in the case of Rowey v. Children's Friend & Serv., C.A. No. PC 98-0136, and to contribute to defense costs incurred and to be incurred by Travelers in connection with that case.
Counsel shall confer and submit to this Court forthwith for entry an agreed upon form of order and judgment that is consistent with this Decision.
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