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Travelers Indemnity Co. v. Children's Friend and Service12/1/2005
or Lisa Rowey's proper medical and psychiatric treatment; that Lisa Rowey was not properly diagnosed or treated for her psychological and developmental problems; and that they lost opportunities for her proper diagnosis, treatment, and care. (Id. 20.)
The Rowey plaintiffs filed suit on January 12, 1998, alleging (1) negligent misrepresentation, (2) intentional misrepresentation, (3) negligent infliction of emotional distress, (4) intentional infliction of emotional distress, (5) negligence, (6) breach of fiduciary duty, and (7) breach of contract. (See id.) Subsequently, Travelers filed the present action seeking, inter alia, a declaration that National Union has a duty to contribute to Travelers' defense of CFS in Rowey.
In the past, both Travelers and National Union have provided coverage to CFS. Travelers issued five policies to CFS, providing coverage from January 1, 1982 until January 31, 1986 when CFS cancelled its policy. National Union provided coverage for two different periods. It issued a policy to CFS covering the period between January 1, 1985 and January 1, 1986. Subsequently, National Union issued six more policies to CFS that covered the period from January 29, 1986 to January 29, 1992.
Travelers filed its motion for partial summary judgment with supporting memorandum, affidavit, and exhibits, arguing simply that under the Rowey plaintiffs' complaint, National Union owes CFS a duty to defend because the complaint meets the appropriate standard-the "pleadings test"-by alleging that, as a result of CFS's negligence, "bodily injury " and "property damage" were incurred "within the policy periods." (Travelers' Mem. in Supp. of Summ. J. 6.) National Union filed an objection in which it analogizes the present cause of action to a cause of action for "wrongful birth," arguing that the "occurrence and 'injury'" resulting from a "wrongful adoption" caused by negligent misrepresentation occur at or before the point of adoption and, thus, fall outside National Union's coverage. (National Union's Objection to Travelers' Mot. for Part. Summ. J. 13.) Travelers filed a response in which it contends that National Union's focus on the timing of the "occurrence and 'injury'" goes impermissibly beyond the allegations of the complaint. Travelers further argues that the timing of the "injury" is relevant only to the issue of the duty to indemnify and not to the duty to defend. Finally, Travelers asserts that National Union's analogizing the instant cause of action to a cause of action for wrongful birth is inapt and that in the present case, the injury occurs at the point of discovery.
Both Travelers and National Union have provided supplemental memoranda. In its supplemental memorandum, Travelers principally reiterates its argument that the allegations in the complaint satisfy the requirements of the "pleadings test," adding that the language of the policies requires only that the "injury" be sustained during the policy period. By contrast, National Union argues that the cause of the Rowey's injuries-CFS's negligent misrepresentation-is not an occurrence, and that even if it were, the "occurrence" and resulting injury fall outside National Union's coverage period.
STANDARD OF REVIEW
The Rhode Island Supreme Court has articulated the standard of review this Court must follow in ruling on motions for summary judgment: " ummary judgment is a proceeding in which the proponent must demonstrate by affidavits, depositions, pleadings and other documentary matter . . . that he or she is entitled to judgment as a matter of law and that there are no genuine issues of material fact." Palmisciano v. Burrillville Racing Ass'n, 603 A.2d 317, 320 (R.I. 1992) (c
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