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Travelers Indemnity Co. v. Children's Friend and Service12/1/2005
iting Steinberg v. State, 427 A.2d 338 (R.I. 1981); Ludwig v. Kowal, 419 A.2d 297 (R.I. 1980)); Super. Ct. R. Civ. P. 56(c). A party may seek resolution by summary judgment of fewer than all claims. Coro, Inc. v. R.N. Koch, Inc., 112 R.I. 371, 380, 310 A.2d 622, 627 (1973); Super. Ct. R. Civ. P. 54(b). When the moving party sustains its burden, "the opposing parties will not be allowed to rely upon mere allegations or denials in their pleadings. Rather, by affidavits or otherwise, they have an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998) (citing St. Paul Fire & Marine Ins. Co. v. Russo Bros., Inc., 641 A.2d 1297, 1299 (R.I. 1994)); Super. R. Civ. P. 56(e). During a summary judgment proceeding, "the court does not pass upon the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Palmisciano, 603 A.2d at 320 (citations omitted).
ANALYSIS
Duty to Defend
It is well settled under Rhode Island law that an insurer's duty to defend is a function of the allegations in the complaint filed against the insured. Peerless Ins. Co. v. Viegas, 667 A.2d 785, 787 (R.I. 1995). To determine whether the obligation exists, courts employ the "pleadings test," comparing the complaint in the underlying cause of action with the policy issued by the insurer. Only those facts alleged in the complaint against the insured are compared to the provisions of the insured's policy. Flori v. Allstate Ins. Co., 120 R.I. 511, 513, 388 A.2d 25, 26 (1978). If the facts asserted in the complaint are sufficient to bring the case "potentially within the risk coverage of the policy," the insurer will be duty-bound to defend regardless of whether the allegations are "groundless, false, or fraudulent." Peerless, 667 A.2d at 787. Whether the plaintiffs in the tort action ultimately prevail is irrelevant. Id. Thus, proper resolution of the instant case requires examination of the relevant coverage provisions in the insurance policies provided to CFS by National Union. Based on the following analysis, this Court finds, as a matter of law, that the facts asserted in the Rowey plaintiffs' complaint are sufficient to bring the case potentially within the risk coverage of six out of seven of National Union's policies.
A. The Coverage Provisions
Each of the seven policies issued by National Union to CFS features one of four substantially similar coverage provisions. The National Union insurance policy covering the period from January 1, 1985 to January 1, 1986, Policy No. S 996-24-75, provides that National Union will cover all: damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.
(Travelers' ex. F.) The insurance applies only to "bodily injury" and "property damage" as they are defined in the policy. "Bodily injury" is defined therein as "bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom." (Id.) The policy defines "property damage" as "(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at a
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