 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dilbert v. Hanover Insurance Co.4/27/2005
rought against an 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence' to which this coverage applies, we will . . . ay up to our limit of liability for the damages for which the 'insured' is legally liable . . . rovide a defense at our expense . . ., even if the suit is groundless, false or fraudulent."
And the definition section of the policy also states as follows:
"1. 'Bodily injury' means bodily harm, sickness or disease.
". . .
"5. 'Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in:
"a. 'Bodily injury'; or
"b. 'Property damage.'
"6. 'Property damage' means physical injury to, destruction of, or loss of use of tangible property."
The policy also includes an endorsement modifying the definition of "'bodily injury' . . . to include . . . personal injury " and defining "'personal injury' injury arising out of one or more of the following offenses: . . . 3. Invasion of privacy, wrongful eviction or wrongful entry."
d. Plaintiffs' Demand and Hanover's Refusal
Defense of the Remsen action was tendered to Hanover by letter dated January 6, 1995, with an enclosed copy of the complaint and an explanation of the basis upon which the plaintiffs demanded defense and indemnification. Hanover declined.
Plaintiffs made a renewed demand to Hanover by letter dated August 14, 1997, enclosing Remsen's answers to interrogatories (see note 2, supra). Hanover again declined to provide indemnification or a defense. At no time prior to either of its refusals to defend did Hanover make any inquiries of either plaintiff concerning the Remsen allegations. The plaintiffs retained personal counsel and settled the Remsen action on March 16, 2000. The settlement of all claims required a payment of $18,750 by the plaintiffs to Remsen.
The plaintiffs commenced the instant action on January 5, 2001. After a hearing on cross motions for summary judgment, the judge ruled that the Remsen complaint was outside the scope of the policy because coverage for both bodily injury and property damage required that there be an occurrence -- defined in the policy as an accident, which the judge took to imply an unexpected or fortuitous event, citing Smartfoods, Inc. v. Northbrook Prop. & Cas. Co., 35 Mass. App. Ct. 239, 242 (1993). The judge characterized Remsen's complaint as a claim that the plaintiffs intentionally occupied the parking space over a period of time, rather than a dispute arising from an occurrence. The judge also opined parenthetically that the matter was in essence a contractual dispute not involving property damage or bodily injury within the meaning of the policy.
2. Discussion
a. The Duty to Defend
As a general rule, the policyholder bears the initial burden of proving coverage within the policy description of covered risks. Markline Co. v. Travelers Ins. Co., 384 Mass. 139, 140 (1981). The scope of the insurer's duty to defend is "based not only on the facts alleged in the complaint but also on the facts that are known or readily knowable by the insurer." Desrosiers v. Royal Ins. Co. of Am., 393 Mass. 37, 40 (1984). The duty to defend arises when the allegations in the complaint "'are "reasonably susceptible" of an interpretation that they state or adumbrate a claim covered by the policy terms' (citations omitted)." Ruggerio Ambulance Serv., Inc. v. National Grange Mut. Ins. Co., 430 Mass. 794, 796 (2000), quoting from Liberty Mut. Ins. Co. v. SCA Servs., Inc., 412 Mass. 330, 332
Page 1 2 3 4 5 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|