Hamlin Incorporated v. Hartford Accident and Indemnity Company, Home Insurance Company, and Home Indemnity Company

86 F.3d 93, 1996 U.S. App. LEXIS 13664
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 7, 1996
Docket95-3251, 95-3255 and 95-3334
StatusPublished
Cited by35 cases

This text of 86 F.3d 93 (Hamlin Incorporated v. Hartford Accident and Indemnity Company, Home Insurance Company, and Home Indemnity Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamlin Incorporated v. Hartford Accident and Indemnity Company, Home Insurance Company, and Home Indemnity Company, 86 F.3d 93, 1996 U.S. App. LEXIS 13664 (7th Cir. 1996).

Opinions

POSNER, Chief Judge.

The DICKEY-john Corporation filed a suit against Hamlin Inc. for breach of contract and breach of warranty. The suit was eventually settled for $2.6 million and Hamlin turned around and brought the present suit, a diversity suit governed by Wisconsin common law, against two of its liability insurers (actually three, but two are affiliates and need not be distinguished), to recover the $2.6 million. Hamlin charges that the two insurers breached their duty to defend it against DICKEY-john’s suit. The district court granted Hamlin’s motion for summary judgment, awarding it the entire $2.6 million (plus interest and attorneys’ fees) even though it is plain that no part of Hamlin’s liability to DICKEY-john is within the scope of the insurance policies.

Most liability insurance policies provide that if the insured is sued and asks its insurer to defend the suit, the insurer must do so; and it must do so, the courts interpreting such policies hold, unless it is plain from the complaint that the plaintiffs claims of liability are not covered by the policy. Unless that condition is satisfied, the insurer will be deemed to have breached its duty to defend even if it should later be determined that the claims were indeed outside the coverage of the policy. Thus the duty to defend and the duty to indemnify (that is, to pay the insurance claim) are not coextensive, and the former, being triggered by arguable as distinct from actual coverage and determined by what the complaint says rather than by the actual facts underlying the claim of liability, is broader. City of Edgerton v. General Casualty Co., 184 Wis.2d 750, 517 N.W.2d 463, 470 (1994); Atlantic Mutual Ins. Co. v. Badger Medical Supply Co., 191 Wis.2d 229, 528 N.W.2d 486, 489 (App. 1995); United States Fire Ins. Co. v. Good Humor Corp., 173 Wis.2d 804, 496 N.W.2d 730, 734 (App. 1993); Curtis-Universal, Inc. v. Sheboygan Emergency Medical Services, Inc., 43 F.3d 1119, 1122 (7th Cir. 1994) (applying Wisconsin law).

An insurance company that refuses a tender of defense by its insured takes the risk not only that it may eventually be forced to pay the insured’s legal expenses but also that it may end up having to pay for a loss that it did not insure against. If the lack of a defender causes the insured to throw in the towel in the suit against it, the insurer may find itself obligated to pay the entire resulting judgment or settlement even if it can prove lack of coverage. That is what happened in Newhouse by Skow v. Citizens Security Mutual Ins. Co., 176 Wis.2d 824, 501 N.W.2d 1 (1993), and is the reason why an insurance company that wants to avoid liability for breach of the duty to defend will often seek a declaratory judgment of noneoverage, to negate any inference of arguable coverage and hence of a duty to defend, before the company has to decide whether to accept the tender of the defense.

The district judge inferred from New-house that an obligation to pay the entire settlement or judgment is the automatic consequence of a finding of a breach of the duty to defend. Dicta in Newhouse and other cases interpreting the Wisconsin common law of insurance-contract interpretation, such as Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106, 123 (App. 1992), and our own Carney v. Village of Darien, 60 F.3d 1273, 1277 (7th Cir. 1995), are consistent with this harsh view. And holdings to this effect can be found in two Wisconsin cases. United States Fire Ins. Co. v. Good Humor Corp., supra, 496 N.W.2d at 734-39, and Professional Office Buildings, Inc. v. Royal Indemnity Co., 145 Wis.2d 573, 427 N.W.2d 427, 431 (App. 1988). But there is a contrary dictum in Grube v. Daun, supra, 496 N.W.2d at 123, while Production Stamping Corp. v. Maryland Casualty Co., 544 N.W.2d 584, 586 (Wis. App. 1996), holds that a wrongful failure to defend will not estop the insurer to plead lack of coverage unless coverage is at least “fairly debatable.” Only Newhouse is a ease from Wisconsin’s highest court, moreover— [95]*95and Newhouse is explicit that the insured must show that he was made worse off by the breach than he would have been had the breach not occurred. 501 N.W.2d at 7. This is also the majority view, 1 Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies and Insureds § 4.37, pp. 267-68 (3d ed. 1995), and it is inconsistent with a rule of always forbidding the insurer that has wrongfully refused to defend the insured’s ease to deny coverage.

In the present case — a ease of multiple insurers, to which the dicta we have referred, which assume that the insured is defending himself, id., § 4.33, p. 256, do not speak — another of Hamlin’s insurers, not one of the defendants, accepted the tender of the defense. This insurer did not pay the entire bill for Hamlin’s defense. But neither is Hamlin some hapless individual who could not afford a good defense unless his insurer or insurers picked up the full tab. Hamlin was defended by Foley & Lardner, one of the best law firms in the United States. Had the insurance companies that are the present defendants helped pay Foley & Lardner’s bills, Hamlin would have benefited to the extent that the insurer which did accept the tender of defense did not cover those bills in their entirety. But it would not have been better off to the tune of $2.6 million. That would imply that if only the defendants had contributed to the cost of the defense DICKEY-john would have been sent packing without a cent, though as far as we can tell its claims against Hamlin were entirely valid. Valid or not, Hamlin couldn’t have expected to do better than with Foley & Lardner — the firm that was in fact its own choice, and not a coerced choice, that is, not a choice to which it turned only because the obstinacy of the defendants made it unable to “afford” an even better firm (if there is one).

To award Hamlin $2.6 million would thus be to give it a windfall, and windfall damages are punitive in nature. Insurance companies that refuse in bad faith to honor their undertakings are liable for punitive damages. Weiss v. United Fire & Casualty Co., 541 N.W.2d 753, 765 (Wis. 1995); Marsh v. Farm Bureau Mutual Ins. Co., 179 Wis.2d 42, 505 N.W.2d 162, 170 (App. 1993). As there is no basis for an inference of bad faith in this ease, the judgment awarded by the district court is inconsistent with Wisconsin’s policy on punitive damages.

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Cite This Page — Counsel Stack

Bluebook (online)
86 F.3d 93, 1996 U.S. App. LEXIS 13664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamlin-incorporated-v-hartford-accident-and-indemnity-company-home-ca7-1996.