Mapes Indus. v. US FIDELITY AND GUAR.

560 N.W.2d 814, 252 Neb. 154
CourtNebraska Supreme Court
DecidedMarch 28, 1997
DocketS-95-469
StatusPublished

This text of 560 N.W.2d 814 (Mapes Indus. v. US FIDELITY AND GUAR.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mapes Indus. v. US FIDELITY AND GUAR., 560 N.W.2d 814, 252 Neb. 154 (Neb. 1997).

Opinion

560 N.W.2d 814 (1997)
252 Neb. 154

MAPES INDUSTRIES, INC., a Nebraska corporation, Appellant,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation, et al., Appellees.

No. S-95-469.

Supreme Court of Nebraska.

March 28, 1997.

*815 Tyler J. Sutton and Kerry L. Kester, of Woods & Aitken, Lincoln, for appellant.

Michael A. England, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and SPRAGUE, D.J.

CAPORALE, Justice.

I. STATEMENT OF CASE

In this declaratory judgment action, the plaintiff-appellant insured, Mapes Industries, Inc., seeks a declaration that its insurers, the defendants-appellees United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Underwriters, Inc., and Fidelity and Guaranty Insurance Company, hereinafter collectively referred to as USF&G, are obligated to defend Mapes in a suit brought against it by the defendant-appellee Harmon Contract, W.S.A., Inc. The district court sustained the defendants' motion for summary judgment, thereby dismissing Mapes' action. Mapes thereupon appealed to the Nebraska Court of Appeals, which, in an unpublished memorandum opinion, reversed the judgment of the district court and remanded the matter for further proceedings. See Mapes Indus. v. United States F. & G. Co., 4 Neb.App. xviii (case No. A-95-469, July 3, 1996). USF&G then successfully sought further review by this court, asserting that the Court of Appeals erred in ruling that the district court improvidently overlooked Mapes' potential liability to Harmon. We now reverse, and remand with direction.

II. SCOPE OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, *816 stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Central Neb. Broadcasting v. Heartland Radio, 251 Neb. 929, 560 N.W.2d 770 (1997).

III. FACTS

Mapes, a manufacturer of laminated insulating panels for use in building construction, sold certain panels which were eventually installed in a building erected in Chicago, Illinois. Subsequently, Harmon filed a complaint against Mapes in an Illinois court, alleging that the panels had "delaminated and caused the exterior surface to `ripple,'" that the "defect manifested itself throughout the building," and that Harmon "was compelled to rectify the problem." Mapes tendered the defense of the suit to USF&G.

USF&G denied coverage and any duty to defend the suit, writing that it had "carefully reviewed the complaint" and concluded that it was "evident that the only damages claimed [were] to `rectify the problem' of the delaminated panels manufactured by Mapes" and that the damages claimed did not arise out of an "`occurrence,'" as defined in the policy.

Harmon then amended its complaint against Mapes, adding, so far as is relevant, that Harmon "was forced to correct the defect to avoid and minimize a loss of use of the building and mitigate damages which were caused by the product failure of the panels manufactured by" Mapes and the defendant-appellee Kalco Specialty Sales, Inc., "after the panels had been put to their specified use." Mapes again tendered the amended suit to USF&G, and USF&G again declined to defend Mapes.

At the relevant time, the subject comprehensive general liability policy of insurance provided, so far as relevant, that USF&G would pay on behalf of Mapes all sums which Mapes shall become legally obligated to pay as damages because of "property damage" caused by an occurrence subject to certain exclusions as set forth in parts IV(2)(a) and (b) hereinafter. The policy additionally grants USF&G the right and imposes upon it the "duty to defend any suit against [Mapes] seeking damages on account of such ... property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any suit as it deems expedient...."

IV. ANALYSIS

1. NATURE OF DUTY TO DEFEND

We begin by analyzing the nature of an insurer's duty to defend a suit brought against its insured. Such a study begins with a review of Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981). In the course of holding therein that an insurer's obligation to indemnify an insured could not be determined until there is a final determination of the insured's obligation to respond in damages and the basis of that obligation, we, in considering insuring language very similar to that in question here, wrote:

It occurs to us that there are two separate and distinct obligations provided for by this contract of insurance. In the first instance, Allstate agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay because of bodily injury. That is one contractual obligation existing between Allstate and [the insured]. The second obligation, which is separate and apart from the obligation to pay, is the "right and duty ... to defend any suit against the Insured." ...

Not only does the carrier have a right to defend but it has a corresponding duty to do so. This duty is rather broad in that the policy provides that the carrier has a duty to defend even though the suit is "groundless, false or fraudulent." That is to say, the duty to defend is greater than the obligation to pay. There is no requirement *817 that there must be a reasonable likelihood of recovery or even a good faith claim. It is possible by reason of the language of this policy that the company may be obligated to defend a groundless, false, or fraudulent claim though it may not ultimately be required to make any payment.

(Emphasis in original.) Id. at 187-88, 313 N.W.2d at 638.

We again noted in John Markel Ford v. Auto-Owners Ins. Co., 249 Neb. 286, 295, 543 N.W.2d 173, 179 (1996), that an insurer has a duty to defend its insured whenever the insurer ascertains facts which give rise to the potential for liability under the policy, and further wrote:

More specifically, as suggested by one writer, under [Allstate Ins. Co. v.] Novak, an insurer is obligated to defend if (1) the allegations of the complaint, if true, would obligate the insurer to indemnify, or (2) a reasonable investigation of the actual facts by the insurer would or does disclose facts that would obligate the insurer to indemnify.

As observed in Allied Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 243 Neb. 779, 784, 502 N.W.2d 484, 487 (1993):

[T]he nature of the duty to defend is defined by the insurance policy as a contract....

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Related

John Markel Ford, Inc. v. Auto-Owners Insurance
543 N.W.2d 173 (Nebraska Supreme Court, 1996)
Central Nebraska Broadcasting Co. v. Heartland Radio, Inc.
560 N.W.2d 770 (Nebraska Supreme Court, 1997)
FARM BUR. INS. CO. OF NEB. v. Bierschenk
548 N.W.2d 322 (Nebraska Supreme Court, 1996)
Hartford Accident & Indemnity Co. v. Olson Bros., Inc.
188 N.W.2d 699 (Nebraska Supreme Court, 1971)
Allstate Insurance v. Novak
313 N.W.2d 636 (Nebraska Supreme Court, 1981)
Thos v. Employers Mutual Casualty Co.
338 N.W.2d 784 (Nebraska Supreme Court, 1983)
Allied Mutual Insurance v. State Farm Mutual Automobile Insurance
502 N.W.2d 484 (Nebraska Supreme Court, 1993)
Mapes Industries, Inc. v. United States Fidelity & Guaranty Co.
560 N.W.2d 814 (Nebraska Supreme Court, 1997)

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Bluebook (online)
560 N.W.2d 814, 252 Neb. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mapes-indus-v-us-fidelity-and-guar-neb-1997.