Nationwide Mutual Insurance v. Travelers Indemnity Co.

41 Pa. D. & C.3d 386, 1985 Pa. Dist. & Cnty. Dec. LEXIS 90
CourtPennsylvania Court of Common Pleas, Chester County
DecidedOctober 31, 1985
Docketno. 324
StatusPublished

This text of 41 Pa. D. & C.3d 386 (Nationwide Mutual Insurance v. Travelers Indemnity Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mutual Insurance v. Travelers Indemnity Co., 41 Pa. D. & C.3d 386, 1985 Pa. Dist. & Cnty. Dec. LEXIS 90 (Pa. Super. Ct. 1985).

Opinion

SMITH, J.,

We heard argument on this case on September 16, 1985. Petitioners seek attorney’s fees and reimbursement for $3,800 paid in a property-damages settlement. The questions presented are: (1) Whether respondent Travelers Indemnity Company had a duty to defend petitioner Richard Irwin (where he had been given permission to drive the car insured by Travelers) in the two separate lawsuits brought against Irwin; (2) If Travelers did have such a duty, is it liable for attorney’s fees petitioners here incurred bringing this litigation; and (3) Was Richard Irwin within the scope of his permission, under the omnibus clause of Traveler’s insurance policy when he made a 30-mile detour while driving to a local gas station, so that petitioners are entitled to reimbursement on the claim for property damage?

FINDINGS OF FACT

1. Petitioner Nationwide Mutual Insurance Company (hereinafter Nationwide) is an insurance [388]*388company duly organized under the laws of the State of Ohio, with its principal place of business in Harrisburg, Pa.

2. Petitioner Richard Irwin (Irwin) is an adult individual whose last known place of residence is West Chester, Pa.

3. Respondent Travelers Indemnity Company (Travelers) is an insurance company duly organized under the laws of the State of Connecticut, with a principal place of business in Reading, Pa.

4. Respondent Anthony McDonald (McDonald) is an adult individual and resident of Chester County, Pa., with a mailing address of P.O. Box 22, Coatesville, Pa.

5. Respondent Clair A. Sawmiller (Sawmiller) is an adult individual and resident of York County, Pa., with a mailing address of R.D. no. 5, P.O. Box 122, Red Lion, Pa.

6. Respondent Red Lion Bus Company (Red Lion) is a business corporation duly organized under the laws of the Commonwealth of Pennsylvania with a principal place of business in Red Lion, Pa.

7. Pursuant to §7540 of the Declaratory Judgments Act, 42 Pa.C.S. §7531 et seq., the above-named respondents have been made parties to the instant action because they have or claim an interest which would be affected by any declaration made by this court.

8. On August 5, 1978, at or about 10:15 p.m., a 1971 Javelin automobile owned by McDonald was involved in a motor vehicle accident with a bus owned by Red Lion at the intersection óf Routes 41 and 372, Atglen, Chester County, Pa.

9. At the time of the accident in question, the vehicle owned by McDonald, a Travelers insured, was being operated by Irwin, a Nationwide insured, and [389]*389the bus owned by Red Lion Bus Company was being operated by Sawmiller.

10. Prior to the accident, on August 5, 1978, McDonald gave Irwin permission to operate his vehicle for the purpose of taking it to a Coatesville service station.

11. Irwin thereafter took possession and control of the vehicle at McDonald’s residence in Coatesville, Cain Township, Chester County, Pa., and drove away with McDonald’s permission. Irwin continued to maintain possession and control of McDonald’s vehicle until the time of the accident in question.

12. At or around 10:00 p.m. on August 5, 1978, McDonald received a telephone call from Irwin, wherein Irwin advised McDonald that he was in Atglen, Chester County, Pa.

13. During the course of the conversation between McDonald and Irwin, McDonald told Irwin to bring the vehicle right back to him in Coatesville.

14. Following the conversation, the McDonald vehicle was involved in the accident with the bus operated by Sawmiller, as described above.

15. Prior to this accident, McDonald had permitted Irwin to use the McDonald vehicle on many occasions.

16. A claim for personal injuries was,filed by Sawmiller against Irwin and McDonald at no. 42 August term 1980, Chester County, Pa.

17. A claim for property damage was filed by Red Lion. Bus Company against Irwin at no. 16 August term 1980, Chester County, Pa.

18. Nationwide undertook the defense of Irwin, but asked Travelers to assume the defense of Irwin in both actions described above. Travelers refused to assume Irwin’s defense, claiming non-permissive use.

[390]*39019. Nationwide incurred attorney’s fees, costs and expenses in the total amount of $5,057.31 for both actions.

20. Sawmiller settled her personal-injury claim by accepting the policy limits on both the Nationwide and Travelers policies and the case has been marked settled as of September 27, 1982.

21. Red Lion settled its claim for property damage for the sum of $7,683.56. Nationwide, on behalf of Irwin, contributed $3,799.28 toward settlement. That case was marked settled on December 8, 1982.

22. Nationwide and Travelers agreed, prior to settlement of both actions, that the contributions to settlement in no way constituted admissions of coverage responsibility in either or both actions, nor did such contribution act as a' waiver of any rights, obligations or claims either carrier might assert in the instant declaratory judgment action.

23. Nationwide has incurred attorney’s fees, costs and expenses in the amount of $800 in bringing this action.

DISCUSSION

I. Travelers’ Duty to Defend

The first issue presented is whether Travelers should have assumed the defense of petitioner Richard Irwin in the action for personal injuries and property damage.

In the usual automobile insurance policy, the insurer agrees to defend the insured against any suits arising under the policy, even if such suit is groundless, false or fraudulent. Since the insurer thus agrees to reheve the insured of the burden of defending even those suits which have no basis in fact, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Consequent[391]*391ly, there may be an obligation to defend although there is no obligation to indemnify. A refusal without good cause to defend breaches this obligation and gives rise to a cause of action regardless of the good faith of the insurer. Gedeon v. State Farm Mutual Insurance Co., 410 Pa. 55, 188 A.2d 320 (1963); Seaboard Industries, Inc. v. Monaco, 258 Pa. Super. 170, 392 A.2d 738 (1978).

In Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959), plaintiff, an attorney, sued his malpractice insurance carrier for failing to defend him in a suit brought by another attorney. The original suit was based on Cadwallader’s mishandling of funds in his client’s escrow account. The insurance carrier refused to defend, saying that intentional misconduct was not covered by the policy. The Pennsylvania Supreme Court disagreed, as the violation or the escrow agreement could have been based on negligence, rather than intentional misconduct: When “the complaint comprehends an injury which may be within the policy . . ., the promise to defend includes it.” Cadwallader, supra, at 590, 152 A.2d at 488.

In Seaboard Industries, Inc. v.

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41 Pa. D. & C.3d 386, 1985 Pa. Dist. & Cnty. Dec. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-insurance-v-travelers-indemnity-co-pactcomplcheste-1985.