Preferred Risk Insurance v. Gill

507 N.E.2d 1118, 30 Ohio St. 3d 108, 30 Ohio B. 424, 1987 Ohio LEXIS 274

• Court: Ohio Supreme Court
• Decided: May 20, 1987
• Docket: No. 86-882
• Status: Published

Opinions

Douglas, J.

The threshold question presented herein is whether the instant action is properly before this court. More specifically, we must determine whether an insurance company may bring a declaratory judgment action to adjudicate its duty to defend or indemnify its insured in an action brought against the insured by a third party. In resolving this question, we are called upon to reexamine this court’s holding in Transamerica Ins. Co. v. Taylor (1986), 28 Ohio St. 3d 312, 28 OBR 381, 504 N.E. 2d 15.

Transamerica involved facts similar to those presented in the cause sub judice. In Transamerica, the insured shot and killed a man and eventually pleaded guilty to,'and was convicted of, involuntary manslaughter. The victim’s widow brought an action in wrongful death alleging that the insured had negligently caused the death of her husband. The insurers instituted a declaratory judgment action seeking a declaration of their obligation to defend the insured in the wrongful death suit and to indemnify him in the event of an adverse judgment. In a four to three decision, this court held that the insurers may not maintain such an action:

“Where the complaint in the underlying tort action against the insured alleges only negligence, a declaratory judgment action brought by the tortfeasor’s insurers seeking a declaration that their insured’s conduct was intentional rather than negligent, and is thus excluded from coverage, presents no justiciable controversy and may properly be dismissed for failure to state a claim upon which relief can be granted.” Id. at syllabus.

The Transamerica court reasoned that the insurers therein “seek to avoid their obligation to the insured via a declaratory judgment action asserting that the insured had acted intentionally rather than negligently. As this court noted in [State Farm Fire & Cas. Co. v.] Pildner [(1974), 40 Ohio St. 2d 101, 69 O.O. 2d 509, 321 N.E. 2d 600], this assertion is utterly premature, since the underlying tort claim against the insured alleged only negligence. Although the insurers are not obligated to provide coverage for intentionally inflicted injury, no such recovery is sought by the plaintiff in the wrongful death action. Thus, the complaint for declaratory judgment fails to state a claim upon which relief can be granted, since it presents no facts giving rise to a justiciable controversy. Pildner, supra, at 104. The insurers’ duty to defend is not a proper subject for a declaratory judgment action, and no question of intentional conduct has been raised in the underlying wrongful death suit.” Id. at 314, 28 OBR at 383-384, 504 N.E. 2d at 17.

The instant cause presents this court with an opportunity to reexamine the rule of law set forth in Transamerica. Upon considerable study and deliberation, we conclude that Transamerica cannot withstand objective scrutiny.

R.C. Chapter 2721, governing declaratory judgment actions, clearly contemplates the maintenance of such an action by an insurance company seeking a declaration of its rights and obligations under a contract of insurance. R.C. 2721.03 provides in pertinent part:

“Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. * * *” (Emphasis added.)

This statute plainly permits a party to a contract to bring a declaratory judgment action for purposes of obtaining a binding judicial interpretation of the agreement. The comment¹ to R.C. 2721.03 bolsters the conclusion that the statute was intended to apply to contracts of insurance:

“This section makes it possible for any person interested in any of the instruments specified or affected by any of the legislation mentioned, to have any question of construction or validity, and also * * * [his] rights determined. This covers a large field of possibilities, among which are disputes between lessor and lessee, mortgagor and mortgagee, questions concerning insurance policies, deeds of trust, disputes between a city and a street railway company, or any public utility, and a vast number of other disputes too numerous to mention.” (Emphasis added.)

Moreover, R.C. 2721.04 provides that “[a] contract may be construed by a declaratory judgment either before or after there has been a breach thereof.” The comment to that section states that “[a]ny doubt as to when an action may be brought to construe the provisions of a contract * * * is removed by this section. A court of record may construe the provisions of a contract before breach, as well as after breach.”

It cannot be disputed that the General Assembly intended the declaratory judgment action to be available to “[a]ny person interested” under a written contract of any nature for purposes of establishing rights and duties thereunder. Any limitation on the right of such persons, including corporations,² to bring such an action frustrates this legislative intent. Nowhere in R.C. Chapter 2721 is there any provision which narrows the broad right conferred by R.C. 2721.03. This court is not justified in creating its own limitations on that right in contravention of this clearly expressed legislative purpose. This is particularly true given the mandate embodied in R.C. 2721.13, which states that “[s]ections 2721.01 to 2721.15, inclusive, of the Revised Code are remedial, and shall be liberally construed and administered.”

Transamerica, supra, divests insurers of their statutory right to seek a declaratory judgment for reasons which are, in our view, unpersuasive. Consistent with our discussion, supra, we are persuaded that a declaratory judgment action is a proper vehicle for the resolution of contractual disputes between an insurer and its insured arising from a suit filed by a third party against the insured. In some cases, the insurer may be able to demonstrate that the allegations of the underlying complaint do not represent the true facts. Here, the killing which forms the basis for the underlying complaint resulted in a conviction of the insured for a crime of which intent is an essential element. Thus, the intentional nature of the act constituting the basis for the underlying tort action has been established by a court of law. In such a case, it is illogical and unfair to require the insurer to relinquish its statutory right to a preliminary declaratory judgment action and defend the insured regardless of the actual facts. We are also concerned that forcing the insurer to defend its insured under these circumstances places the insurer in an ethical dilemma. As aptly explained by the United States Fourth Circuit Court of Appeals in a case substantially similar to the instant cause:

“The facts and circumstances of this action, however, are such as to bring it within the exception set forth in the case oí Farm Bureau Mutual Automobile Ins. Co. v. Hammer, 177 F. 2d 793 (4th Cir. 1949) rather than the general rule. In that case this court held that where the insured’s own conduct took him outside the coverage of the policy, the insurer’s duty to defend does not exist if it is not possible for the insurer to defend the insured and at the same time to protect its own interests. To state the holding in terms of the instant case, the * * * [insurer] could not defend plaintiff-insured in the wrongful death suit and urge that the death was not intentional while at the same time contend there is no coverage under the policy because death was inflicted intentionally by the insured. There would be a conflict of interests on the part of the insurer that would be impossible to resolve if it were forced to defend [the] insured.” Stout v. Grain Dealers Mut. Ins. Co. (C.A. 4, 1962), 307 F. 2d 521, 524-525.

In the case at bar, permitting the insurer to bring a preliminary declaratory judgment action to determine its obligation to its insured, where the insured is a defendant in an underlying cause of action brought by a third party, may eliminate this ethical predicament by relieving the insurer of any duty to defend.

We hold, therefore, that an insurer may maintain a declaratory judgment action under R.C. Chapter 2721 for purposes of establishing its rights and obligations under a contract of insurance. The insurer, if proceeding in good faith, is entitled to bring such an action for purposes of adjudicating its duty to defend and/or indemnify its insured in a tort action brought by a third party, even where the underlying tort complaint alleges conduct within the coverage of the contract of insurance. In such an action, the insurer may proceed to demonstrate that the facts alleged in the underlying tort complaint differ from the actual facts ascertained by the insurer, and that the actual facts remove the insured’s conduct from coverage.³ As both Transamerica and Pildner,⁴ supra, are inconsistent with this determination, they are hereby overruled.⁵

Having concluded that the appellee insurer may maintain an action seeking a declaration of its duty to defend and/or indemnify its insured, we now turn to a determination of the merits of the instant cause.

The insurance policy at bar provides that coverage for personal liability of the insured does not extend to bodily injury or property damage “which is expected or intended by the insured * * Appellee urges that the intentional nature of the killing of Kerri Hintermeister has been established beyond cavil by proof of Gill’s plea of guilty to and subsequent conviction of aggravated murder. The death was therefore “expected or intended by the insured” and is excluded from coverage. Thus, appellee argues, the trial court correctly issued a declaratory judgment relieving appellee of any duty to defend the wrongful death claim or to indemnify Gill for any judgment obtained therein.

We find this argument compelling. In a case such as this one, where the conduct which prompted the underlying wrongful death suit is so indisputably outside coverage, we discern no basis for requiring the insurance company to defend or indemnify its insured simply because the underlying complaint alleges conduct within coverage. Such an approach would ignore patent realities for no overriding reason. To compel the insurer to defend regardless of the true facts, where, as here, the insurer has not promised to defend groundless, false or fraudulent claims, imposes an onerous burden for which the insurer did not bargain. Courts should not be expected to feign ignorance of a criminal conviction which clearly takes the conduct outside coverage. In cases such as this, this court will no longer unquestioningly elevate the allegations in the underlying tort complaint above all consideration of the true facts as established by the insurer unless the insurer has agreed to defend regardless of the true facts.

This is not a case where the insurer has promised in the insurance policy to defend any suit against the insured alleging injury within coverage, even if such suit is groundless, false or fraudulent. The policy at bar contains no such representation.⁶ On this basis, the instant cause is distinguishable from Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St. 3d 177, 9 OBR 463, 459 N.E. 2d 555, which held that the insurer has a duty to defend where the allegations of the underlying complaint state a claim potentially or arguably within coverage. Id. at syllabus. In Willoughby Hills, the insurance policy provided that the company would undertake the defense of any suit alleging injury or property damage within coverage, “ ‘even if any of the allegations of the suit are groundless, false or fraudulent * * ” Id. at 177, 9 OBR at 463, 459 N.E. 2d at 556.

A similar provision existed in analogous cases wherein we held that the insurer’s duty to defend depends solely on the allegations of the underlying complaint. See, e.g., Motorists Mutual v. Trainor (1973), 33 Ohio St. 2d 41, 42, 62 O.O. 2d 402, 403, 294 N.E. 2d 874, 876; Lessak v. Metropolitan Cas. Ins. Co. (1958), 168 Ohio St. 153, 157, 5 O.O. 2d 442, 445, 151 N.E. 2d 730, 734; Socony-Vacuum Oil Co. v. Continental Cas. Co. (1945), 144 Ohio St. 382, 384, 29 O.O. 563, 564, 59 N.E. 2d 199, 200; Bloom-Rosenblum-Kline Co. v. Union Indemnity Co. (1929), 121 Ohio St. 220, 222, 167 N.E. 884. Where the insurer represents to its insured that it will undertake the defense of any claim asserting injury -within coverage, even where the claim is false or fraudulent, the duty to defend may arise solely from the allegations of the underlying complaint, regardless of the true facts as they are known to the insurer. However, since the appellee herein has promised only to defend claims for bodily injury or property damage “to which this coverage applies,” the true facts are determinative of the duty to defend. VThere the true facts are such that the insured’s conduct was outside the coverage of the policy, the claim is not one “to which this coverage applies,” and the insurer has no obligation to defend the insured.

We hold, therefore, where- the insurer does not agree to defend groundless, false or fraudulent claims, an insurer’s duty to defend does not depend solely on the allegations of the underlying tort complaint. Absent such an agreement, the insurer has no duty to defend or indemnify its insured where the insurer demonstrates in good faith in the declaratory judgment action that the act of the insured was intentional and therefore outside the policy coverage.

In the instant cause, appellee demonstrated to the trial court that the conduct which was the subject of the wrongful death action was intentional, rather than negligent as alleged in the underlying complaint. This was established beyond dispute through evidence that Gill’s action in killing Kerri resulted in his criminal conviction for aggravated murder. An essential element of that crime is that the perpetrator intended to cause the death. See R.C. 2903.01(D). Kerri’s death was clearly “expected or intended by the insured” and therefore the policy does not provide coverage for whatever personal liability Gill may have. Since appellee did not agree in the insurance contract to defend Gill against any claim alleging facts within coverage, even if groundless, false or fraudulent, but only against claims “to which this coverage applies,” appellee has no duty to defend Gill in the underlying wrongful death claim. It follows that appellee has no obligation to indemnify Gill in the event of an adverse judgment, since the act was indisputably intentional and outside coverage. The trial court correctly granted summary judgment to appellee on the underlying wrongful death claim.

We reach the same conclusion regarding the underlying claim for serious emotional distress. Appellants alleged that Gill’s actions following the murder in concealing the body and then joining in searches for Kerri constituted negligent infliction of emotional distress. Appellants relied on certain testimony by a clinical psychologist to the effect that Gill suffered from a form of traumatic amnesia in the hours following the murder, arguing that such condition could have rendered Gill incapable of forming the requisite mental state to commit an intentional tort. Thus, appellants maintain, a genuine issue of fact remained as to whether Gill’s conduct after the murder was negligent rather than intentional.

We cannot agree. The behavior of the insured after the murder, even if he were operating under amnesia, had its origin in a clearly intentional course of conduct (i.e., the murder) and is so inextricably entwined in time and purpose with the intentional acts leading to the murder, and the murder itself, that it cannot fairly be said to be within coverage. The parties to the insurance agreement cannot be imagined to have contemplated that such conduct would be subject to coverage. This court is not prepared to impose on this insurer a duty to defend or indemnify against this conduct by this insured which was clearly not meant to be within the scope of agreed coverage.⁷

Therefore, in accordance with the foregoing, the judgment of the court of appeals is hereby affirmed to the extent that it relieved appellee of any duty to indemnify its insured on either the wrongful death or the emotional distress claim. The judgment of the court of appeals requiring appellee to provide a defense for its insured on both claims is hereby reversed. The judgment of the trial court is reinstated in all respects. Costs are taxed to appellee pursuant to App. R. 24.

Judgment accordingly.

Holmes, Wright and H. Brown, JJ., concur. Sweeney and Locher, JJ., dissent. Moyer, C.J., not participating.

1 The editorial comments to Page’s Ohio Revised Code Annotated, while not official, are instructive.

2 R.C. 2721.01 provide^:

“As used in sections 2721.01 to 2721.15, inclusive, of the Revised Code, ‘person’ means any person, partnership, joint-stock company, unincorporated association, society, municipal corporation, or other corporation. ” (Emphasis added.)

3 We are mindful, as insurers should be, of the insurer’s duty to act in good faith vis-a-vis its insured. See, e.g., Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St. 3d 272, 6 OBR 337, 452 N.E. 2d 1315, paragraph one of the syllabus.

4 We recognize that the conviction of the insured in Pildner came after a plea of not guilty, whereas in the case at bar, the insured’s conviction was entered pursuant to a plea of guilty to aggravated murder.

5 By overruling Transamerica, we intend to declare that the insurer in that case may proeeed'with a declaratory judgment action to determine its rights and obligations to its insured. We express no opinion on the merits of that action, including whether the insured’s conviction of involuntary manslaughter, without more, constitutes proof of an intentional act.

6 The pertinent portion of the insurance policy provides:

“If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we [the insurer] will:

<<* 4c 4c

“b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.” (Emphasis added.)

7 We note parenthetically that the court of appeals’ reasoning to the effect that the insured herein, if operating under amnesia, would not be legally liable for the consequences of his negligence is not in accordance with this court’s holding in Kuhn v. Zabotsky (1967), 9 Ohio St. 2d 129, 38 O.O. 2d 302, 224 N.E. 2d 137. There, at 133, 38 O.O. 2d at 305, 224 N.E. 2d at 140, we quoted with approval Section 283B of the Restatement of the Law 2d, Torts (1965) 16, which states that:

“Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.”