Abbie Uriguen Oldsmobile Buick, Inc. v. United States Fire Insurance
511 P.2d 783
Idaho
1973
Check Treatment

*1 damages remedy damages is liable in at law in As to whether Paul because Watkins, speedy, complete. plain, adequate, court concluded and district genuine that there remained unresolved Rutherford, Here, inas Suchan v. fact; issue material court therefore supra, seriously contended cannot “[i]t summary- for the Watkins’ motion remedy that the via at law judgment against and mo- Paul the latter’s complete adequate, speedy, plain, summary judgment against tion for 303, in this P.2d at 443. case.” Id. former. plain that the The evidence fails show respective briefs, appellants (the In their any par need tiffs the land respondent Watkins) both ticular, purpose, is one of the unique which deny- tend court that district erred in per granting specific main reasons for summary ing each of their motions formance; plaintiffs’ contrary, However, judgment against the other. ob they that seek to evidence shows summary judg- denial of these motions they resell it only tain the land so that properly ment is not us consid- before circumstances, profit. these Under appeal eration. notice of indicates bring performance specific would only granting summary the order plaintiffs greater would no relief than judgment in favor Richardsons has profit. lost in the amount of their appealed. possess Therefore, if the even Watkins regard refusal, granting to the right order of first an enforceable summary judgment, well settled in fide if the Richardsons were not bona even notice, Idaho that this Court must construe the ev purchasers for this value without presented idence proper specific to the district court liber performance, not a case for ally in party favor of opposing the or properly and that relief was denied. der and accord him the benefit infer of all Judgment respond- Costs affirmed. ences might reasonably which be drawn. ents. Straley v. Corp., Idaho Nuclear 94 Idaho 917, Rawlings 500 P.2d v. SHEPARD, McQUADE, and Mc Layne 496, Pump & Bowler 93 Idaho FADDEN, SCOGGIN, JJ., District 465 P.2d 107 (1970). Judge, concur.

The Watkins contend that the district concluding

court erred in have an

adequate remedy at law in ascertainable issue, this rely On both sides

upon Rutherford, v. Suchan (1966), P.2d 783 Court stated that: BUICK, ABBIE URIGUEN OLDSMOBILE basic, underlying “The equity rule is that INC., corporation, Plaintiff-Appellant, will not aggrieved intervene where the party plain, has a speedy, adequate, and UNITED STATES FIRE INSURANCE complete remedy However, at law. COMPANY, Defendant-Respondent. involving case of contracts the sale No. 11226. land, or lease of courts assume Supreme Court of Idaho. aggrieved party an ad- does not have July equate remedy at law and is entitled

specific performance.” case,

In that the Court went on to decide present- under the circumstances there

ed real property vendor did not have right specific performance obtain *2 Beeks, Kramer, Plankey, M. Beeks, Falls, appellant. Twin &

Smith Rock, Moffatt, Thomas, R. B. Barrett Boise, respondent. Blanton, & SHEPARD, Justice.

This case results an insurance com- pany’s coverage denial of brought The insured seeking attorneys recovery action fees pro- company’s a result incurred as spective punitive damage denial of Summary judgment claim. was entered company. favor of the reverse. question presented The first herein is obligated, an is whether policy, under a blanket automobile provide coverage punitive damage arising claims out acci- of an automobile dent; whether, conversely, public policy precludes coverage. The Idaho company’s pro- second issue is whether spective pu- denial of damage nitive breach claim was insurance contract entitled the sured retain his counsel and there- after fees. recover George Green, May On 1970 one Jr. driving was an automobile Abbie owned Oldsmobile, Uriguen Uriguen was Inc. Joe passenger in the The automobile car. in an in which was involved accident two persons severely injured. were brought injured suits Those Green, Uriguen, doing business as &J Joe Sales, Uriguen U Auto and Abbie Oldsmo- bile, alleging operating Inc. that Green was negligent, “in heedless automobile under the influ- reckless manner while liquor”; ence Green intoxicating per- driving was the automobile with Uriguen Corporation; mission of the Abbie Uriguen Corporation had “full that the knowledge the defendant fact George driving Green, Jr. liquor intoxicating at the time influence permission said auto- given he drive mobile.” acci- relatioiiship to this Uriguen’s Joe least, is obscure, he since say dent we will County, is to inform Cassia “This alleged to be a resident of client, your defend diligently operating an sales tinue automobile punitive damages are but, City Burley the event in Cassia business in the necessary Mr. awarded, Oldsmobile, will County, while Abbie his own pay those corporation Inc., alleged with its to be a *3 paid by be Jails, they will not pocket since principal place of business Twin carrier. alleged liability insurance Uriguen is to be an Idaho. not Joe only passen- of owner automobile but every way possi- attempted in have “We ger; however, alleged it is that the auto- elim- ability to of our to the best ble and being pur- mobile was used for “business case element from this inate poses” Uriguen. point at this damages, Joe but Uri- If doing Mr. note so. We that law unsuccessful two suits injured persons employ you at his guen arose out of desires to substantial in- jury this connection to them to defend case expense because the record reveals items, you are punitive damage that $39,500. suits law were settled with the for you assist ambiguous record to do so and we will regard- somewhat invited ing possible.” every way punitive amount the claim for damages actions; asserted in those it is ei- Later, for Fire wrote counsel U. S. $50,000 ther $150,000. or Corporation: Uriguen counsel for Uriguen Corporation tendered the de- telephone conversation to our “Pursuant pf fense suits two to its liability insur- herewith today, you enclosed will find carrier, ance defendant-respondent U. S. August 6th copy of a letter dated Fire Insurance Inc. U. S. Fire’s attor- today 'from received which we have ney wrote Corporation that while plaintiff in above matter. for counsel U. provide S. Fire would a full defense to the offer of settlement of “You will note the two law suits it would not any cover damages $100,000 special general and punitive awards of damages. The letter $50,000 are punitive We states: forwarding com- copy to “This letter is written you to inform pany. plaintiffs in the event the are successful thoughts on best you any “If how in recovering punitive damages against point, this to case from we conduct the Abbie Buick, Inc., Oldsmobile happy you discuss with would be to corporation, damages such will not mutually convenient time.” paid be by your liability insurance car- still, Later counsel for S. Fire U. wrote rier the reason against pub- that it is Uriguen Corporation: counsel for lic for an insured to obtain cover- age type for this damage. You are appear plaintiffs “It are mak- would urged employ counsel therefore ing attempt nego- it more difficult to

your choice and at your own expense to tiate in this Enclosed settlement case. protect your interests with respect copies herewith are to Amend Motion plaintiffs’ claim damages in Complaint Hear- Amended Notice each (Emphasis case.” supplied) plaintiffs ing, all of are which indicates attempting obtain an Order from Uriguen thereafter legal retained its own prayer Court to increase the guard counsel to regarding interests $50,000.00 $150,000.00. punitive damage Correspondence claims. exchanged between you representing Abbie Uri- U. S. “Since Fire and Uriguen Inc., Corporation. Buick, guen A motion individual- Oldsmobile to dismiss and strike allegations case, ly, thought you in this should be we complaint relating immediately of this Motion advised wrote; denied. Counsel for it, U. Fire S. but intend to resist Amend. We Coverage bodily repeatedly and Mr. advised C. or

we have client, Coverage property damage D. insurance Uriguen our Uriguen, carrier Mr. applies, caused any pay award arising cannot an occurrence and out of plaintiff such ages maintenance, obtains use, in the event ownership, includ- award, leads us since our research ing loading unloading, an auto- ” by in- payment that such the conclusion mobile . . . pub- companies surance would policy provision note is iden- policy.” lic policy provisions in tical with cases which we will discuss herein. This case focuses both suits in Novem- U. Fire settled S. prospective on U. S. Fire’s denial of spe- ber of 1971. That settlement did punitive damage of a award. We any allocation between cifically set forth Uriguen’s consider first assertion that the merely re- punitive damages but actual or *4 adopting trial in court erred U. Fire’s S. from all all defendants “of and leased that forbids insur- contention claims, demands, of ac- actions or causes punitive damage ance awards. tion, costs, judgments, and un- both known undersigned question impression or in This of first known which of, any only in dealing or There are cases hereafter have on account Idaho. few way growing instant action [*] [*] [*] fy Corporation seeking of a certain accident with this to recover then brought its attor- and the courts have punitive damages. garding public policy in other on sharply insuring jurisdictions divided re- against Fire vi- neys theory on the that U. S. fees Idaho follows the view prospectively olated I.C. 41-1839 when § public purpose that behind any liability any award punish is both to deter. damages.1 The might made for Stolworthy, Cox v. 496 P.2d summary judgment district entered court Clark, ; Dodge, 682 (1972) Boise Inc. v. 92 that I.C. grounds S. Fire on the U. Jolley Idaho (1969); 453 P.2d 551 Uriguen was apply; not that 41-1839 did Puregro 94 939 any obliged addi- not in sense to retain note, however, that none of counsel, and, legal tional entire applicable such cases are to the situation at obligation issue of Fire’s to cover U. S. bar since all based on deliberate and were damage by the claims was mooted intentional acts the tortfeasor. For ex against suits Uri- settlement the two “deliberate, ample Jolley in acts were guen. wilful, malicious and intentional and harassing.” purpose At of the accident Cor- the time sole poli- poration by a Fire was covered U. S. authority punitive damage There is cy containing following pertinent pro- by automobile awards are covered vision : example, Appleman, in For 7 insurance. Practice, 4312 (1972 Insurance Law and § pay on behalf of

“The will Supp.) it is stated: insured all sums which the insured shall “In a recent case the court concluded obligated pay legally become as applicable state law an award that under ages because of attorney justly un- thereto the amount due Allowance of entitled I.C. 41-1839. contract, Any policy, (1) certificate or in der such fees suits insurers. — brought any issuing any policy, in action thereafter certificate or shall insurer any insurance, surety, guaranty court or insurer contract of recovery indemnity terms of the under the state for kind or nature whatso pay contract, policy, period such ever, thir certificate which shall fail for adjudge ty days proof (30) the court shall amount as has been further after of loss attorney’s provided policy, ac- fees cer reasonable furnished as in such person contract, pay tion. tificate or

505 ment, Damages and Their Possi- punitive damages against an insurer Punitive Application Accident is submitted ble Automobile improper. would be It policy, Litigation, (1960); 46 1036 public Va.L.Rev. this extension of rule of Liability Note, Insurance and intentionally Automobile originally limited to acts caused, Temple L.Q. 459 Damages, the cit- Punitive is unsound. The facts of Gonsoulin, Is award of ed case that defendant’s conduct an indicate D.J. present Damages an not He had Punitive Covered Under wilful. no plaintiff. Comprehensive Liability injure act tent Had his Automobile wilful, Policy?, 433 (1968). that he intended Southwestern sense L.J. plaintiff, the insurer would urges adoption philoso S. Fire U. completely of liabili- have been absolved phy expressed by Judge in North Wisdom ty. It strangely seems inconsistent McNulty, western Nat. Cas. Co. v. F. insurer, breath, an in one liabil- admit Corpora 1962). Uriguen 2d (5th Cir. ity compensatory damages, then tion, hand, urges adopt us the other deny liability part for that of an expressed by the view the Tennessee court award claimed attributable to reckless or Lazenby v. Universal Underwriters Ins. Appleman’s argu- wanton conduct. Mr. 1 (1964). Tenn. 383 S.W.2d apply equal ments force to Judge McNulty, In Wisdom stated: event court should “ appears . . It to us . there aid an insurer which fails to exclude especially strong rea- punitive damages. *5 Surely allowing socially sons for not irresponsi- there nothing insuring in the clause escape ble automobile drivers to the ele- that would forewarn an insured that punishment personal of punitive ment such was to party.” be the intent of the damages when guilty are of reckless Likewise in 15 2d, on Couch Insurance § slaughter or maiming highway. on the (1966), 56.27 it is stated: say, society imposes It is no to answer criminal wrongdoers; sanctions to deter “Recovery under liability pol- automobile enough offender, that it is when civil punitive icies for exemplary or damages insurance, through pays he is ad- what awarded the insured gener- judged to A owe. criminal ally conviction been sustained at least in the ab- payment and may to the fine state injuries sence intentionally inflicted society be atonement by for the offender. the insured. On this basis has But it not have a sufficient effect been held that damages recovered by the on the conduct of others to make injured the party against the insured which public policy in favor of part are compensatory part pu- and * * * ages useful and effective. We nitive are imposed liabilities by the law sympathetic are with the innocent victim for damages within meaning the here; perhaps there thing is no such liability policy, automobile whether money damages making him But whole. were awarded on the basis receiving noncompensato- interest gross negligence and not of intention- ry damages compared is small with the injuries.” al public lessening interest in the toll of in- See Am.Jur.2d, also: 7 Automobile In- jury highways; and death on the 196,p. surance § thing there is such a aas state However, contrary the rule has also punish by wrong- making deter the support found from the commentators. pay.” doer 307 F.2d at 441-442 (1962). Note, See: Coverage Insurance and the Judge special Gewin filed a Punitive concurrence Award in the Automobile Acci- in McNulty stating: dent Suit, 19 U.Pitt.L.Rev. 144 Note, Exemplary Damages in the Law of “All us high are concerned the Torts, 70 Harv.L.Rev. 517 (1957); Com- personal injuries death toll and occur Tennessee, Idaho, supra. like follows I am highways, hut some

ring on the public purpose that the in the view prohibition of skeptical what punitive damages punish behind is both liability for surance Lazenby court stated: ex to deter. accomplish the results damages will * ** If by majority. pected accept knowledge, as common “We by such stat penalties provided criminal injuries highways fact on our death and seri wrongdoers, I utes fail deter very problem and and streets serious closing market ously doubt that great is a concern. matter so. As will do insurance accept, further as common knowl- We fact, my judgment it is matter drivers, edge, irresponsible socially who F. opposite result will follow.” operation of motor their action and 2d at 444. vehicles, be liable for could great part prob- McNulty. two facets of point We, however, agree able to lem. are not attempting to First, court was the federal market, closing predict of Florida damages, payment time had not been Virginia which at necessarily ac- such drivers who would state courts. announced deterring complish result of them Secondly: State, in wrongful This their conduct. the suit oc- giving rise to “The accident regard proper operation of motor to the Smith, a drunken curred Florida. vehicles, many crim- great has a detailed driver, traveling eighty an hour miles sanctions, apparently inal faster, weaving from side to side highways slaughter on our deterred this pass the automobile the road tried say closing of and streets. Then McNulty plaintiff was driv- Edward market, payment of in the ing. attempt it was He made where punitive damages, to deter would act impossible pass completely lost he opinion guilty in our drivers would smashed control of his car. car Smith’s speculation. tain some element *6 McNulty’s into the of car. Without rear aid, language in the “Second. The the stopping to fled render Smith' bar, is similar policy in at which the case scene of the accident. He was arrested policies, has liability many types of to highway twelve miles down the when courts, by as a mat- most been construed gas.” car ran F.2d at 433. out of 307 language interpretation the of ter of of theory support McNulty In See: compensatory and policy, to cover both Tenery, 96 Universal Indem. Ins. Co. v. most courts damages. Since 10, (1934); Colo. Crull v. 776 language in so construed this Gleb, (Mo.App.1964); Nich- 382 S.W.2d 17 hold- policy, average policy we think the Co., olson & 177 v. American Fire Cas. expect language would reading er this Surety (Fla.App.1965); So.2d 52 American claims, not inten- protected all Gold, (10th 1966); Co. v. F.2d 523 Cir. 375 supplied) tionally (Emphasis inflicted.” 343; Annotation 20 A.L.R.3d LoRocco v. 383 at 5. S.W.2d Co., N.J.Super. N. Mfrs. Indem. 82 Ins. J. 323, Lis- (1964); A.2d 591 Esmond 197 v. is theory Lazenby reflect- case The of cio, 200, Pa.Super. 793 209 224 A.2d v. Alabama Employers in Co. ed Ins. Maryland (1966). See also: Tedesco v. 551, (1937); Brock, 671 233 172 So. Ala. 533, Co., Cas. A.2d 357 127 18 Conn. 296, Baker, Ky. Maryland 304 Co. v. Cas. in (1941); Fogelman, dissent of South- J. Carroway (1947); 757 S.W.2d Daniel, 246 ern Farm Cas. Ins. Co. v. Bur. 200, 908 245 S.E.2d Johnson, S.C. 139 849, Ark. (1969). 440 S.W.2d 582 Farmers Mut. & (1965); Threshermen Thornton, (4th 244 F.2d 823 is Cas. Co. v. contrary McNulty leading The case Ins. Farm Bur. 1957); Southern Cas. Cir. Lazenby Ins. Underwriters v. Universal

507 wrong 849, injury. Daniel, which caused the What Ark. 440 S.W.2d 246 Co. v. injured party? Implicit ; & about Hartford Accident (1969) 582 Price v. 485, in- Co., P.2d 522 the entire field tort 108 Ariz. Indem. concept furnishing surance law is the (1972). protection in- some who are those pro point policy We jured. policy Public involved here as be herein make no distinction visions greater society extent. will do What punitive damages. Puni tween actual and daily injured with the thousands are who specifically excluded damages are and to some whom pro policy language. Under are at awarded.” 307 F.2d policy promises vision turn now to a consideration of pay all behalf the insured sums any whether U. S. Fire’s refusal to cover obligated legally insured shall.be punitive damages award of constituted pay as caused the use of breach of contract. any automobile. The law clear Idaho question same Motor was treated Boise policies that insurance are to be construed Co., Mercury Car Co. Paul v. St. Indem. liberally recovery. most in favor of 438, (1941). Idaho 112 P.2d 1011 Inc., Gardner, Shields v. Hiram C. 92 Ida that case an insurance carrier denied had policies ho 444 P.2d 38 Since policy provided coverage its in- by companies written arms without sured damages arising out of an auto- length bargaining parties between the all mobile accident since the automobile ambiguities are resolved favor the in person was driven under 16 Stephens sured. Hampshire v. New Ins. years Motor, age. In Boise like the (1968); 447 P.2d 14 bar, correspondence case exchanged Scharbach v. Continental Cas. 83 Ida although which indicated that insur- ho P.2d 826 Rollefson v. ance carrier had Brotherhood, Lutheran would defend under “reservation” P.2d 758 (1943). Clearly any public absent right sured was tendered “the associate policy to contrary, controversy this your attorney own with me the defense must be resolved in favor of the insured. case, however, your pay Insofar policy as is concerned we attorney charge.” he shall fee as reject McNulty adopt “ Lazenby ap- * * * And in this suit the St. proach. Judge Gewin stated in McNulty: Indem. Co. will assume no any ap- the terms of said nor will “The borderline between wilful and wan- peal be made from dis- decision injury ton result trict court.” simple negligence is often a hairline dis- *7 gains tinction. A little solace sufferer attorneys Motor Boise retained its own unpredictable from the doubtful and un- and thereafter its insurance carrier settled certainty judges juries and as litigation. brought the The insured action place undertake to the conduct the compel payment attorneys of his fees. wrongdoer in categories wilful, the in- appeal On the Court stated: tentional, wanton, gross, reckless oth- contract, value, “The if categories er of negligence. Those com- required unequivocal definite and de- panies who do not pro- wish to sell such fense, else continued lack of definite may tection product withdraw their from might committal the insured have * * the market tolled into a cul-de-sac. This continued question the ers of “It is [******] point of also the from one direction quite apparent view of the nature of the looking only my —from at this broth- alleged spondent’s evasion, therefore, on the ****** the suit in the own as complaint, required by correspondence not a ‘defense the face of policy.’ was, re- as ” ap- tion On the insurance carrier. company’s and contention attitude “The * * peal Supreme the Ohio stated: *, and would Court though adroit clever the in- from at absolved it "Accordingly, respect in the attempt- incorrectly expense, and sured’s in situation that confronted the insurer burden place upon the insured the ed to defending the determining its course choice, if insured making since potential Hopper rather suit related to litigation the entirely over taken had than ultimate for indemnifica- The company might been freed. tion. times, though legitimately at all insured . * * * * * * attempting to com- protecting itself was making the interest of “Thus defense up con- pel to its company to live insurer conflict with the came into tract, option inter- gave it no The insurer interest of the insured. re- of its minably straddle any liability sought to to indemni- avoid sponsibility. fy damages by insured for recoverable ****** nonliability, giving notice claimed employ viting the counsel of insured to go forward “Respondent elected to protection having its own and after choice its own Heard suit defense allowing participate in the case them appellant would not consent notice by attempting and time to respondent’s right with- same reservation perform (insurer’s) its conceded contrac- draw, of such assertion its continued obligation by requiring tual its defend right of withdrawal thereafter a* keep control the de- and cre- own counsel to breach of its insurance contract at all hazard, fense times. protect itself ated employ- which, appellant justified result, “As a was confronted insured ing attorneys. paid A fee justified with a it em- hazard which against re- properly chargeable is thus protection ploying its own counsel its spondent.” (citations omitted) 62 —protection plainly indicated the insurer 449, 112 1011at 1016. 447 at P.2d give. it insured met the would not counsel by employing hazardous situation authority Boise Motor was cited protest notifying the insurer Socony-Vacuum Oil Co. v. decision ** expense it must *. bear the Continental 144 Ohio St. Cas. an insurance N.E.2d Therein by the created ac- “As the hazard was liability coverage for an ac carrier in a placing itself tion of insurer furnish a cident but indicated that would position and did in which it could not action and defense of the recommended fully perform its completely Socony-Vacuum coun defense, secure obligation make tractual correspondence sel. car reasonable insured entitled to recover “Undoubtedly, rier terms stated: under the fees, attorney expenses proper insurance, of the contract of we owe ground its con- that insurer breached duty defending you, but under Co. tract. Boise Motor Car St. there is circumstances it be that since Mercury Indem. possibility protection of a failure of P.2d 1011." forth, you *8 set reasons hereinbefore 59 N.E.2d at 204-205. your may desire to associate us in de Aetna also: Lumber Co. v. See Coast personal your fense counsel." Co., P. 185 22 125 Life Ins. Pendlebury Cas. & Socony-Vacuum employed its v. Western Thereafter Sur., suit, Co., 456, 406 129 P.2d attorneys, 89 Idaho defended Law and Appleman, Socony-Vacu- (1965); 7A Insurance Socony-Vacuum prevailed. Practice, (1962). 4691 sought attorneys in an ac- um fees § then its BAKES, McQUADE, In the instant case the insurance carrier McFADDEN and JJ., created a Uri- substantial hazard to Abbie concur. guen personal Oldsmobile Inc. When DONALDSON, (concur- Chief injury against it actions were filed Abbie Justice ring specially).

Uriguen potential liability faced $150,000 punitive damages arising for out If, opinion as the seems to' indi- very person- causing an accident serious cate, punitive damages is the function of injuries. already al We have here- decided deter,” punish “to and to I would dif- coverage that the insurance afforded for ficulty pub- concurring with the view punitive damages. The insurance carrier policy preclude recovery lic does not suggested Uriguen employ its own against liability insurance counsel to defend its interest in- which the punitive damages against the in- awarded surance wrongfully carrier refused to cov- However, sured. most recent Court’s policy. er impractical It is both decision, discussing pu- purposes illogical to look back in as did the time damages, nitive states that feel that “we judge say trial McNulty that since the the courts in these cases should be civil necessity case was settled there was no primarily by purpose motivated of deter- employing counsel. rence the defendant and others [of engaging in similar conduct the future] In the instant case U. Fire S. purpose punishment. In obligation breached its contractual words, exemplary other the assessment of “ * * * prompted by should be the court’s defend suit jury’s assure, desire to to the extent seeking damages against insured possible monetary imposition via the of a sured on bodily account of penalty, that similar conduct does not oc- property damage.” se, Punishment, per cur in the future. when it notified that it would not Jolley should be left criminal law.” cover award of damages. Co., 702, 708-709, Puregro v. 94 Idaho Such refusal constituted breach of the (1972). addition, P.2d our lat- insurance attorneys contract and fees are a recognize est cases also a collateral proper damage arising element of for awarding reason such breach. Boise Motor Co. St. Paul ages: bring encourage plaintiffs suit Mercury Co., Indem. supra; Pendlebury v. engaged defendants who have Socony- Western Cas. & supra; Sur. 708, 496 antisocial Id. at P.2d conduct. Vacuum Oil Co. v. Continental Cas. 945; Stolworthy, Cox v. supra. Uriguen is entitled to recover the P.2d attorneys reasonable fees occasioned U. coverage insurance While S. Fire’s breach of contract and further predomi- may tend to defeat the allowed its fees incurred deterring public policy purpose nant pursuing present action, both trial conduct, unequivocably similar antisocial appeal. and on promotes purpose the collateral of encour- judgment of the district court is re- aging plaintiffs bring aginst defend- suit versed and remanded with instructions to ants who such conduct engaged determine the Uriguen’s amount of attor- and who are covered under insur- neys fees in both this action at trial and on policies ance fail to exclude appeal and the initial defense of the damages. circumstances, I Under these am damage judgment claims and enter pre- unable to conclude that accordingly. appel- Costs pu- cludes lant. nitive *9 question is deter- Once insured, I feel that of the mined favor opinion fol- remainder determination, and I concur from that

lows reasoning expressed therein. corpora-

READY-TO-POUR, INC., an Idaho Plaintiff-Respondent, tion, Inspector Building McCOY, as

Leonard B. City Ketchum, al., et Defend- ants-Appellants, Party Murphy al., Third Intervenors et

W. E. Appellants.

No.

Supreme of Idaho. Court

July 3, 1973.