656 A.2d 779 | Md. | 1995
This appeal arises out of an action filed by Scottsdale Insurance Company (Scottsdale) against Chantel Associates (Chantel) seeking a declaration that Scottsdale had no duty to defend or indemnify Chantel in a tort action.
The original complaint alleged that “[djuring the time the infant [plaintiffs] resided in the [1224 West Lafayette Avenue] dwelling, the infant[s] ingested and consumed paint containing lead, and lead pigment thereby causing the infant [plaintiffs] to suffer the injuries, illness and infirmities hereinafter alleged.” Although the original complaint did not specify a date when the initial injuries occurred, it alleged that the plaintiffs
“From the beginning of the time that each child resided in the premises each was exposed to lead paint, lead chips and lead dust which were ingested in some manner by the children. Each, from the beginning of their residence was injured by this exposure, as the ingestion of lead began a process of cellular damage.” (Emphasis added).
During the period of time relevant to this appeal, four insurers provided liability insurance coverage to Chantel. Those insurers were Empire Indemnity Insurance Company (Empire), Mount Vernon Fire Insurance Company (Mount Vernon), Scottsdale, and Allstate Insurance Company (Allstate). Empire issued a general liability insurance policy to Chantel which provided coverage from April 1, 1984 through April 1, 1985. Mount Vernon issued a general liability insurance policy to Chantel which provided coverage from April 1, 1985 through March 12, 1986. Scottsdale issued two consecutive general liability insurance policies to Chantel which provided coverage from March 12, 1986 through March 12, 1988. Allstate issued a personal umbrella insurance policy to Chananie and Levitin on February 10, 1983 which was renewed annually through February 10, 1993. The Allstate personal umbrella policy provided “excess” liability coverage for certain “occurrences.”
Each of the general liability insurance policies issued to Chantel required the insurer to:
*137 “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury ... caused by an occurrence.... ”
The policies define “bodily injury” as:
“bodily injury, sickness or disease.... ”
The policies define an “occurrence” as:
“an accident, including continuous or repeated exposure to conditions, which results in bodily injury ... neither expected nor intended from the standpoint of the insured.”4
Upon receipt of the Epperson complaint, Chantel notified each insurer of the complaint filed against it and requested that each insurer provide it -with representation in the Epperson action. Mount Vernon and Allstate refused to defend Chantel. Scottsdale responded to Chantel’s request for representation by informing it that both its policies contained exclusions from coverage for injuries arising out of lead paint poisoning;
After undertaking Chantel’s defense in the Epperson action, Scottsdale filed a declaratory judgment action in the Circuit Court for Baltimore City against Chantel and the Epperson plaintiffs seeking a determination that it had no duty to defend or indemnify Chantel in the Epperson action based on its policies’ exclusions from coverage for injuries arising out of
“An injury is the alteration of structure or function of a cell, tissue or organ. Physical or chemical damage to the body which may be detectable only on a microscopic or subclinical level also constitute^] an injury.... [T]here are injuries to cells, tissues and organs caused by exposure to lead paint, lead paint chips, lead paint fumes, and/or lead paint dust, even though the injuries may not be noticeable to a harmed individual or diagnosable by a clinician until some later point in time.
Lead ... is especially harmful to the developing brain and nervous systems of fetuses____ There is probably no safe threshold at which lead has no effect.... [C]hildren under ... age three, whose brains are rapidly growing and developing are most vulnerable to damage by low levels of lead exposure.
* 'Jfi * * * #
There is general agreement that human infants and toddlers below the age of three years are at special risk because of in útero exposure.... Cumulative exposure has many central nervous system effects relatively immediately. These effects can accumulate and children show great variability in their response to different amounts of lead ingestion. Thus they may be suffering from the effects of cumulative low level lead exposure years before they are clinically observable.
*139 Thus, it is my opinion ... that exposure to lead produces both direct and indirect damage to the cells, tissues and organs of the body that begin immediately or shortly after exposure, notwithstanding the fact that the symptoms, especially at low levels of exposure, may not be apparent until much later, sometimes years after exposure.” (Emphasis added).
Empire, Mount Vernon, and Allstate also filed summary judgment motions, each seeking a declaration that it was under no duty to defend or indemnify Chantel in the Epperson action.
After a hearing on the motions for summary judgment, the circuit court (Rombro, J.) issued an order granting Scottsdale’s requested relief and declaring that Scottsdale’s “policy clearly had an exclusion for both indemnification and ... defense of any lead paint suit [a]nd that was ... clearly the understanding between the parties.” The court granted Empire’s motion for summary judgment and held that it had no duty to defend or indemnify Chantel in the Epperson action because “clearly, the policy expired on April 1, 1985.... Empire cannot possibly be responsible because ... [the Epperson plaintiffs] weren’t even living in the premises” when the policy was in effect. The court denied Mount Vernon’s motion for summary judgment and declared that Mount Vernon must defend Chantel “against all personal injury lead-related claims brought by any or all of the plaintiffs in the Epperson case.” The court further ordered Mount Vernon to indemnify Chantel for the “amount of any judgments rendered against [Chantel] ... in favor of any or all of the plaintiffs” in the Epperson action. The court granted Allstate’s motion for summary judgment in part on the ground that its homeowner’s policy did not provide coverage to Chantel in the Epperson action. The court denied the remainder of Allstate’s motion and held that its personal umbrella insurance policy provided coverage to Chantel in the Epperson action.
Mount Vernon appealed the circuit court’s judgment to the Court of Special Appeals which affirmed the circuit court’s judgment that Mount Vernon had a duty to defend Chantel in the Epperson action. The Court of Special Appeals held, however, that Mount Vernon’s duty to defend did not arise until the Epperson plaintiffs filed their further amendment by interlineation on July 9, 1992. See Mount Vernon Ins. v. Scottsdale Ins., 99 Md.App. 545, 559, 638 A.2d 1196, 1202 (1994). The court also held that Mount Vernon’s duty to defend Chantel extends only to claims brought on behalf of Napoleon and Donald because Quanna did not begin to reside at the Chantel property until after the Mount Vernon policy expired. Mount Vernon Ins., 99 Md.App. at 559, 638 A.2d at 1202-03. The intermediate appellate court reversed the circuit court’s judgment that Mount Vernon had a duty to indemnify Chantel under its insurance policy and held that “[n]o duty to indemnify arises until the Epperson plaintiffs have obtained a judgment against Chantel.” Mount Vernon Ins., 99 Md.App. at 561, 638 A.2d at 1204. The court also held that if it is determined that Mount Vernon is obligated to indemnify Chantel, Mount Vernon should be given an opportu
I.
In Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975), we held that an insurance company has a duty to defend its insured for all claims which are potentially covered under an insurance policy. In Brohawn we stated:
“The obligation of an insurer to defend its insured under a contract provision ... is determined by the allegations in the tort actions. If the plaintiffs in the tort suits allege a claim covered by the policy, the insurer has a duty to defend. Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.” (Citations omitted).
276 Md. at 407-08, 347 A.2d at 850. Our recent opinion in Aetna v. Cochran, 337 Md. 98, 651 A.2d 859 (1995), further clarified the Brohawn potentiality rule and held that an in
In determining coverage under an insurance policy, we initially focus on the terms of the insurance policy to determine the scope and limitations of its coverage. See Mitchell v. Maryland Casualty, 324 Md. 44, 56, 595 A.2d 469, 475 (1991) (stating that in a declaratory judgment action brought to determine coverage under an insurance policy, “ ‘it is the function of the court to interpret the policy and decide whether or not there is coverage’ ”) (quoting St. Paul Fire & Mar. Ins. v. Pryseski, 292 Md. 187, 194, 438 A.2d 282, 286 (1981)); Mut. Fire, Marine & Inland Ins. v. Vollmer, 306 Md. 243, 250, 508 A.2d 130, 133 (1986). In construing the terms of the insurance contract, we must accord the terms their “customary, ordinary, and accepted meaning.” Mitchell, 324 Md. at 56, 595 A.2d at 475; Cheney v. Bell National Life, 315 Md. 761, 766, 556 A.2d 1135, 1138 (1989). In Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 488 A.2d 486 (1985), this Court stated that:
“An insurance contract, like any other contract, is measured by its terms unless a statute, a regulation, or public policy is violated thereby. To determine the intention of the parties to the insurance contract ... we construe the instrument as a whole ... [and] should examine the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.” (Citations omitted).
302 Md. at 388, 488 A.2d at 488.
With these principles of construction in mind, we note that Mount Vernon’s general liability insurance policy requires it to “pay on behalf of the insured all sums which the insured shall
In Mitchell, we were called upon to interpret the term “bodily injury” under a general liability insurance policy. In so doing, we relied on the definitions accorded that term by other courts. We relied on Zurich Ins. v. Northbrook Excess & Surplus, 145 Ill.App.3d 175, 98 Ill.Dec. 512, 520, 494 N.E.2d 634, 642 (1986), which held that “the plain meaning of the term ‘bodily injury’ is harm or damage of, or relating to the body.” We further looked to Ins. Co. of North America v. Forty-Eight Insulations, 633 F.2d 1212, 1222 (6th Cir.1980), which noted that “for insurance purposes, courts have long defined the term ‘bodily injury’ to mean ‘any localized abnormal condition of the living body’ ” (citing Appleman, Insurance Law and Practices § 355 (1965)). See Mitchell, 324 Md. at 58-62, 595 A.2d at 476-78. Although we were interpreting the term “bodily injury” in the context of asbestos-related injuries in Mitchell, we accorded the term its “ordinary and accepted” definition under a general liability insurance policy. Because the language in the Mount Vernon policy is identical to the policy language in Mitchell, the term “bodily injury” must be accorded the same meaning in the instant case as it was accorded in Mitchell. Thus, harm or damage of, or relating to the body or any localized abnormal condition of the living body constitutes a bodily injury under the Mount Vernon policy.
Having established the definition of “bodily injury” under the Mount Vernon policy, we must now determine if the Epperson plaintiffs suffered “bodily injury.” According to the further amendment by interlineation to the complaint, the Epperson plaintiffs were “exposed to lead paint, lead chips and lead dust [from the beginning of their residence and each child] ... was injured by this exposure, as the ingestion of
“An injury is the alteration of structure or function of a cell, tissue or organ. Physical or chemical damage to the body which may be detectable only on a microscopic or subclinical level also constitute^] an injury.
******
Exposure to lead produces both direct and indirect damage to the cells, tissues and organs of the body that begin immediately or shortly after exposure ...,
******
[and that] human infants and toddlers below the age of three years are at special risk because of in útero exposure.”
The Epperson complaint, along with Dr. Schroeder’s undisputed affidavit, leads to the conclusion that the “direct and indirect damage to the cells, tissues and organs,” caused by the Epperson plaintiffs’ exposure to lead constitutes a “bodily injury” as that term was defined in Mitchell. In fact, the record in the instant case establishes that the “bodily injury” suffered by the Epperson plaintiffs’ exposure to lead is similar to the “bodily injury” suffered in Mitchell where we held that “ ‘bodily injury’ occurs when asbestos is inhaled and retained in the lungs.” Mitchell, 324 Md. at 62, 595 A.2d at 478. Additionally, according to Dr. Schroeder’s uncontradicted affidavit, “bodily injury” occurred immediately or shortly after exposure, and in Quanna’s case, through in útero exposure. Thus, the record in the instant case establishes that the Epperson plaintiffs suffered “bodily injury,” immediately or soon after their exposure to the chipping and flaking lead paint at the Chantel property during the Mount Vernon policy period and that this “continuous and repeated exposure” resulted in bodily injury constituting an “occurrence” triggering coverage under the Mount Vernon policy.
We disagree with the Court of Special Appeals’s determination that Mount Vernon’s duty to defend did not arise until the Epperson plaintiffs filed the further amendment by interlineation on July 9, 1992. See Mount Vernon Ins., 99 Md.App. at 559, 638 A.2d at 1202. We have held that any doubt as to whether there is a potentiality of coverage under an insurance policy is to be resolved in favor of the insured. See U.S.F. & G. v. Nat. Pav. Co., 228 Md. 40, 55, 178 A.2d 872, 879 (1962).
II.
The next issue we must consider is whether the Court of Special Appeals properly held that Mount Vernon’s duty to indemnify Chantel for any liability Chantel incurred in the Epperson action can be determined only after a final judgment has been entered in that action. We hold that the circuit court properly resolved the duty to indemnify in the instant case in the declaratory judgment action. We note that in the circuit court, all parties agreed that a determination of the indemnification issue was appropriate for disposition in the declaratory judgment action. Furthermore, the parties did not argue the inappropriateness of such disposition on appeal to the Court of Special Appeals. Nevertheless, the intermediate appellate court considered the issue and held that Mount Vernon’s duty to indemnify can be determined only after “the Epperson [action] has proceeded to judgment.” See Mount Vernon Ins., 99 Md.App. at 561, 638 A.2d at 1204.
“A declaratory judgment action prior to the trial of a tort action against the insured may under some circumstances be a valuable means of resolving questions of policy coverage where those questions are independent and separable from the claims asserted in a pending suit by an injured third party.
* * * * *
But where ... the question to be resolved in the declaratory judgment action will be decided in [a] pending action[ ], it is inappropriate to grant a declaratory judgment.” (Citation omitted).
276 Md. at 405-06, 347 A.2d at 848—49; see also Allstate v. Atwood, 319 Md. 247, 254-55, 572 A.2d 154, 157 (1990) (stating that “declaratory judgments in advance of tort trials, to resolve issues presented in pending tort cases, should be rare”); Maryland Auto. Ins. Fund v. Sun Cab Co., 305 Md. 807, 810, 506 A.2d 641, 643 (1986) (noting that an issue “squarely presented for resolution in the tort action[ ],” was appropriately refused consideration in a declaratory judgment action).
In Brohawn, a declaratory judgment action to determine coverage was prohibited because the issue in the declaratory judgment action, i.e. whether the defendant acted negligently or intentionally, would be fully litigated in the underlying tort action. See Brohawn, 276 Md. at 405-06, 347 A.2d at 848-49. In contrast, the facts necessary to determine the ultimate liability of Mount Vernon, i.e. the dates on which the lead-related injuries occurred, will almost certainly not be determined in the trial of the Epperson action. The Epperson plaintiffs need only prove that they suffered lead-related injuries while residing at the Chantel dwelling — there is simply no reason for the Epperson plaintiffs to present evidence as to the date when the lead-related injuries occurred. In fact, as the circuit court noted in the instant case, “[o]ne of the problems is, how would a jury determine, if [the Epperson
Furthermore, prohibiting a declaratory judgment action prior to the trial of an underlying tort action, where the issue of coverage to be resolved in the declaratory judgment action is independent and separable from the issues to be decided in the underlying tort action, would have the effect of hindering attempts at settlement. In ACandS, Inc. v. Aetna Cas. & Sur. Co., 666 F.2d 819 (3rd Cir.1981), the United States Court of Appeals for the Third Circuit initially determined that declaratory relief was appropriate because “[t]he factors that will determine the relative duties and benefits under the insurance contract are independent of the underlying claims____” 666 F.2d at 822-23. The court further noted that:
“It would turn the reality of the claims adjustment process on its head to hinge justiciability of an insurance agreement on the maturation of a suit to a judgment when the overwhelming number of disputes are resolved by settlement. The respective interests and obligations of insured and insurers, when disputed, require determination much in advance of judgment since they will designate the bearer of ultimate liability in the underlying cases and hence the bearer of the onus and risks of settlement____ To delay for the sake of more concrete development would prevent the litigants from shaping a settlement strategy and thereby*149 avoiding unnecessary costs. [Declaratory judgment relief was intended to avoid precisely the ‘accrual of avoidable damage to one not certain of his rights.’ ” (Citation omitted).
ACandS, 666 F.2d at 823.
Thus, we hold that an issue of insurance coverage which is “independent and separable” from the issues to be litigated and decided at the tort trial may be appropriate for resolution in a declaratory judgment action and therefore, the circuit court properly considered Mount Vernon’s duty to indemnify in the instant case. We note, however, that it is within the trial court’s discretion to defer resolution of an issue presented in a declaratory judgment action until the time of trial of the underlying tort action, even if that issue is one which is “independent and separable” from the issues to be resolved at the underlying tort trial. See Brohawn, 276 Md. at 406, 347 A.2d at 848.
Having determined that the duty to indemnify was properly considered in the declaratory judgment action in the instant case, we must now determine whether the circuit court properly determined that Mount Vernon has a duty to indemnify Chantel in the Epperson action. We agree with the circuit court that Mount Vernon has a duty to indemnify Chantel in the Epperson action. The record before the circuit court in the instant case reflects that Napoleon and Donald’s lead-related injuries occurred immediately or soon after moving into the Chantel dwelling in September, 1985, which was within the Mount Vernon policy period. Additionally, according to Dr. Schroeder’s undisputed affidavit, Quanna’s lead-related injuries occurred while she was in útero, also during the Mount Vernon policy period.
Mount Vernon had the opportunity to present evidence to contradict the affidavit of Dr. Schroeder which stated that the lead-related injuries occurred immediately or soon after exposure to lead. In its summary judgment motion, however, Mount Vernon provided no affidavit to contradict the opinions contained in Dr. Schroeder’s affidavit. Under Mary
In light of the evidence on the record in the instant case, we agree with the circuit court that “Dr. Schroeder’s affidavit ... is sufficient to bring the children within the period of time that Mount Vernon had the policy.” Thus, we find that Mount Vernon has a duty to indemnify Chantel up to the limits of its policy for any recovery the Epperson plaintiffs obtain against Chantel. We also note that the Court of Special Appeals determined that Mount Vernon should be permitted to demonstrate that any obligation it may have to indemnify Chantel should be allocated. See Mount Vernon Ins., 99 Md.App. at 561, 638 A.2d at 1204. Sharing the obligation to indemnify was never raised by any party, including Mount Vernon, at either the trial court or at the Court of Special Appeals. Mount Vernon was provided with the opportunity to argue for shared indemnification at the circuit court and chose not to do so. Thus, we do not consider this issue in this appeal.
III.
We note that although Scottsdale and Empire argue in their briefs to this Court that they should be reimbursed for costs incurred in defending the Epperson action and litigating the declaratory judgment action, the issue of reimbursement of costs was not raised in the petitions for certiorari to this Court. Thus, we do not consider this issue in the instant case.
IV.
We hold that Mount Vernon had a duty to defend Chantel from the inception of the Epperson action for claims brought
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REINSTATE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT MOUNT VERNON FIRE INSURANCE COMPANY.
. Scottsdale also named Valerie McCree, Napoleon Epperson, III, Lynelle McCree, Donald Wilson, Jr. and Quanna Wilson, the plaintiffs in the tort action filed against Chantel, as defendants in this action.
. Chantel Associates is a Maryland General Partnership whose sole partners are Joel David Chananie (Chananie) and Teresa Levitin (Levi-tin). Chananie and Levitin were also named as defendants in the tort action filed against Chantel. These parties will hereinafter be referred to collectively as Chantel.
. Allstate also issued a homeowner’s policy to Chananie and Levitin during this period; however, this policy did not provide coverage for the Epperson action.
. This definition of "occurrence” is contained in the Mount Vernon insurance policy. The other insurance policies contain virtually identical definitions of “occurrence.”
. The first policy provided that Scottsdale "should not be obligated to make any payment or defend any claim arising out of lead paint poisoning ... injuries.” The second policy provided that the "policy excludes any and all losses arising out of lead paint poisoning.”
. The circuit court dismissed the argument that the Chantel property was excluded under the personal umbrella policy’s business exclusion on the grounds that the business exclusion did not include “one, two,
. There was no petition for certiorari on the issue of whether Scottsdale, Empire or Allstate had a duty to defend or indemnify Chantel in the Epperson action. Thus, we do not consider whether any of these insurers owe a duty to defend or indemnify Chantel in the Epperson action.
. We note that the only evidence in the record in the instant case is the complaint which states that the Epperson plaintiffs were exposed to