Plaintiff, a doctor, appeals from a summary judgment entered in favor of defendant, his professional liability insurance carrier. Plaintiff contends that the insurer was obligated by the terms of an insurance policy to defend against an action for alienation of affections and that, therefore, the insurer is liable for the cost of settling the action filed against plaintiff by a third party
From 1971 to 1974, plaintiff had a professional liability insurance policy with defendant. In March, 1975, plaintiff was served with summons and complaint in a suit entitled "DANIEL THOMAS HANNAN V. EDWARD C. EBERDT, M.D.” 1 The complaint alleged that from January, 1973, until December, 1973, Eberdt
"* * * intentionally and negligently engaged in a course of activity and conduct with Barbara L. Hannan which was designed to obtain the affections of Barbara L. Hannan, and which did alienate from [Daniel Han-nan], the affections of Barbara L. Hannan, causing her to abandon [Daniel Hannan], and causing the marriage of Barbara L. Hannan and [Daniel Hannan] to terminate in divorce.” (Emphasis supplied.)
Plaintiff, through his attorney, tendered the complaint to defendant on or about March 22, 1975. Defendant denied any obligation to defend against the complaint on the ground, inter alia, that the acts complained of did not constitute "professional services,” and it was contrary to public policy to insure against the activity alleged. A subsequent amended complaint was not tendered to the defendant.
In April, 1976, plaintiff voluntarily made a settlement with Daniel Hannan of the alienation action. The action was then dismissed with prejudice. At all *682 times plaintiff disclaimed guilt of any personal or professional wrong.
In general, the allegations of the complaint determine an insurance company’s duty to defend.
Farris v. U.S. Fidelity & Guaranty,
Under the public policy limitation against insuring for intentionally inflicted injury or damage, it is not sufficient that the insured’s intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches.
Nielsen v. St. Paul Companies,
The elements of alienation of affection are wrongful conduct of the defendant,
intended to cause
and which actually did cause
a loss to the plaintiff
of the affection and consortium of his spouse.
Edgren v. Reissner,
Plaintiff also asserts that the action for alienation of affections was groundless and that defendant, *683 therefore, had a duty to defend. However, as stated in Isenhart v. General Casualty Co., supra at 54,
"* * * [i]t is more reasonable to assume that the parties bargained for the insurer’s participation in the lawsuit only if the action brought by the third party, if successful, would impose liability upon the insurer to indemnify the insured.”
In the instant case, the insurer would not be liable if the alienation action were successful; therefore, the insurer had no duty to defend.
Finally, plaintiff contends that the allegation that Eberdt "negligently” alienated the affections of Barbara Hannan obligated the insurance company to defend. However, in the context of a cause of action alleging an intentional tort, which by definition cannot be committed in a negligent manner, the allegation of negligence is surplusage. Therefore, the word "negligently” fails to extend coverage and the insurer had no duty to defend.
The trial court was correct in ordering summary judgment for defendant.
Affirmed.
Notes
The caption of the original complaint contains the only reference to Dr. Eberdt’s physician status. The nature of a pleading is to be determined by its allegations and not its caption.
Rogue River Management Co. v. Shaw,