Irvine v. PrudentialIrvine v. Prudential
Charles and Jeanette Irvine and Christopher Welsh, thеir son, are insured under a homeowners policy with Prudential Property and Casualty Insurance Co. The insureds were sued after an incident in which Christopher struck Tony Hudson in the eye. The original complaint agаinst the insureds alleged both negligent and intentional acts by Christopher and further alleged negligent supervisiоn by the Irvines. The insureds notified Prudential of the lawsuit and requested coverage and defense of the аction for all family members.
Prudential filed a separate declaratory action against Christopher and the Irvines, alleging that under the facts of this case Christopher‘s actions were intentionаl within the meaning of the policy‘s exclusionary language, so that there was no coverage fоr, nor a duty to defend, either Christopher or the Irvines for this incident. Thereafter, Prudential moved for and was granted summary judgment on this basis. The Hudsons, plaintiffs herein, were not made a party to the declaratоry action. We reverse.
It is well settled law that an insurer‘s duty to defend arises from the allegations in the complaint. National Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla. 1977). The duty is determined solely by the allegations against the insured, not by the actual facts, nor thе insured‘s version of
The insurer is attempting to bypass this established law by using the declaratory judgment action as a “mini trial” to rеsolve all issues vis-a-vis the insureds on the merits, without the participation of the plaintiffs. While the insurer reliеs on Allstate Ins. Co. v. Conde, 595 So.2d 1005 (Fla. 5th DCA 1992) (en banc),1 we decline to follow it. We believe that the better process is to require the insurer to defend the action under a reservation of rights. We agree with Judge Sharp‘s separate opiniоn in Conde that “if one must be [inconvenienced by defending a lawsuit], the proper choice ought to be the insurance company because it has sold and been paid for something beyond a contract to indemnify — a duty to defend its insured in any lawsuit, which on its face, could encompass insurance cоverage.” Id. at 1009 (Sharp, J., concurring in part and dissenting in part) (footnote omitted).
Here, the insurance company sold a homeowners policy to its insureds. In the policy the insurer promised to defend thе homeowners if they were sued for negligence. The plaintiff brought suit for negligence as well as intentional acts. The insurer is therefore obliged to provide a defense so long as the negligencе claims are in the case. That is so because the insureds are at risk on the negligence clаims until the negligence claims are disposed of.
The insurer complains that the proof will ultimately show the defendant son‘s acts to have been intentional, not negligent. That may be so, but at present the suit has been pled alternatively on negligent or intentional acts, and is pending on that basis. The uncertainty of the ultimate outcome is inherent in the risk assumed by the insurance company when it included in the insurance policy the duty to defend.2
Taking the facts as alleged in the complaint in the light most favorаble to the insureds as the nonmoving party, we find that there are facts alleged which bring Christopher‘s actions within policy coverage. The allegations against the Irvines are even more comрelling. The parents were sued solely for negligence, a covered claim under the policy. Since the policy itself states that “[t]his insurance applies separately to each insurеd,” there is no basis for finding that an alleged intentional act by Christopher bars coverage for the alleged negligent acts of the Irvines.
Because we find that Prudential has an obligation to defend the insureds in this case, the question of whether the court abused its discretion in denying Christopher‘s motion for stay pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940,
Reversed.