[¶ 1] In this appeal, we are asked to determine whether an insurer had a duty to defend a policyholder against a complaint alleging, among other things, that the policyholder converted another person’s lobster traps or gear. Edwin Mitchell appeals from the entry of a summary judgment in the Superior Court (Knox County, Hjelm, J.) in favor of Allstate Insurance Company on Mitchell’s complaint for breach of contract and from the denial of Mitchell’s motion for partial judgment on the pleadings. The Superior Court concluded that Allstate had no duty to defend Mitchell in the separate liability action because a policy exclusion for certain intentional acts applied. We conclude that Allstate did have a duty to defend, and we vacate the judgment.
I. FACTUAL AND PROCEDURAL HISTORY
[¶ 2] Mitchell is a lobster fisherman working in the waters off Matinicus Island. In September 2008, Victor Ames sued twenty-three people, including Mitchell, numerous other lobster fishermen on Ma-tinicus Island, and certain state officials. Ames alleged generally that a group of Matinicus Island lobster fishermen had conspired to prevent him from fishing for lobster in the area. Among other things, Ames’s second amended complaint included a cause of action against Mitchell for conversion based on Mitchell’s alleged participation in a “fishermen’s group” that “destroyed, converted, molested and ren
[¶ 3] At all relevant times, Mitchell held a Deluxe Homeowners Policy with Allstate Insurance Company. The policy included “Coverage X: Family Liability Protection,” which provided Mitchell with liability insurance for “damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.” The policy defined an “occurrence” as “an accident ... resulting in bodily injury or property damage.” “Property damage” was defined to mean “physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction.” By the policy’s terms, Allstate agreed to provide a defense if the policyholder was sued for such damages “even if the allegations are groundless, false or fraudulent.”
[¶ 4] The policy contained several coverage exclusions, including the following:
Losses We Do Not Cover Under Coverage X [Family Liability Protection]:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct;
b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or
c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.
[¶ 5] After being served with Ames’s complaint, Mitchell contacted Allstate, which declined to provide coverage. Mitchell retained his own counsel and was successful in defending himself against the Ames suit, but he states that he incurred approximately $13,625.52 in attorney fees and litigation costs.
[¶ 6] Mitchell later filed a complaint against Allstate in the Superior Court for breach of contract
[¶ 7] Mitchell moved for partial judgment on the pleadings against Allstate, and Allstate moved for summary judgment. See M.R. Civ. P. 12(c), 56. The court concluded that the claim for conversion failed to allege property damage that would fall within the policy’s coverage and that the intentional acts exclusion applied. Concluding that Allstate had no contractual duty to defend Mitchell, the court granted Allstate’s motion for summary judgment and denied Mitchell’s motion for
II. DISCUSSION
[¶ 8] The court addressed Mitchell’s motion for partial judgment on the pleadings, M.R. Civ. P. 12(c), together with Allstate’s motion for summary judgment, M.R. Civ. P. 56. Both a ruling on a motion for judgment on the pleadings and a ruling on a motion for summary judgment are reviewed de novo. See Gniadek v. Camp Sunshine at Sebago Lake, Inc.,
A. An Insurer’s Duty to Defend
[¶ 9] To determine whether an insurer has a duty to defend, we compare the allegations of the underlying complaint with the coverage provided in the insurance policy. Id.; Commercial Union Ins. Co. v. Royal Ins. Co.,
[¶ 10] This comparison test arises from our holding that the duty to defend is broader than the duty to indemnify, see York Ins. Group of Me. v. Lambert,
[¶ 11] Because the duty to defend is broad, any ambiguity in the policy regarding the insurer’s duty to defend is resolved against the insurer, see Union Mut. Fire Ins. Co.,
[¶ 12] Mindful of these legal principles, we now consider whether, on Ames’s complaint, he could potentially prove facts that would establish liability covered by Mitchell’s Allstate policy. We therefore compare the facts alleged in Ames’s complaint with the language of the Allstate policy.
1. The Policy Exclusion
[¶ 13] Although the duty to defend is broad, it does have limits. An insurer may properly refuse to defend a policyholder if the allegations of the complaint fall entirely within a policy exclusion. See, e.g., Johnson v. Amica Mut. Ins. Co.,
[¶ 14] The policy exclusion at issue here will apply to Ames’s conversion claim against Mitchell if the complaint limits the potential liability to circumstances where either (a) Mitchell intentionally interfered with property that he knew belonged to Ames, or (b) Mitchell intentionally acted in a way that could reasonably be expected to result in the interference with Ames’s property. We examine Ames’s complaint to determine whether facts could possibly be proved on this complaint that would bring the complaint within the policy’s coverage.
2. Coverage for the Conversion Claim
[¶ 15] The Ames complaint alleged that Mitchell had, among other things, converted Ames’s personal property. To establish a claim for conversion, the plaintiff must show an invasion of the plaintiffs possession or right to possession by demonstrating “(1) a property interest in the goods; (2) the right to their possession at the time of the alleged conversion; and (3) when the holder has acquired possession rightfully, a demand by the person entitled to possession and a refusal by the holder to surrender.” Bradford v. Dumond,
[¶ 16] Here, the complaint contains no allegation that Mitchell acquired possession of any of Ames’s property rightfully, so there is no requirement of demand and a refusal to surrender. See Bradford,
[¶ 17] Ames’s complaint alleged that one or more members of the fishermen’s group had converted lobster traps or fishing gear that belonged to Ames. Although Ames alleges a conversion undertaken “in an agreed upon and concerted effort,” that fact would not have to be proved for Ames to prevail on his conversion claim. Rather, on these allegations, Ames could establish conversion against Mitchell in one of two other ways.
[¶ 18] First, Ames could demonstrate a conversion by proving that Mitchell exercised dominion or control over lobster fishing gear by simply possessing gear in which Ames had a property interest and right of possession. See Bradford,
[¶ 19] Second, however, Ames could establish a conversion that involved damage to his property. For instance, Ames could prove on this complaint that other individuals cut Ames’s lobster traps, that Mitchell found and took the traps without knowing that they belonged to Ames, and that Mitchell damaged the traps in this process. Mitchell could have intentionally “exerciser a dominion or control over the goods” in such a way that he accidentally interfered with Ames’s rights, Ocean Nat’l Bank of Kennebunk,
[¶ 20] Because Ames could potentially establish a conversion resulting in property damage without proving that Mitchell intended to damage Ames’s property, see Bradford,
[¶ 21] Because an insurer has a duty to defend if any cause of action alleged in a complaint could fall within the policy’s liability coverage, see Me. Mut. Fire Ins. Co. v. Gervais,
The entry is:
Judgment vacated. Remanded for further proceedings to determine contract damages.
Notes
. Mitchell also sued another insurance company in his complaint, but the court dismissed that claim with Mitchell’s consent.
. A dispute regarding an insurer's duty to defend is ordinarily brought as a request for a declaratory judgment rather than a breach of contract claim. See, e.g., York Ins. Group of Me. v. Lambert,