Dеfendants appeal a declaratory judgment of the Oakland Circuit Court holding that two insurance policies issued by plaintiffs did not give rise to a duty to defend the various Snyder comрanies in a separate suit commenced in Wayne County.
In the Wayne suit an injured workman employed by Snyder, the subcontractor, sued Practical, the general contractоr, for personal injuries resulting from a construction accident. 1 Practical impleaded Snyder as a third-party defendant pursuant to the indemnity and "hold-harmless” provisions of a сontract between the general contractor and subcontractor. 2 Snyder, assuming it was insured by plaintiffs, demanded that the insurers defend the third-party complaint brought by Practical. Denying liability, the insurers initiated the present suit for declaratory judgment.
Two policies of insurance are involved. The first, an "Automobile-General Comprehensive Liability Policy” issued to thе Snyder companies by plaintiff The Western Casualty and Surety Company, provides coverage for general exposures and for bodily injury. By its terms, however, the policy does not include "bodily injury to any employee of the insured arising out of and in the course of his employment”. Of the two exceptions to this exclu *245 sion. of coverage, only one arguably applies, namely, that bodily-injury coverage is allowed where the insured has assumed liability "under a contract as defined” by the instant policy.
Since defendants have admitted that the workman suffered his injuries while in the course of his employment, our only task in construing the first policy is to determine whether Snyder’s contract to indemnify and hold Practical harmless is a liability assumed by the insured under a "contract” as defined by the policy. The general definitions of the policy provide in pertinent part:
"(c) Contract means, if in writing, a lease of рremises, easement agreement, agreement required by municipal ordinance, sidetrack agreement, or elevator or escalator maintenance agreement.”
Clearly, only the most strained construction could interpret the Snyder-Practical indemnity contract as of the type described in the policy’s definition of contract. See
Kipka v Chicago & Northwestern Railway Co,
A different question, however, is presented under the second policy, a "Workmen’s Compensation and Employer’s Liability Policy” issued by plaintiff The Western Fire Insurance Company. "[C]overage A” under this policy includes a duty to *246 pay workmen’s compensation claims to an injured employee, which plaintiff Western Fire asserts it has done; "coverage B” obliges the insurer:
"[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease * * * sustained * * * by any employee of the insured arising out of and in the course of his employment * * * in [Michigan].”
In addition, the insurer agreed "as respects the insurance afforded by the other terms of this policy” to:
"defend any proceeding against the insured seeking such benefits and any suit against the insured аlleging such injury and seeking damages on account thereof, even if such proceeding or suit is groundless, false or fraudulent.”
Plaintiffs, however, sought to avoid their defense obligation by relying on certain exclusions from coverage:
"This policy does not apply:
"(c) under coverage B, to liability assumed by the insured under any contract or agreement,
"(f) under coverage B, to any obligatiоn for which the insured or any carrier as his insurer may be held liable under the workmen’s compensation or occupational disease law of [Michigan], any other workmen’s cоmpensation or occupational disease law, any unemployment compensation or disability benefits law, or under any similar law.”
In the complaint for declaratory judgment, *247 plaintiff Western Fire cited the Snyder-Praсtical indemnity contract and urged the court "under the circumstances and under the language of the [instant] policy” to hold it unobliged to defend Practical’s third-party complaint against Snyder in Wayne County. In their respective answers, defendants acknowledged the indemnity agreement, but defendant Practical further asserted as an affirmative defense thаt its third-party complaint was predicated not only upon contractual indemnity but also upon "negligence against the employer [i.e., Snyder]”. Without disputing this latter contention and withоut detailing the particulars of the third party complaint, plaintiffs moved for summary judgment, GCR 1963, 117.2(2), 117.2(3), seeking a declaration that the insurers had no duty to defend the Snyder companies. Plaintiffs’ attorney appended an affidavit to this motion in which he indicated that "the pleadings of defendant admit the issues involved” in the litigation. The affidavit was silent, however, with regard to the negligence theory asserted by Practical.
The lower court, in an opinion 3 noteworthy for its brevity and its apparent disregard of GCR 1963, 517.1, granted summary and declaratory judgment in favor of plaintiffs.
For a variety of reasons, we hold that the lower court erred in granting summary and declaratory judgment to plaintiff Western Fire. First, the in
*248
surer had an obligation to plead the facts entitling it to the judgment it seeks.
Kuhn v East Detroit,
In Zanca, the court allоwed the insurer to avoid its defense obligation to the insured because the complaints of the injured workmen charged the active negligence of the village of Ridgewoоd, the third-party plaintiff. In contrast, the unsettled record of the present case prevents us from determining whether Practical, the third-party plaintiff, was an active tortfeasоr and thus unentitled to *249 recover from Snyder on a common-law theory of indemnity. Moreover, Zanca can also be distinguished as a case wherein there were no theories of liability аsserted against the insured other than the contractual indemnity excluded under the policy.
We believe the better rule is that an insurer has a duty to defend, despite theories of liаbility asserted against an insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. See
Leonardi v Standard Acсident Insurance Co of Detroit, Michigan,
212 F2d 887, 889-890 (CA 2, 1954),
Tiffiny Decorating Co v General Accident Fire & Life Assurance Corp, Ltd,
12 Ill App 3d 597, 604;
In our view, the language of exclusion (c) preventing coverage for "liability assumed by the insured under any contract or agreement”, must be limited to situations where the insured did not have an existing legal liability. Similarly, exclusion (f) should not be read as a bar to recovery but rather as a limit of liability to the damages in excess of thоse recovered under the Workmen’s Compensation Act. Cf, MCLA 418.827(5); MSA 17.237(827X5).
Accordingly, the summary and declaratory judgments are reversed. Should plaintiff Western Fire attempt to revive this action by amending its complaint, the lower court (if it permits amendment) is directed to examine Practical’s third-party complaint and to look behind the complaint in order that it detеrmine whether theories other *250 than contractual indemnity were or may be maintained against Snyder. If this inquiry produces an affirmative response, then the court shall dismiss the declaratory judgment with prejudice and order Western Fire to defend the Snyder companies.
Affirmed as to plaintiff Western Casualty and Surety Company; reversed as to plaintiff Western Fire Insurance Company. Costs to be divided between plaintiff Western Casualty and Surety Company and the defendants.
Notes
Apparently the damages claimed were in excess of those permitted under the Workmen’s Compensation Act, as plaintiff Western Fire asserts it has paid workmen’s compensation claims.
As will be noted, the record is unclear whether Practical’s third-party complaint also asserted a common-law theory of indemnity.
At any rate, this impleader procedure is permitted in Michigan. See
McClouth Steel Corp v A. E. Anderson Construction Corp,
The lower court opinion stated in full:
"I am impressed with the reasoning in Maryland Casualty Company v Zanco (New Jersey), 184 Atl 2d 886. The two insurance policies in question are clear and unambiguous. These policies must be construed most strongly against the insurer. Nevertheless, we must find that Plaintiffs are under no obligation to defend the action against Snyder and Practical nor are they liable for any judgments rendered thereon.
"Prepare an Order rendering a Declaratory Judgment in favor of the Plaintiffs.”