York Insurance Group of Maine v. Lambert
740 A.2d 984
Me.
1999
Check Treatment

*1 1999 ME 173

YORK INSURANCE GROUP MAINE

OF LAMBERT.

Richard O.

Supreme Court of Maine. Judicial Sept. on Briefs

Submitted Nov.

Decided III, Wuestoff, Noah D.

John J. Wall Libby, Monaghan, Leahy, Hochadel & LLP, Portland, plaintiff. Hallett, Portland, F. for defen- Thomas dant. WATHEN, C.J., and

Before CLIFFORD, RUDMAN, DANA, ALEXANDER, SAUFLEY, CALKINS, JJ.

WATHEN, C.J. Lambert Defendant Richard 0. summary judgment en- appeals from a (Cumberland Superior tered in Court Mills, J.) insurer, favor his County, Maine, Group of plaintiff York Insurance duty by no virtue of a ruling that had insurance to defend policy of homeowner’s underlying probate in an action. Lambert considering Because the court erred pleadings, vacate beyond the evidence judgment. developed pur- as summary may be sum- poses judgment Margaret Umbaugh, follows: marized as to an individually as heir-at-law entitled share, David together intestate Lambert, representatives of co-special Graff, brought an Hugh A. the Estate Court County in York Probate action complaint alleged against Lambert. step- was the following facts: Lambert death, Hugh Prior his son of Graff. peri- For a Hugh incompetent. was Graff death, had prior to od decedent’s relationship with a confidential or period time During the decedent. *2 985 Lambert exercised control the that an of dece- have held cannot avoid its insurer person dent’s and his property, obtaining a duty to establishing, defend before the power of attorney from and using concluded, decedent underlying action has that ulti- power attorney the of tangible to transfer mately duty will no there be to indemni- ” intangible personal and property from de- 44, 5, fy.’ Penney, ME A.2d 1998 707 to complaint cedent himself. The includ- (citations omitted). at 388-89 We ex- ed, alia, inter claims for of breach fiducia- plained the reason for the follows: rule as (constructive ry duty trust), conversion, just, inexpen- the speedy To secure and and interference with an expectancy of involving sive an determination of action inheritance. a a duty duty indemnify to defend and to a Insurance filed declarato- duplication requires and avoid a of trials ry judgment requesting action the court proceed in following that courts the or- declare that its insurance contract duty der: the determination of a to de- allegations did not cover the con- fend, liability then the determination complaint. in tained the York Insurance action, finally in underlying the and the filed a motion summary judgment, for to- duty determination indemnify. of the to gether with a supporting memorandum of Id., (citation omitted). 707 at 389 A.2d We law and a statement of material facts. explained have the as fol- also rationale The statement of material sup- facts was lows: ported by to interrogatories. answers Af- beyond If we were to look the hearing, ter the court an entered order facts, engage proof of actual then granting York Insurance’s for motion sum- separate declaratory the judgment ac- ruled, mary judgment. The court based independent tions ... would become tri- on the to answers interrogatories, that the als of facts which the [insured] York Insurance a duty did have to carry have to would on at his ex- defend Lambert in underlying probate the pense why .... We no see reason the action on the basis that damages the insured, obligated by whose insurer is sought were economic damages, are him, to contract defend should have to not covered the homeowners insurance try against facts in a the suit his insurer policy. From ruling, this Lambert ap- in order to obtain a defense. peals. “ Elliott v. Hanover Ins. 1998 ME ‘Whether has a duty insurer ¶ 7, (citation omitted). 1312 in particular to defend a question case is ” duty “The to defend broader than the of law.’ Penney Capitol City Trans- duty indemnify, to an insurer Inc., fer, 44, 4, 1998 ME A.2d 707 it (citations omitted). have to defend before is clear whether longstanding duty indemnify.” Penney, there is a to that rule is we duty “‘determine the to ¶44, 15, A.2d at As in by comparing defend the allegations the Penney, present the case offers reason no underlying complaint provisions with the (citations comparison deviating pleading for from the policy.’” the insurance Id. “ omitted). test long A that has been the rule in Maine. to defend exists ‘[i]f “potential reveals a ... that the underlying complaint 6] The in ultimately proved may come within cludes of a breach ’” (citations omitted). coverage.” Id. (constructive fraud), conversion, interference with an of inheri [¶ 5] Lambert that contends beyond argues court erred tance. when looked York Insurance complaint does pleadings underlying not include considered evidence extrin bodily dam complaint. property sic to We. agree. We re cently “ general age, specifically restated the and more rule follows: neither circumstances,

‘Except give limited claims asserted nor the facts Inc., harm, City Transfer, f suggestion sickness or any (citation omitted). disease. Confining exami- our review entry is: of the and the home- nation Judgment vacated. Remanded to the *3 that owners insurance we conclude proceedings for Superior Court further alleged a potential exists that the opinion herein. with the consistent injury bodily result in within the cov- may policy. of For ex- erage the homeowners ALEXANDER, J., whom with on ample, although complaint its face the SAUFLEY, RUDMAN, J., join, J. and allegations not of specifically does include dissenting. pain and emotional distress or emotional the suffering, general allegations the of The respectfully 9] I dissent. [¶ of inheri- interference an the opinion accurately summarizes Court’s carry possibility claim the of an tance law from some current state of the derived award for emotional See distress. Re- duty to defend cases. Elliott v. recent §§ (Second) 774B cmt. statement of Torts Co., 138, 711 A.2d Ins. Hanover 774A(l)(c) (1979). e, Transfer, Capitol City v. Penney 1310 and Inc., 44,ME 707 A.2d 387. [¶ We have that 8] “[u]n- held excluded, a dis less emotional of Duty question 1. to is a law. defend triggers duty to tress insurer’s defend ¶ ¶ 4, 6, 1312, p. Penney p. at at Elliott if the emo ‘bodily injury’ coverage under 388. by or tional distress caused ‘accident duty 2. The to defend is determined poli of meaning occurrence’ within the the in comparing allegations the the under- Co., cy.” Vigna v. Allstate Ins. provisions lying complaint with the of (Me.1996). rea explained the We policy. the insurance Id. in soning a claim for termination duty if the 3. The to defend exists com- employment possible, of that “it albeit plaint potential that the facts reveals so, remotely coverage that there would be ultimately proved come the within if the can that he suf plaintiff establish coverage. Id. injury, or disease’ as ‘bodily fered sickness his beyond a result of emotional distress caused do consider evidence We Casualty discharge.” Bonding & Maine policy the face the Inc., Dynamics, 594 A.2d Douglas Co. v. duty Elliott determining to defend. (citation omitted). (Me.1991) 1312; p. Penney p. at at 388-89. Thus, oth we need not address Lambert’s However, opinion the Court’s ex- er that the breach of contentions gone we have beyond tends the law where also contain duty and conversion claims before, com- what the speculating about requests damages of and not, allege to create might, but does plaint potentially that could be characterized under a new duty speculative to defend damage.” or As “bodily injury” “property comparison test. Penney, though beyond “[e]ven evidence no alle- includes may later the ab pleadings establish distress, bodily gations of emotional duty indemnify, of a to that evidence sence duty damage to to determining property generate or properly is not considered in policy.1 under the York Insurance duty Penney Capitol defend to defend.” policy terms 1. The York Insurance defines the ” accident, damage" "bodily "property "oc- injury, 5. "Occurrence" means an as follows: exposure currence" cluding repeated to continuous harm, "Bodily injury” substantially general means same con- harmful disease, results, including required ditions, during policy pe- sickness or which care, loss of services and death results. (2) ‘insured,’ to is derived not defend from the With the intent face of the but speculation from cause a loss. proof of the one economic torts losses [¶ 16] Since the asserted “carry might possibility of an IV, necessarily count resulted from actions award for emotional distress.” voluntarily knowingly undertook to reduce the assets of the es- In one of our most 12] recent tate, from such resulting losses intentional cases, to defend v. Amica Johnson Mutual not a acts Lambert are covered loss

Ins. did not engage speculation in such about claims, distress, like emotional that might interpretation Under be, not, but alleged. were “tangible property” “intangible prop Instead we *4 compared of the underlying erty” words adopted in Johnson v. Amica Ins. similarly Co., ¶¶4-5, 106, with a worded home 1999 ME 733 A.2d at 978- policy 79, policy owner’s and ruled that the appears did it also that at least some of the not impose converted, to defend against alleged items to have been claim; 5, accounts, conversion at p. example Johnson 979. bank not “tangible were Thus, property.” their conversion or mis Using the same test we used use “property damage” was not Johnson, comparison of the text of the language and the of the York [¶ 18] The same reasons would bar a support does not the possibility of policy under the York for the losses an award for emotional distress or other count, alleged in the conversion count V. bodily injury or property damage as envi- sioned the Court. Similar difficulties are 19] faced in comparison policy of the terms of the [¶ 14] The Court cites three counts of expectancy the interference with of inheri the underlying Probate Court tance count. This tort is more frequently which, view, may its possibility raise a “wrongful called interference with the ex (1) for an award covered the policy: pectancy of an inheritance.” The key alle (count (2) Breach Duty IV); of Fiduciary “Defendant, gation of that: this count is (count V); (3) Conversion Interference through his overt actions described (count VI). with Expectancy of Inheritance above, improperly justifica without [¶ 15] The and the estate decedent are tion, fraud, by means of intimidation and alleged entities to have been wronged influence, undue plaintiff interfered with in the fiduciary duty breach of count. Umbaugh’s expectancy.” This paragraph, Certainly, neither could suffer emotional VI, of count terminology generally distress or injury other from such a track wrongful the cause of action for in breach. To the extent loss of value or expectancy terference with the of an inher assets of the estate due to the alleged cases, our itance as outlined in recent Mor breach of fiduciary might be con- Morrill, 133, 7, rill v. 712 A.2d strued as “property damage,” such a loss 1039, 1041; Gerrard, v. Plimpton would not be a covered loss because is 882, (Me.1995); 885 n. v. DesMarais excluded as an “intentional loss” under the (Me.1995). Desjardins, 664 A.2d terms of policy which define exclud- damaged [¶ 20] What is to be ed intentional loss as: here an intangible expectancy of bene-

any any loss act arising out commit- fits. That intangible is not (1) ted: By or at the policy’s direction of covered under definition of riod, (a) (b) "Bodily Injury;” "Prop- Damage” in: “Property physical or 6. means to, of, jury or erty Damage.” destruction loss of use of tangible property. physical 1999 ME 174 “property damage” “means of, to, of use of destruction loss In re B. et al. ISAIAH tangible property.” See v. Amica Johnson ¶¶4-5, Ins. Mutual Supreme Judicial Court of Maine. A.2d at 978-79. on Submitted Briefs Oct. this count The Court notes that Decided Nov. might carry possibility “the of an award However, per- distress.” emotional many one who persons son who be expectancy of an

might claim an inheri-

tance, only victim a an “indirect” tort- against a

feasors conduct dece-

dent or an estate. an individual Such qualify bring an emotional

would precedent

distress claim under our 284-285 Pepin,

Cameron

(Me.1992); see also Michaud v. Great *5 Nekoosa Corp.,

Northern

¶¶ 15-17, Additionally, with an claim of interference

expected only with inheritance can succeed intentional, sufficiently as

proof of conduct by

indicated in the com-

plaint, that it would be excluded poli- York

intentional loss exclusion of the

cy.2

,[¶ Thus, comparison of the allega- underlying complaint

tions and the homeowner’s insur-

language of Lambert’s possi- policy, provide

ance even a does

bility any allegation might be made liability trigger could parties Lambert’s homeowner’s entering the insur-

surance into contract, did not intend that certainly

ance alleging

it would cover claims estates assets of

improper interference

estates, poli- language coverage

cy sufficiently clear that such

is excluded. judg- I affirm the

Accordingly, would Superior

ment of Court. conduct, 133, 7,¶ Morrill, through such defendant fraud, tortious See Morrill v. 1041-42, indicating one element A.2d of the tort duress or undue influence.” interference "an intentional