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June 4, 1954


Appeal, No. 341, Jan. T., 1953, from judgment of Superior Court, Oct. T., 1953, No. 82, affirming judgment of Court of Common Pleas No. 7 of Philadelphia County, June T., 1952, No. 4615, in case of John Wilson v. Maryland Casualty Company. Judgment reversed. Same case in Superior Court: 173 Pa. Super. Ct. 486. Assumpsit. Defendant's preliminary objections to complaint dismissed and judgment entered for plaintiff, opinion by OLIVER, P.J. Defendant appealed to the Superior Court, which affirmed the judgment of the court below. Appeal by defendant to Supreme Court allowed.


Robert C. Kitchen, with him Richard A. Smith, for appellant.

Foster A. Dunlap, with him Philip S. Polis, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 377 Pa. Page 589]


The question is whether there was any duty on the part of the defendant, Maryland Casualty Company, to defend an action for damages brought by one John A. Lees against the plaintiff, John Wilson, who was insured by the Company against liability for accidents.

In the Company's policy it agreed "To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages... because of bodily injury, sickness or disease,... sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined." By another clause of the policy it was provided that "Assault and battery shall be deemed an accident unless committed by or at the direction of the insured."*fn1 The policy further provided that "As respects such insurance as is afforded by the other terms of this policy the company shall (a) defend in his name and behalf any

[ 377 Pa. Page 590]

    suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent;..." In other words, the obligation to defend suits against the insured extended only to where insurance against liability was covered by the terms of the policy.

Wilson operated a restaurant and taproom. An action in trespass was brought against him by one John A. Lees, and Wilson called upon the Casualty Company to defend it. The Company refused so to do, whereupon Wilson settled the case and then brought action against the Company to recover the amount of the settlement which he had made, $750. Preliminary objections to his complaint were overruled by the court and the Company was directed to file an answer; upon its failure to do so judgment was entered in favor of Wilson. The Superior Court affirmed the judgment and we allowed this appeal.

Wilson's complaint against the Casualty Company set forth that on or about the 28th day of January, 1951, "an altercation took place among the patrons of Plaintiff's restaurant and bar with the result that certain accidental injuries were alleged to have been sustained by John A. Lees"; that Lees instituted an action in trespass against the plaintiff to recover damages allegedly sustained by Lees due to the aforesaid injuries. Had the complaint stopped there it might well be that the Company would have been obliged to defend the action because of the averment that accidental injuries were alleged to have been sustained by Lees. But the complaint had attached to it a "true and correct copy" of Lees' complaint in the action brought by him against Wilson in which it appeared that Lees did not sue for accidental injuries but, on the contrary, his complaint declared that "On January

[ 377 Pa. Page 59128]

, 1951, while the said plaintiff was lawfully in defendant's taproom... the defendant [Wilson] then and there unlawfully set upon and with great force and violence assaulted the plaintiff [Lees] with a certain blackjack and struck the said plaintiff on the head with said blackjack. As a result of said assault and battery, the plaintiff suffered injuries to his head... Said conduct of defendant was unlawful, wanton and malicious." Indeed, to emphasize the fact that Lees' claim was not based on any theory of accident or negligence but on the commission of a wilful tort, -- indeed of a crime -- the complaint added that he, Lees, was "entitled to exemplary and punitive as well as compensatory damages from defendant." Since, therefore, insurance against liability on such a claim was expressly excluded from the coverage of the policy,*fn2 the Company, by reason of the provision that it was obliged to defend only those suits as to which the policy insured against liability, properly disclaimed obligation to defend the Lees suit.

Plaintiff presents the curious argument that merely because he asserted that Lees' charge that he had committed assault and battery upon him was groundless, therefore the Company was obliged to defend the action. If that contention were correct the Company would be obliged to defend any and every action brought against its insured, no matter what its nature, if informed by the insured that the claim was false or if it was in fact false, even though liability in respect

[ 377 Pa. Page 592]

    to it was not insured by the terms of the policy. It is obvious that the Company's obligation was not to defend all suits and claims whatsoever merely because they were groundless, but to defend all suits and claims covered by the policy whether or not they were groundless.*fn3 In other words, a cause of action was not insured because of its being false, but was insured if covered by the policy, whether or not it was false. The question is not as to the truth or falsity of a claim, but whether it is covered by the policy; if it is, the Company must defend it; if it is not, its truth or falsity is wholly immaterial.

In Fullmer v. Farm Bureau Mutual Automobile Insurance Co., 350 Pa. 451, 452, 39 A.2d 623, it was said: "It is scarcely more than a legal platitude to say that in a suit on an insurance policy the primary requisite for recovery is proof by the plaintiff that the claim comes within the general coverage of the policy."

In West Philadelphia Stock Yard Co. v. Maryland Casualty Co., 100 Pa. Superior Ct. 459, 462, it was said that it was "the nature of plaintiff's claim against the stock company [the insured] which determined whether the company [the casualty insurance company] was required to defend", but if the claim came within the scope of the policy the company was obliged to defend even though the claim might be wholly groundless, false or fraudulent.

[ 377 Pa. Page 593]

In Springfield Township v. Indemnity Insurance Co. of North America, 361 Pa. 461, 464, 64 A.2d 761, 762, it was again stated that it is "the nature of the claim which determines whether the insurer is required to defend."

In Knorr v. Commercial Casualty Insurance Co., 171 Pa. Superior Ct. 488, 90 A.2d 387, an insurance policy expressly provided that it did not apply to the rendering of any professional services by any person. A claim was instituted against the insured by the patron of a beauty shop for injury sustained by a mechanical hair dryer striking her on the head. The company denied liability to defend the action and its position was upheld by the court on the ground that it was not obliged to defend a suit on a claim which was not within the terms of the policy.

The case of University Club v. American Mutual Liability Insurance Co. of Boston, 124 Pa. Superior Ct. 480, 189 A. 534, relied upon by the plaintiff, is not in point. The policy issued in that case was to indemnify the insured against liability for damages on account of injuries to the insured's employes who were legally employed. A claim was made against the insured for damages by reason of personal injury sustained by one of the employes, it being incidentally stated in the complaint that the injured employe was 17 years of age. Judge KELLER pointed out that the plaintiffs in that action "based their right of recovery on the defective condition of the elevator, and did not aver, or specifically rely on, any illegal employment of the minor plaintiff." Accordingly it was held that the insurance company was not justified in refusing ...

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