Appeal from decree of Court of Common Pleas of Allegheny County, Jan. T., 1960, No. 1787, in case of Arthur L. Vanderveen v. Erie Indemnity Company.
Lisle A. Zehner, for appellant.
Richard C. McHugh, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno dissents.
Plaintiff was involved in an automobile accident, and, as a result, was subject to a claim for damages.
Alleging that he was protected under a casualty insurance policy issued by the defendant company, this action in equity was instituted seeking specific performance of the contract of insurance.
Preliminary objections to the complaint challenging the jurisdiction of equity were overruled, and, after answer filed alleging prior cancellation of the policy, the issue came on for hearing. The chancellor, concluding that the contract was in force at the pertinent time, entered a decree directing the defendant to defend the accident claim and to pay counsel fees incident to the present action. Exceptions to the decree were dismissed, and the defendant appealed.
The lower court erred in entertaining the action. It is fundamental that equity lacks jurisdiction if an adequate and complete remedy at law exists. This clearly is such a case.
An insurer's failure or refusal to defend a claim within the scope of an insurance policy constitutes a breach of contract for which it is subject to damages recoverable in an action of assumpsit: King v. Automobile Underwriters, Inc., 409 Pa. 608, 187 A.2d 584 (1963), and Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959). This includes the costs required to defend the claim: Cadwallader v. New Amsterdam Casualty Co., supra.
The lower court in sustaining equity's jurisdiction concluded that existing legal remedies were inadequate to protect plaintiff from imminent, irreparable harm. It reasoned that, since the insurance coverage was questioned, plaintiff's ability to establish financial responsibility, as required by the Pennsylvania Motor Vehicle Responsibility Act,* ...