Baltimore Gas & Electric Co. v. Commercial Union Insurance

HOLLANDER, Judge. In this case, we must decide whether an insurer’s duty to defend its insured depends entirely upon the claims as originally asserted in the complaint, or whether the plaintiffs’ revised allegations, during the course of litigation, may terminate the insurer’s duty to defend. We also must determine if the insurer is obligated to indemnify its insured, and whether a subcontractor of the insured breached its contract to provide insurance for the. insured. In February 1991, Michael and Kathleen Corradetti filed suit against Jones Intercable, Inc. (“Jones”) for personal injuries suffered after the couple’s car fell into a utility pit (“the Corradetti suit”).

They later amended their suit to include claims for negligence against Baltimore Gas and Electric Company (“BGE”), appellant, Ferguson Trenching Company (“Ferguson”), appellee, and others. Pursuant to a contract with BGE, Ferguson dug the pit into which Mr. Corradetti later drove his car. Ferguson was contractually obligated to obtain a general commercial liability insurance policy to protect both Ferguson and BGE, in connection with Ferguson’s work for BGE. That policy, which is central to this dispute, was obtained from Commercial Union Insurance Company (“Commercial”), appellee, through Commercial’s issuing company, American Employers Insurance Company (“American”), appellee.

Relying on the terms of the policy, Commercial declined to defend or indemnify BGE in the Corradetti suit. Thereafter, BGE instituted a declaratory action in the Circuit Court for Anne Arundel County, seeking a determination of its rights ⁵⁴⁷ under the policy. After judgment was entered against BGE in the Corradetti suit, the circuit court granted appellees’ motions for summary judgment in the declaratory action. It determined that Commercial did not have a duty to defend or indemnify BGE and that Ferguson did not breach its contractual obligation to provide BGE with insurance coverage.

This appeal followed, in which BGE presents the following questions. I. Did the circuit court err in granting Appellees’ Motion for Summary Judgment on all issues relating to the indemnification and defense of BGE in the underlying Corradetti case?

II

Did the circuit court err in failing to grant Appellant’s Motion for Partial Summary Judgment on all issues related to the indemnification and defense of BGE in the underlying Corradetti case? For the reasons that follow, we shall affirm in part and reverse in part. Factual Summary In connection with BGE’s installation of underground utilities in Anne Arundel County, BGE and Ferguson entered into a “blanket contract,” which extended from June 1, 1989 to May 31, 1991. The agreement specifically required the insurance to cover “excavation” and “subsurface work,” and provided that Ferguson assumed all risks of liability for injuries “arising out of or incident to the performance of the work.” Further, the contract obligated Ferguson to maintain commercial general liability insurance for the benefit of BGE, listing BGE as an additional insured.

Pursuant to the contract, in May 1990 Ferguson excavated the site in issue. In accordance with the contract, Ferguson obtained insurance coverage from Commercial, through its issuing agent, American. 1 Ferguson was the named insured on the policy, ⁵⁴⁸ and an endorsement to the policy named BGE as an additional insured. Under the policy, however, BGE’s coverage was limited by several exclusions, which restricted coverage to claims based on negligence by Ferguson and claims that BGE negligently failed to supervise Ferguson. Between May 21 and May 23, 1990, Ferguson dug a “splicing pit” adjacent to Seamore Street, in Anne Arundel County, based on a request from BGE under the parties’ blanket contract.

The pit was designed to give BGE access to a power line buried in the ground. Some months later, in October 1990, the Corradettis visited the home of a friend residing on Seamore Street. As they were leaving, Mr. Corradetti backed his car down the driveway of the home and onto Seamore Street. Unfortunately, he stopped his car partially in the splicing pit.

As he got out of his car, he fell into the pit, sustaining serious personal injuries. Although the Corradettis brought suit initially against Jones only, they amended their suit to add claims against BGE, Ferguson, C & P Telephone Company, and Spector Communications, Inc. BGE advised Commercial of the suit and requested a defense. In September 1992, Commercial refused to defend BGE, asserting that the Corradettis’ claim was not covered by Commercial’s policy, as it fell within one of the exclusions to BGE’s coverage. Consequently, BGE instituted a declaratory action against Commercial, alleging that the insurer was obligated to defend and indemnify BGE in the Corradetti case, and that Ferguson breached its contractual obligation to acquire certain insurance for BGE.

On March 22,1993, the court denied BGE’s motion for summary judgment, concluding: “I don’t think I can resolve this issue without [the Corradetti case] being resolved first.” In the meantime, the parties in the Corradetti case proceeded with discovery and, on April 12, 1993, the trial court held a hearing on the Corradettis’ Motion For Dismissal By Order of Court, which all defendants, except BGE, joined. The motion sought dismissal of 1) all claims by the plaintiffs against all ⁵⁴⁹ defendants, except BGE; 2) all cross-claims by Jones against the other defendants; and 3) BGE’s cross-claim against Ferguson. The Corradettis advised the court that they had concluded, based on discovery, that BGE alone was negligent, as it was responsible for the failure to backfill the pit. The plaintiffs further argued that the continued presence of the other defendants would confuse the jury, since “the only person we’re going after is BG & E.” Although BGE objected, the court granted the motion and dismissed all claims, with prejudice, except the Corradettis’ claim against BGE.

Thereafter, the Corradettis proceeded to trial and the jury returned a verdict finding BGE liable for negligence. It awarded the Corradettis $500,800.00 in damages. 2 The jury in the Corradetti case found BGE liable for the Corradettis’ injuries, based on BGE’s own negligence, apparently because of BGE’s failure to backfill the splicing pit. The Corradetti jury returned the following answer to the single question presented to it on the issue of BGE’s conduct: 1. Was the Defendant, the Baltimore Gas & Electric Company, negligent, and did that negligence proximately cause injuries to the Plaintiff, Michael W. Corradetti and his wife, Kathleen Corradetti?

Check: Yes (X) No () On September 15, 1993, the court held a hearing in the declaratory action with regard to Ferguson’s motion for summary judgment. Ferguson argued that the court’s dismissal of BGE’s cross-claim against it acted as res judicata or collateral estoppel of the entire declaratory action. The court concurred and dismissed the declaratory action. BGE appealed both cases.

In the Corradetti case, BGE asserted, inter alia, that it was not solely responsible for the ⁵⁵⁰ condition of the trench, and argued that it should have had an opportunity to establish that others were hable for the accident. We upheld the jury verdict in an unreported opinion, but reversed the dismissal, with prejudice, of BGE’s cross-claim against Ferguson; we directed the trial court to enter an order of dismissal without prejudice. Baltimore Gas and Electric Co. v. Corradetti, No. 1493, September Term 1993, 100 Md.App. 788 (filed May 2, 1994). While we determined that BGE was entitled to an opportunity to present evidence on its cross-claim, we rejected BGE’s claim that it was entitled to a reversal because it had been prevented from presenting evidence that Ferguson and others were responsible for the Corradettis’ injuries.

We noted that “the questions of liability and damages as between BG & E and the Coradettis were unaffected by the presence or absence of Ferguson in the suit....” Slip. op. at 9. We reasoned that BGE never proffered any evidence to support its proposed defense, and that BGE’s claim as to Ferguson and others was not relevant to the issues in the Corradetti suit, because BGE was not attempting to shift liability onto Ferguson. Rather, BGE was attempting to share liability with Ferguson, and thus BGE was not shielded from liability. In an unreported opinion in the declaratory action, we concluded that our reversal of the dismissal of BGE’s claim against Ferguson “eviscerated” the trial court’s dismissal of the declaratory action based on res judicata or collateral estoppel principles.

Baltimore Gas and Electric Co. v. Commercial Union Ins. Co., No. 23, September Term, 1994, 101 Md.App. 714 (filed Sept. 19, 1994). Therefore, we- remanded the declaratory action for further proceedings. On remand in the declaratory action, BGE filed a motion for partial summary judgment on the issue of whether Commercial had a duty to defend BGE in the Corradetti suit.

The court denied this motion, and issued a written opinion and order dated September 19, 1995, concluding that Commercial “had no duty to defend BG & E in the Corradetti litigation.” The court stated that it had previously found that Ferguson had completed the excavation work on May 25,1990, and “was ⁵⁵¹ off the job from that point forward.” The court thus concluded: “The Plaintiff in Corradetti was not injured as a result of Ferguson’s omission to fill in the ditch excavated, but rather BG & E’s omission.” Therefore, the court determined that the Corradettis’ claims were not covered by BGE’s policy with Commercial. Thereafter, Ferguson and Commercial moved for summary judgment as to BGE’s claims in the declaratory action. They argued that, because the jury had found BGE liable for the Corradettis’ injuries, the Corradettis’ claim was excluded from coverage under BGE’s policy. Ferguson also contended that it had not breached its contract to provide insurance for BGE, because the Corradettis’ claim arose from BGE’s own negligence in not backfilling the pit, and Ferguson’s contract did not require it to obtain insurance to cover BGE’s own negligence.

BGE filed another motion for partial summary judgment. It asserted: 1) Commercial had a duty to defend BGE in the Corradetti case; 2) Commercial breached its contract by refusing to indemnify BGE for the Corradetti judgment; and 3) Ferguson breached its contractual obligation to provide BGE with the requisite insurance coverage. After the court entertained oral argument on the motions on February 20, 1996, it entered judgment in favor of all defendants. The court stated: [Ejvery time I look at this case I come up with the same picture and it — and I have given it an independent look because I think it’s clear BG & E is — is in search of some theory by which it can extricate itself from this hole they’ve got themselves into, financially.

But I think that really it’s quite clear that this contract was complete except for the work that had to be done by BG & E filling it in. And I think that was clear from the testimony earlier that preceded the trial with the Corradetti matter and which ended up by [the Corradettis] letting all those other people out of the case. ⁵⁵² I don’t think with that in mind and regardless of whether BGE was found negligent at trial, which of course would exclude it from coverage under the Commercial Union policy, but even excluding that theory, I don’t think there’s any duty to defend where you — your only claim of having the contract continuing is your own negligence in not terminating it by filling- in the hole. They had signed off on Ferguson’s work order, they were no longer required to do anything under the contract and the mere fact that BGE didn’t do anything to complete the filling of the hole doesn’t mean the contract stays open forever so that there would be duty to defend under the policy and I think clearly there’s not only a no [sic] duty to indemnify, but there’s no duty to defend and I think summary judgment should be granted in favor of Ferguson and Commercial Union and American Employers on all counts. We shall include additional facts in our discussion of the issues.

Standard of Review Md. Rule 2-501 establishes a two part test for summary judgment. “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Regional Med. Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996). See also Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. 557, 576-77 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992).

In deciding the motion, however, the court does not resolve disputes of fact. Rather, the court must determine if the parties genuinely dispute any material fact. Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216 , 401 A.2d 1013 (1979); Impala Plati ⁵⁵³ num, Ltd. v. Impala Sales (U.S.A), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978).

To defeat the motion for summary judgment, the party opposing the motion must produce evidence demonstrating that the parties genuinely dispute a material fact. Scroggins v. Dahne, 335 Md. 688 , 645 A2d 1160 (1994). Even if the non-moving party demonstrates the existence of a disputed fact, it will not defeat the motion for summary judgment unless the dispute concerns a material fact, i.e., a fact that will alter the outcome of the case depending upon how the factfinder resolves the dispute over it. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Keesling v. State, 288 Md. 579, 583 , 420 A.2d 261 (1980); Miller v. Fairchild Indus., 97 Md.App. 324, 340 , 629 A.2d 1293 (1993).

The non-moving party must present more than “mere general allegations which do not show facts in detail and with precision” to demonstrate the factual dispute and defeat the motion. Beatty, 330 Md. at 738 , 625 A.2d 1005 . Moreover, the court must view the facts in the light most favorable to the non-moving party. Berkey v. Delia, 287 Md. 302 , 413 A.2d 170 (1980); Maloney v. Carling Nat’l Breweries, Inc., 52 Md.App. 556 , 451 A.2d 343 (1982).

We review the trial court’s decision to determine whether the court reached the correct legal result. Beatty, 330 Md. at 737 , 625 A.2d 1005 . Appellate courts generally review a grant of summary judgment based only on the grounds relied upon by the trial court. Blades v. Woods, 338 Md. 475 , 659 A.2d 872 (1995); Gross v. Sussex, Inc., 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993); Hoffman v. United Iron and Metal Co., 108 Md.App. 117 , 671 A.2d 55 (1996).

Discussion As this case requires us to interpret both the insurance contract issued to Ferguson and the contract between BGE and Ferguson, we pause to review the principles that guide us in the interpretation of contracts. In Maryland, the law is well settled that an insurance policy is interpreted like any other contract. Collier v. MD-Individual Practice Ass’n, 327 ⁵⁵⁴ Md. 1, 607 A.2d 537 (1992); National Grange Mut. Ins.

Co. v. Pinkney, 284 Md. 694 , 399 A.2d 877 (1979); Aetna Insurance Company v. Aaron, 112 Md.App. 472, 481-83 , 685 A.2d 858 (1996); Bentz v. Mutual Fire, Marine & Inland Ins. Co., 83 Md.App. 524 , 575 A.2d 795 (1990). Therefore, Maryland courts do not follow the rule that an insurance policy must be strictly construed against the insurer. Bausch & Lomb v. Utica Mut.

Ins. Co., 330 Md. 758, 779 , 625 A.2d 1021 (1993); Cheney v. Bell Nat’l Life Ins. Co., 315 Md. 761, 766 , 556 A.2d 1135 (1989). See also Hartford Acc. and Indem.

Co. v. Scarlett Harbor Assoc. Ltd. Partnership, 109 Md.App. 217, 290 , 674 A.2d 106 , cert. granted, 343 Md. 334 , 681 A.2d 70 (1996). “Construction of a contract is, in the first instance, a question of law for the court to resolve.” Shapiro v. Massengill, 105 Md.App. 743, 754 , 661 A.2d 202 , cert. denied, 341 Md. 28 , 668 A.2d 36 (1995). The principal rule in the interpretation of all contracts is to effect the intentions of the parties. Kasten Constr.

Co., Inc. v. Rod Enterprises, Inc., 268 Md. 318 , 301 A.2d 12 (1973); McIntyre v. Guild Inc., 105 Md.App. 332, 355 , 659 A.2d 398 (1995); Taylor v. Feissner, 103 Md.App. 356 , 653 A.2d 947 , cert. denied, 339 Md. 355 , 663 A.2d 73 (1995). When the language of the contract is clear, the court will presume that the parties intended what they expressed, even if the expression differs from the parties’ intentions at the time they created the contract. Roged, Inc. v. Paglee, 280 Md. 248 , 372 A.2d 1059 (1977); McIntyre, 105 Md.App. at 355 , 659 A.2d 398 ; Shapiro, 105 Md.App. at 754 , 661 A.2d 202 ; Bernstein v. Kapneck, 46 Md.App. 231 , 417 A.2d 456 (1980), aff'd, 290 Md. 452 , 430 A.2d 602 (1981). A contract must be construed as a whole, and effect given to every clause arid phrase, so as not to omit an important part of the agreement.

Bausch & Lomb, 330 Md. at 758, 625 A.2d 1021 ; Sagner v. Glenangus Farms, Inc., 234 Md. 156 , 198 A.2d 277 (1964); see also Marsh v. Loffler Housing Corp., 102 Md.App. 116 , 648 A.2d 1081 (1994). ⁵⁵⁵ With these principles in mind, we turn to an examination of appellant’s contentions. Appellant argues that Ferguson breached its contract with BGE by failing to provide the required insurance coverage. It also claims that Commercial was contractually bound to defend BGE in the Corradetti case, and that Commercial was obligated to indemnify BGE for the judgment in the Corradetti case. I. Ferguson’s Contractual Duty to Procure Insurance for BGE Appellant argues that the blanket contract between the parties required Ferguson to “procure insurance that would have provided coverage for any relevant claim (bodily injury or property damage) that arose out of work done by Ferguson.” It maintains that the Corradettis’ claims arose out of the work performed by Ferguson, because Ferguson excavated the trench into which Mr. Corradetti fell.

Therefore, it asserts that if Commercial’s policy does not cover the claims in the Corradetti suit, then Ferguson failed to meet its obligation under the contract to provide BGE with the appropriate insurance coverage. Without comment on this issue, the circuit court entered judgment in favor of Ferguson. The contract between BGE and Ferguson required Ferguson to provide BGE with coverage only for certain potential claims that might be brought against BGE. Whether Ferguson properly performed under the contract depends upon a comparison of the coverage that the contract bound Ferguson to obtain, and the coverage Ferguson provided through the Commercial policy.

According to its contract with BGE, Ferguson was to obtain commercial general liability insurance, and the insurance was to be endorsed: Such insurance as afforded by this policy for the benefit of BGE shall be primary as respects any claims, losses, damages, expenses, or liabilities arising out of work or services for BGE, and insured hereunder, and any insurance carried ⁵⁵⁶ by BGE shall be excess of and noncontributing with insurance afforded by this policy. (Emphasis added). Thus, Ferguson was to provide BGE with coverage for potential claims by third parties that were based on work by Ferguson for BGE. It is plain that, through the contract, BGE sought to insulate itself from claims grounded on the actions of its subcontractor, over which it would have only supervisory control, but for which BGE could potentially be found derivatively liable.

BGE apparently recognized that by contracting with Ferguson to perform work on BGE’s behalf, it was assuming the risk of liability if Ferguson’s work should result in legal action against it. Thus, BGE sought to shift that risk back to Ferguson, by requiring Ferguson to provide appropriate insurance coverage. The contract, however, does not require Ferguson to provide BGE with insurance coverage for claims brought against BGE based on BGE’s own negligence. The contract expressly required Ferguson to carry the coverage for itself, with an endorsement to also cover BGE.

While it provides that the coverage is to protect BGE for “claims, losses, damages, expenses, or liabilities arising out of work or services for BGE,” it does not apply to liabilities arising from work performed by BGE. Under its insurance policy, Commercial agreed to insure Ferguson as follows: We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS-COVERAGES A AND B. [3] This insurance applies only to “bodily injury” and ⁵⁵⁷ “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence”.

The “occurrence” must take place in the “coverage territory”. We will have the right and duty to defend any “suit” seeking those damages. The insurance policy specified that, as an additional insured, BGE was protected only with respect to liability arising out of: A. “Your work” [Ferguson’s] for the additional insured(s) at the location designated above, or B. Acts or omissions of the additional insured(s) in connection with their general supervision of “your work” at the location shown in the Schedule. The policy defined “Your work” as: a.

Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations. “Your work” includes warranties or representations made at any time with respect to the fitness, quality, durability or performance of any of the items included in a. or b. above. As Ferguson was the named insured on the policy, “your work” referred to work performed by Ferguson. Thus, as required by the contract, the policy provided BGE with coverage for claims brought against BGE based on Ferguson’s work for BGE.

The policy also provided BGE with coverage for claims based on BGE’s acts or omissions in supervising Ferguson. The endorsement also contained the following exclusions hmiting coverage: B. Additional Exclusions. This insurance does not apply to: ⁵⁵⁸ (2) “Bodily injury” or “property damage” occurring after: (a) All work on the project (other than service, maintenance, or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or (b) That portion of “your work” out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. (3) “Bodily injury” or “property damage” arising out of any act or omission of the additional insured(s) or any of their employees, other than the general supervision of work performed for the additional insured(s) by you.

These exclusions essentially correspond to the section providing coverage; the policy does not cover claims based on actions by BGE, except for its supervision of Ferguson’s work. The exclusions also bar coverage for claims occurring after Ferguson completed its work at a site and after Ferguson’s work was “put to its intended use____” Arguably, Exclusion (B)(2)(a) breached Ferguson’s obligation to provide BGE with adequate insurance, because it may limit BGE’s coverage for work done by Ferguson to the period of time that Ferguson actually worked on the site. Yet a claim for negligence could have been brought against BGE for an accident occurring after Ferguson completed its work, but which nonetheless “arose” out of Ferguson’s work. If that had been the allegation in the Corradetti suit, then BGE might have had a viable claim that Ferguson had breached its contract, and was responsible for BGE’s damages.

In this case, however, as we discuss, infra, after the Corradettis dismissed their claims against all parties except BGE, their only remaining claim was based on BGE’s own negligence, for which Ferguson was not required to insure BGE. Thus, BGE’s claim that Ferguson failed to meet its contractual obligation is not material. Ferguson never had the obligation to protect BGE in an action grounded on BGE’s own ⁵⁵⁹ negligence. Therefore, Ferguson could not have violated that obligation.

As the circuit court did not specify the grounds upon which it granted summary judgment in favor of Ferguson, we must assume that it “carefully considered all of the asserted grounds and determined that all or at least enough of them ... were meritorious.” Bond v. NIBCO, Inc., 96 Md.App. 127, 133 , 623 A.2d 731 (1993). Accordingly, we shall affirm the judgment in favor of Ferguson.

II

Commercial’s Duty to Defend BGE We must decide whether Commercial had a duty to defend appellant in the Corradetti litigation. This decision requires us to resolve two questions: 1) whether Commercial, at the outset of the suit, had a duty to defend BGE in the Corradetti suit; 2) even if Commercial originally had a duty to defend, did the actions of the Corradettis in dismissing their claims as to all parties except BGE then relieve Commercial of its obligation to defend BGE? The law in Maryland is well settled that an insurer’s duty to defend its insured under a liability insurance policy arises when the insured is sued on a claim that is covered, or is potentially covered, by the insurance policy; the duty is ordinarily determined based on the allegations in the suit and the language of the policy. See Brohawn v. Transamerica Ins.

Co., 276 Md. 396 , 347 A.2d 842 (1975). See also Chantel Assoc. v. Mt. Vernon Fire Ins. Co., 338 Md. 131 , 656 A.2d 779 (1995); Aetna Cas. & Sur.

Co. v. Cochran, 337 Md. 98 , 651 A.2d 859 (1995); St. Paul Fire & Marine Ins. v. Pryseski, 292 Md. 187 , 438 A.2d 282 (1981); Aetna Ins. Co. v. Aaron, 112 Md.App. 472, 481-83 , 685 A.2d 858 (1996); Reames v. State Farm Fire & Cas. Ins., 111 Md.App. 546, 558 , 683 A.2d 179 (1996) ; Oweiss v. Erie Ins. Exchange, 67 Md.App. 712, 717 , 509 A.2d 711 (1986).

Indeed, the Court of Appeals recently held that the duty to defend arises as long as the plaintiff in a tort case alleges an “action that is potentially covered by the policy, no matter how attenuated, frivolous, or illogical that ⁵⁶⁰ allegation may be.” Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 643 , 679 A.2d 540 (1996). In Brohawn, 276 Md. 396 , 347 A.2d 842 , the insurer filed a declaratory judgment seeking a determination that it did not have to defend or indemnify its insured.

The insured was sued by employees of a nursing home for alleged assault after she tried to take her grandmother out of the nursing home. The initial complaint by the employees alleged only an intentional assault by the insured, but it was later amended to include a negligence claim. The insurer claimed it had no duty to defend, because intentional torts were expressly excluded from coverage under its policy. The insurer reasoned that because its insured had pled guilty to criminal assault charges based on the incident, she would be found hable for an intentional act, and thus the claim would not be covered by the policy.

The Court disagreed. In explaining the insurer’s duty to defend, it said: The obligation of an insurer to defend its insured under a contract provision such as here involved is determined by the ahegations in the tort actions. If the plaintiffs in the tort suits allege a claim covered by the policy, the insurer has a duty to defend. Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.

Brohawn, 276 Md. at 407 , 347 A.2d 842 (citations omitted). Thus, the Court held that the insurer had a duty to defend because [t]he amended declarations in the personal injury cases here involved, alleging negligence, clearly state claims within the coverage of the policy. While Transamerica may believe that the evidence of the guilty plea would establish that any injuries sustained by [the employees] were the result of intentional acts by Mrs. Brohawn, this belief will not relieve ⁵⁶¹ Transamerica of its duty to defend its insured in suits which allege an unintentional tort covered by the policy. Id. at 408 , 347 A.2d 842 .

Later, in St. Paul Fire & Marine Ins. v. Pryseski, 292 Md. 187 , 438 A.2d 282 (1981), the Court articulated a two part test for determining the insurer’s duty to defend. The Court said: In determining whether a liability insurer has a duty to provide its insured with a defense in a tort suit, two types of questions ordinarily must be answered: (1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? (2) do the allegations in the tort action potentially bring the tort claim within the policy’s coverage? The first question focuses upon the language and requirements of the policy, and the second question focuses upon the allegations of the tort suit.

Pryseski, 292 Md. at 193 , 438 A.2d 282 . Subsequent decisions have consistently reaffirmed the Pryseski test. Sheets, 342 Md. at 643 , 679 A.2d 540 ; Cochran, 337 Md. at 103-04 , 651 A.2d 859 ; Aaron , slip op. at 8-9; Lawyers Title Ins. Corp. v. Knopf, 109 Md.App. 134 , 674 A.2d 65 , cert. denied, 343 Md. 333 , 681 A.2d 69 (1996); Chesapeake Physicians Professional Ass’n v. Home Ins.

Co., 92 Md.App. 385 , 608 A.2d 822 (1992). In addition to examining the insurance policy and the allegations raised by the tort plaintiff, the court may also consider “extrinsic evidence” adduced by the insured to determine if the tort plaintiffs suit is covered by the policy. Cochran, 337 Md. at 111 , 651 A.2d 859 ; see also Sheets, 342 Md. at 640 n. 2, 679 A.2d 540 . The Corradettis’ amended complaint against Jones, C & P, Spector, BGE, and Ferguson alleged, in part: 4.

That on October 10, 1990, while the Plaintiff was backing his vehicle from a private driveway onto Seamore Street, and while exercising all due care and prudent caution for his own safety, his vehicle fell into an excavation made by the Defendant corporations, by their agents, servants or employees which excavation was created by the ⁵⁶² negligent, careless and reckless construction activities of the Defendants, their agents, servants and employees. 5. That said fall and injuries to the Plaintiff occurred by reason of the negligence, carelessness and lack of due care on the part of the Defendants, by their agents, servants or employees in that they: did fail to fully fill-in, grade and level the area of excavation created by construction activities; they did fail to post adequate signs, warnings, barriers, or protection for vehicles and pedestrians traversing the area when they knew, or with the exercise of reasonable care should have known, that the failure to so act would cause a condition hazardous to the public; they did fail to grade the area to level with the existing topography in relationship to road and sidewalk areas; they did create a hazard to motor traffic by causing an excavation adjacent to the road which was at least partially obscured by the improper grading and adjacent vegetation. These assertions do not specify the particulars of the negligence claim against BGE. Rather, the general allegations include a claim against BGE grounded on derivative liability, based on BGE’s failure to supervise its agents, and a claim of liability based on its own conduct.

In our view, it is not dispositive that the Corradettis failed to “allege facts which clearly bring the claim within or without the policy coverage,” Brohawn, 276 Md. at 408 , 347 A.2d 842 , as “ ‘any doubt as to whether there is a potentiality of coverage under an insurance policy is to be resolved in favor of the insured.’ ” Chantel, 338 Md. at 145 , 656 A.2d 779 (citation omitted). Indeed, in Sheets, the Court recognized that “[tjhere is an important difference between the duty to defend a lawsuit that affirmatively makes a claim that falls outside of the coverage of the policy, and the duty to defend a lawsuit that fails to allege the elements of a cause of action that if properly alleged and proven would be within the coverage of the policy.” Sheets, 342 Md. at 644 , 679 A.2d 540 . Moreover, the “duty to defend is broader than and different from the duty to pay.” Luppino v. Vigilant Ins. Co., 110 Md.App. 372, 381 , 677 A.2d 617 (1996).

Based on the complaint, we are amply satisfied that there was the potential ⁵⁶³ ity for coverage under the Commercial policy. Therefore, at least initially, Commercial had a duty to defend BGE in the Corradetti suit. Ultimately, the Corradettis chose to pursue their claim only against BGE, on the theory that BGE was solely responsible for the occurrence because of its own negligence. At the hearing on the motion to dismiss in the Corradetti case, the Corradettis expressly redefined their theory of BGE’s liability.

The following colloquy between court and counsel illustrates the Corradettis’ change in position. Counsel for C & P: Your Honor, as you’re already familiar with this case, it involves an accident where the Plaintiff backed into a pit, and the Plaintiff, through various complaints, ended up with an amended complaint against five defendants, all of whom are represented here today. * * # * * * Discovery as to liability, in my mind, has led to a point where C & P and the other Defendants, with the exception of BG & E, should be dismissed from the case. I submitted on Friday, a motion for dismissal pursuant to 2 — 506(b), because under 2-506(a), all defendants — all parties to the case must agree to the dismissal. sic sjs s¡« # jk Plaintiff, obviously, has reached a point where he is willing to dismiss all Defendants except BG & E, because the facts are clear that the splicing pit into which the Plaintiff