Brohawn v. Transamerica Insurance

Eldridge, J., delivered the opinion of the Court. This case presents the question of whether an insurer is entitled to a declaratory judgment that if has no obligation ³⁹⁸ to either defend or indemnify its insured in actions brought by injured third parties based on alternative allegations of negligence and assault. The policy specifically excludes from coverage any act committed by the insured with the intent to injure, and the insured had pleaded guilty to assault in a previous criminal action arising from the same incident. In November 1970 Mary Brohawn, the insured, and Martha Schmidt, her sister, went to a nursing home in Cumberland,.

Maryland, where their grandmother, Ethel Rosier, resided. The two women, accompanied by Mrs. Brohawn’s son, Mark, planned to take Mrs. Rosier from the home because, as Mary Brohawn claimed, the director of the home told her sister “to come up and get my grandmother within thirty days or he was going to set her out in the street.” Because of their activities at the nursing home, both Mrs. Brohawn and Mrs. Schmidt were charged in the Circuit Court for Garrett County with the assault of two nursing home employees and with the kidnapping of their grandmother, Mrs. Rosier. Testimony heard by the court before accepting guilty pleas from the women revealed conflicting accounts of what occurred at the nursing home. Regina Gank, an employee of the home, testified that the Brohawn group arrived at the nursing home at lunch time.

Mrs. Gank requested that the group wait until lunch was over to see Mrs. Rosier. Mrs. Brohawn and Mrs. Schmidt did wait as requested but, after lunch was over, proceeded to get Mrs. Rosier and take her out of the building. Mrs. Gank informed another employee, Clara Shaffer, that a patient was being taken from the home. Mrs. Gank and Mrs. Shaffer found Mrs. Brohawn and Mrs. Schmidt leading their grandmother down the front steps of the home.

Each woman was on either side of Mrs. Rosier holding her up because she could not walk well by herself. Mrs. Shaffer and Mrs. Gank tried to prevent the party from leaving by grabbing Mrs. Rosier. Mrs. Gank testified that Mark Brohawn “hauled off around and hit me.” Mrs. Gank then saw Mrs. Shaffer falling down the steps, and she took her hand off Mrs. Rosier so that she could catch Mrs. Shaffer. Mrs. Shaffer testified that she and Mrs. Gank tried to ³⁹⁹ prevent the Brohawn party from leaving the home with their grandmother.

According to her testimony, she and Mrs. Gank grabbed Mrs. Rosier by the arm as Mrs. Rosier was going out the front door. Mrs. Shaffer realized that Mrs. Rosier had difficulty in walking alone, but nonetheless she and Mrs. Gank struggled with Mrs. Schmidt and Mrs. Brohawn who were holding Mrs. Rosier. As they struggled, Mrs. Shaffer was “jerked around by the uniform and fell against the armrailing and hit my side and on down to the bottom floor.” Mrs. Shaffer indicated that she was aware of the fact that Mrs. Rosier’s family had spoken to the director and were planning to take her from the home. Mary Jane Friend, another employee of the home, testified that she attempted to stop Mrs. Schmidt and Mrs. Brohawn as they led Mrs. Rosier from her room.

She claimed that Mrs. Brohawn hit her on the arm and knocked her into a coat rack. She also claimed that she saw Mark Brohawn hit Mrs. Gank, but she did not see any altercation between Mrs. Brohawn and her sister on the one hand and Mrs. Gank and Mrs. Shaffer on the other. Mrs. Friend also testified that Mrs. Rosier could not walk well by herself and that both Mrs. Schmidt and Mrs. Brohawn were holding Mrs. Rosier as they were going down the steps. Mary Brohawn denied that either she or Mrs. Schmidt hit anyone or that any altercation took place.

The only physical contact which occurred, according to her, was when Mrs. Gank placed her arm on Mark Brohawn’s shoulder, which he shrugged off. She also testified that it was cold and snowing that day and that there was snow on the pavement. As a result of plea bargaining, both Mrs. Brohawn and Mrs. Schmidt pleaded guilty to the assault charges, and the kidnapping charges were dismissed. Both were given a suspended 30-day sentence and fined $100 and costs.

Mrs. Shaffer and Mrs. Friend each filed suit in September 1971 in the Circuit Court for Garrett County alleging that Mrs. Brohawn and Mrs. Schmidt did “with force and arms, willfully and maliciously and without any just cause or provocation” assault them, resulting in “serious, painful and permanent injuries.” Both compensatory and punitive ⁴⁰⁰ damages were sought. Amended declarations adding a second count alleging negligence and seeking compensatory damages only were filed in November 1971. The actions were removed to the Circuit Court for Allegany County but have not yet been tried. Superior Risk Insurance Company issued to Mary Brohawn and her husband a homeowner’s policy which included “Comprehensive Personal Liability” coverage effective from June 11, 1969, to June 11, 1972.

Transamerica Insurance Company acquired the policy in 1969. 1 The insurer’s obligation under the “Comprehensive Personal Liability Section” is set out in the “Insuring Agreements” as follows: “a. Coverage E — Personal Liability. To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this Section, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.” (Emphasis supplied.) This section, however, is subject to certain “Exclusions” which provide in pertinent part: “c. to any act committed by or at the direction of the Insured with intent to cause injury or damage to person or property.” Transamerica was notified of the original tort suits but denied coverage- and refused to defend because the declarations alleged-intentional acts within the policy exclusion. Mrs. Brohawn’s attorney promptly informed Transamerica of the amended declarations alleging ⁴⁰¹ negligence and again requested that Transamerica defend.

In a letter dated March 14, 1972, Transamerica informed Mrs. Brohawn that it was investigating the incident and had secured counsel to defend the suits but that such action on its part was not a waiver of any conditions of the policy or its right to deny coverage under the policy exclusions. Mrs. Brohawn was also advised that, inasmuch as the damages claimed exceeded the limits of liability coverage provided by the policy, she could have her personal attorney participate in the defense of the tort suits. Transamerica filed this action for a declaratory judgment in the Circuit Court for Allegany County, alleging that after review of the interrogatories filed by Mrs. Shaffer and Mrs. Brohawn in the tort suits, and in light of the guilty plea in the criminal action, it concluded that the acts allegedly committed by Mrs. Brohawn were intentional and therefore excluded from coverage. Named as defendants in the declaratory judgment action were the insured Mrs. Brohawn, her sister Mrs. Schmidt, and the plaintiffs in the tort suits, Mrs. Shaffer and Mrs. Friend.

Transamerica sought a declaratory judgment that it had “no coverage under the policy hereinabove set forth or any liability that may be adjudicated against [the] Defendant Mary Brohawn . . . for injuries to defendants Shaffer and Friend as a result of any acts committed by Defendant Brohawn on or about November 24, 1970, and which are the subjects of the suits hereinabove described.” Transamerica also requested that it be “relieved of any obligation to defend” Mrs. Brohawn in the pending suits. Additionally, it sought to enjoin Mrs. Shaffer and Mrs. Friend from prosecuting the tort suits pending resolution of the coverage and defense questions in the declaratory judgment action. Mrs. Brohawn responded by, inter alia, seeking an order “that the Plaintiff be obliged to defend the said actions under its policy and to pay any damages afforded for actions covered by the policy.” A hearing was held in the declaratory judgment action, after which the court (Getty, J.) denied the relief sought by Transamerica. In its order, the circuit court held that the question of coverage would be “determined by the jury’s ⁴⁰² verdict [in the tort suits] on issues submitted as to the manner in which the injuries, if any, were sustained .. ..” The court also ordered Transamerica to defend Mrs. Brohawn “under the non-waiver agreement executed between the parties.” 2 The Court of Special Appeals sitting in banc, in a 7 - 2 decision, with Judge Lowe dissenting in an opinion joined by Judge Davidson, reversed the order of the circuit court and remanded the case to the circuit court, holding that the question of whether any injuries sustained were the result of intentional or negligent conduct should be decided in a declaratory judgment action prior to the trial of the tort suits.

The Court of Special Appeals also noted that any determination in the declaratory judgment action would be res judicata in the pending tort suits, leaving only the question of damages to be resolved in the tort suits in the event that Mrs. Brohawn and Mrs. Schmidt were to be found liable in the declaratory judgment action. The Court of Special Appeals also found that if it were determined in the declaratory judgment action that Mrs. Brohawn did not injure the plaintiffs or that any injuries sustained by the plaintiffs were the result of Mrs. Brohawn’s negligent conduct, Transamerica would be liable for reasonable counsel fees and expenses incurred by her in the declaratory judgment action. Because of the importance of the questions presented, this Court granted Mary Brohawn’s petition for a writ of certiorari. ⁴⁰³ (1) The first issue raised is whether the trial court erred in denying Transamerica’s request for a declaratory judgment that it not be required to indemnify Mrs. Brohawn for any damages for which she may become liable to Mrs. Shaffer and Mrs. Friend in the pending tort suits. Transamerica contends that Mrs. Brohawn’s acts were intentional and therefore excluded from policy coverage.

It relies on Mrs. Brohawn’s plea of guilty in the criminal assault action and her failure to rebut this plea at the hearing in the declaratory judgment action. The trial court found that the plea was not conclusive on the question of whether any injuries were intentionally inflicted and found that there was sufficient evidence for a jury to find either that the plaintiffs sustained no injuries or that such injuries were caused by Mary Brohawn’s negligence. It also concluded that a declaratory judgment action would not be appropriate, as the factual issues relied upon to deny coverage would be resolved by the jury in the pending tort suits. A plea of guilty to a criminal charge may be introduced in a subsequent civil proceeding as an admission.

Campfield v. Crowther, 252 Md. 88, 100 , 249 A. 2d 168 (1969). But this admission does not conclusively establish liability. Instead, it may be rebutted or explained in the subsequent civil case in which it is admitted. Nicholson v. Snyder, 97 Md. 415,425 , 55 A. 484 (1903); Teitelbaum Furs, Inc. v. Dominion Insurance Company, 58 Cal. 2d 601 , 25 Cal.

Rptr. 559 , 375 P. 2d 439, 441 (1962); Farm and City Insurance Company v. Hassel, 197 N.W.2d 360, 364 (Iowa 1972); Glens Falls Group Insurance Corp. v. Hoium, 294 Minn. 247 , 200 N.W.2d 189, 191-192 (1972). Justice Traynor, for the Supreme Court of California, explained the reasons underlying this rule in the Teitelbaum case ( 375 P. 2d at 441 ): “When a plea of guilty has been entered in the prior action, no issues have been ‘drawn into controversy’ by a ‘full presentation’ of the case. It may reflect only a compromise or a belief that paying a fine is more advantageous than litigation. Considerations ⁴⁰⁴ of fairness to civil litigants and regard for the expeditious administration of criminal justice ... combine to prohibit the application of collateral estoppel against a party who, having pleaded guilty to a criminal charge, seeks for the first time to litigate his cause in a civil action.” Consequently, Mrs. Brohawn should be given an opportunity to explain her plea of guilty to the assault charge in the pending tort actions.

While Transamerica concedes that a guilty plea may be rebutted or explained in a subsequent civil action, it contends that the plea here is conclusive because Mrs. Brohawn herself failed to explain or rebut the plea at the hearing in the declaratory judgment proceeding. We find no merit to this contention. Evidence was offered at the hearing on the petition for the declaratory judgment that the plea was the result of plea bargaining and was not an admission of actually striking either Mrs. Friend or Mrs. Shaffer. Additionally, Mrs. Brohawn testified at the criminal trial that there was no altercation and likewise denied in her answers to interrogatories in the tort action, which were introduced in the declaratory judgment hearing, that there was any physical contact with Mrs. Shaffer or Mrs. Friend.

Nevertheless, Transamerica maintains that a dispute concerning coverage still exists and that this question should have been determined by the trial court in the declaratory judgment action. A declaratory judgment would, it argues, resolve any questions common to all the parties concerning their respective rights and obligations. In support of this contention, Transamerica relies on language in Glens Falls Ins. v. Amer. Oil Co., 254 Md. 120 , 254 A. 2d 658 (1969), where this Court suggested that when questions involving policy coverage arise, a declaratory judgment action prior to trial of the third party suit may be desirable to resolve those questions.

Although in many instances a declaratory judgment prior to trial of a pending action would be appropriate, we do not believe the circumstances here present such a situation. ⁴⁰⁵ A declaratory judgment action prior to the trial of a tort action against the insured may under some circumstances be a valuable means of resolving questions of policy coverage where those questions are independent and separable from the claims asserted in a pending suit by an injured third party. An early resolution could avoid unnecessary expense and delay to the parties. Thus, where an insurance company claims lack of coverage because of the insured’s failure to comply with contract provisions such as the cooperation or notification clause, or failure to pay premiums, a declaratory judgment would ordinarily be appropriate and should be granted. See Prashker v. United States Guarantee Company, 1 N.Y.2d 584 , 136 N.E.2d 871, 875 (1956); Employers’ Fire Insurance Company v. Beals, 103 R. I. 623, 240 A. 2d 397, 401 (1968).

But here, Transamerica seeks to have resolved in a declaratory judgment proceeding questions which would be fully decided in pending tort actions. In Grimm v. Co. Comm’rs of Wash. Co., 252 Md. 626 , 250 A. 2d 866 (1969), we held that the trial court did not abuse its discretion in dismissing a bill for declaratory relief where the issues to be raised in the declaratory judgment proceeding would be decided in a pending criminal action. As stated in Grimm v. Co. Comm’rs of Wash.

Co., supra, 252 Md. at 637, quoting with approval Borchard, Declaratory Judgments (2d ed. 1941): “Where an action or proceeding is already pending in another forum involving the same issues, it is manifestly unwise and unnecessary to permit a new petition for a declaration to be initiated by the defendant or the plaintiff in that suit.” “[T]he court will refuse a declaration where another court has jurisdiction of the issue, where a proceeding involving identical issues is already pending in another tribunal, where a special ⁴⁰⁶ statutory remedy has been provided, or where another remedy will be more effective or appropriate under the circumstances. In these cases it is neither useful nor proper to issue the declaration. In some of these cases, * * * the declaration is refused on jurisdictional grounds. In others, the refusal is justified on discretionary grounds.” If the issue upon which coverage is denied were not the ultimate issue to be determined in a pending suit by a third party, a declaratory judgment would be appropriate.

But where, as here, the question to be resolved in the declaratory judgment action will be decided in pending actions, it is inappropriate to grant a declaratory judgment. See also Watson v. Dorsey, 265 Md. 509, 512, n. 1 , 290 A. 2d 530 (1972). Moreover, under the Uniform Declaratory Judgment Act, Code (1974), § 3-409 of the Courts and Judicial Proceedings Article, it is within the discretion of the court whether a declaratory judgment should be granted. In the exercise of its discretion the court should consider several factors including the effect of granting a judgment on the rights of all parties to the action.

If the granting of the judgment would unduly inconvenience or burden the parties, or allow one party to wrest control of the litigation from another and cause a confusing alteration of the burden of proof, the court should refuse to grant the relief sought. Employers’ Fire Insurance Company v. Beals, supra, 240 A. 2d at 401 . Under such circumstances, granting a declaratory judgment would constitute an abuse of discretion. This principle is applicable here.

Allowing Transamerica to litigate the question of whether any injuries were intentionally inflicted would permit it, and not Mrs. Shaffer and Mrs. Friend, the plaintiffs in the tort suits, to control the litigation. Transamerica would assume the burden of establishing not only that Mrs. Shaffer and Mrs. Friend were in fact injured but also that they were injured intentionally, exposing its insured Mrs. Brohawn to potential punitive damages. And Mrs. Brohawn would be forced not only to defend against ⁴⁰⁷ the allegations of Mrs. Shaffer and Mrs. Friend, but also against the vast resources and expertise of her insurer who would be trying to prove that which was its contractual duty to disprove. When we suggested in Glens Falls that a declaratory judgment action might be the most efficient and expeditious means of resolving policy coverage disputes, we also recognized that the policy of due process and fairness “may override any considerations of efficiency or expediency served by the minimization of litigation.” Glens Falls, supra, 254 Md. at 134 .

The essential unfairness to Mrs. Shaffer and Mrs. Friend of allowing Transamerica to prosecute their case, and the harsh burden of forcing Mrs. Brohawn to defend against a third plaintiff, far outweigh any possible advantages advanced by Transamerica in support of granting declaratory relief. Under these circumstances, the trial court correctly denied the declaratory judgment sought by Transamerica. General of America Insurance Co. v. Lilly, 258 Cal.App.2d 465 , 65 Cal. Rptr. 750, 755 (1968); United States Fidelity & Guaranty Co. v. Watson, 106 Ga.

App. 748 , 128