American Home Assurance Co. v. Ozburn-Hessey Storage Co.

OPINION O’BRIEN, Justice. This suit was initiated in the Chancery Court for Davidson County as a declaratory judgment action by plaintiff, American Home Assurance Company, against defendant, Ozburn-Hessey Storage Company. During all times pertinent to these proceedings American Home was an insurance company licensed and authorized to write insurance and conduct business within the State of Tennessee. It provided “warehouseman or bailee liability” insurance for Ozburn-Hessey Storage Company which conducted business as a warehouse operator with warehouses at several locations in the Nashville and Middle Tennessee area. The policies of insurance involved provided $2,000,000 of coverage with a $10,000 deductible for each “occurrence,” as that term was defined in the policies. In early 1980, Ozburn-Hessey contracted with the Trane Company to provide warehouse space and labor for storage and distribution of Trane’s products at defendant’s facilities in Nashville. Defendant received heating and air conditioning units and other goods from Trane and stored and distributed the goods at and from its facilities as agreed. In May of 1982, the Trane Company filed suit against Ozburn-Hessey in the Chancery Court for Davidson County, Tennessee styled “The Trane Company [673] v. Ozburn-Hessey Storage Company” Docket No. 82 — 913—III, alleging Ozburn-Hessey had damaged between 5,000 and 8,000 of its products during the warehousing operation between March of 1980 and December of 1981. In the fall of 1981 Trane made a claim for damaged units. Ozburn-Hessey notified American Home at the time the claim was made. Trane originally sought $347,-084 in damages and later amended its complaint to seek damages in excess of $500,-000. Ozburn-Hessey disputed the claim. American Home undertook the defense of the action. Ozburn-Hessey did not hire separate counsel to defend the case but relied solely and unconditionally upon the representation provided by American Home, pursuant to the terms of the policies. After some three years of litigation and negotiation, in January 1985, American Home negotiated a settlement with Trane under which it paid $450,000 for a release and discharge of the claim against Ozburn-Hessey. American Home alleged in this action against Ozburn-Hessey that it was entitled to reimbursement for the full $450,000, on the premise that it had no liability to Ozburn-Hessey under its policy because the Trane claim involved 5,925 separate “occurrences”, none of which exceeded the $10,000 deductible provided in its policy of insurance for each occurrence. Ozburn-Hessey defended the suit, denying liability to American Home, and subsequently moved for summary judgment on the ground that American Home undertook the defense of Ozburn-Hessey for approximately three (3) years ... without a reservation of rights. By doing so, American Home waived its right and was estopped to assert any grounds of non-liability under the policy on the claim asserted in the Trane lawsuit. The trial court granted the motion for summary judgment, finding there was no genuine issue as to any material fact. The court held that defendant was entitled to a judgment as a matter of law for the reason that American Home was estopped to deny liability under the insurance policy on the claim upon which the action was based. American Home took the case to the Court of Appeals presenting three issues: (1) Whether the Chancellor erred in holding that by furnishing a defense to Oz-burn-Hessey without a reservation of rights American Home was estopped to rely on its $10,000 policy deductible to deny liability? (2) Was it error to hold that there was no genuine issue of material fact as to whether Ozburn-Hessey was prejudiced because American Home provided a defense in the Trane litigation without a reservation of right? (3) Whether the Chancellor erred in holding that insurance protection not contained within the insuring portions of the insurance policy, not commonly available in the industry, may be created by estop-pel? The Court of Appeals pretermitted two of the issues posed and rendered its opinion on the sole issue of whether the trial court erred in holding that, by furnishing a defense to Ozburn-Hessey without a reservation of rights, American Home was es-topped to rely on its $10,000 policy deductible to deny liability. The intermediate court, citing from 44 Am.Jur.2d, Insurance, § 1423 (1982) found the general rule to be that: “Although there is authority to the contrary, if a liability insurer, with knowledge of a ground of forfeiture or noncov-erage under the policy, assumes and conducts the defense of an action brought against the insured, without disclaiming liability and giving notice of its reservation of rights, it is thereafter precluded in an action upon the policy from setting up such ground of forfeiture or noncov-erage. In other words, the insurer’s unconditional defense of an action brought against its insured constitutes a waiver of the terms of the policy and an estoppel of the insurer to assert such grounds. They found that Ozburn-Hessey relied on four (4) Tennessee cases which were in accord with the general rule,1 but each had [674] a common thread, i.e., there was either no coverage under the policy, or there had been a violation by the insured of a policy provision which would have brought about a forfeiture, and notwithstanding either lack of coverage or policy violations, the insurance company defended without a “non-waiver” or a “reservation of rights.” They held that this case did not fall into the samé category. They considered, and declined to apply, the rule that there is a presumed prejudice to an insured which estopped an insurer to assert a policy defense where the insurer defended without a “non-waiver” or a “reservation of rights”, even though the insurer had knowledge of a ground of forfeiture or noncoverage under the policy. They found that American Home was obligated to defend Ozburn-Hessey under the terms of the policy against the loss allegedly sustained by Trane Company, because there had been no violation of a policy provision by the insured, nor had it done anything that would have caused a forfeiture. They opined that, under the factual situation as stated, there was no presumption of prejudice by American Home’s failure to defend under a “reservation of rights” or “non-waiver”, and it was not estopped to assert the deductible provision of the policy. They remanded the case for trial. We granted the appeal by the defendant Ozburn-Hessey because we are of the opinion the Court of Appeals went astray in deviating from the general rule applicable in cases of this nature for the reasons stated in their opinion. The issues as couched here are as follows: (1)Whether the general rule — that a liability insurer is estopped from denying liability for a claim against its insured when it defends the insured without a reservation of rights — applies when the defense is provided pursuant to a contractual duty to defend? (2) Whether Ozburn-Hessey was presumably prejudiced or established actual prejudice as the result of American Home actions? (3) Whether American Home is estopped from denying liability on the disputed ground that the claim involves thousands of deductibles, which combined, consume the entire coverage of the policy? In considering the issues raised by the appellant here we find it appropriate to utilize the language of the intermediate court, that is, when an insurer who has a contractual duty to defend does so without a “non-waiver” or a “reservation of rights” is there such presumed prejudice to the insured that the insurer is estopped to rely on the deductible provision of the policy. The lower court held that because American Home was obliged to defend the suit initiated by the Trane Company there could not be any presumption that Ozburn-Hes-sey was prejudiced by the insurer’s failure to defend under a reservation of rights or a non-waiver. That conclusion is not defensible. The law in this State is clear. For at least the better part of a hundred years the rule has been recognized that an insurance company will not be permitted to deny liability under its indemnity policy, after it has taken charge of and conducted the defense of the claims asserted against its insured, without having reserved its rights by some form of agreement, stipulation or notice. See Fulton Co. v. Mass. Bonding and Insurance Co., 138 Tenn. 278, 285,197 S.W. 866 (1917); Hardware Mutual Casualty Co. v. Higgason, supra, 134 S.W.2d at 175. The rule applicable to the circumstances of this case, and which we consider to be the law in Tennessee is stated in Maryland Casualty Co. v. Gordon, supra, 371 S.W.2d at p. 4642 citing from 29A [675] AmJur. — Insurance—Sec. 1465, p. 577 [44 Am.Jur.2d, Insurance, § 1423, p. 369]: “The general rule supported by the great weight of authority is that if a liability insuror, with knowledge of a ground of forfeiture or noncoverage under the policy, assumes and conducts the defense of an action brought against the insured, without disclaiming liability and giving notice of its reservation of rights, it is thereafter precluded in an action upon the policy from setting up such ground of forfeiture or noncoverage. In other words, the insuror’s unconditional defense of an action brought against its insured, constitutes a waiver of the terms of the policy and an estoppel of the insured to assert such grounds.” The rule by its very language establishes the presumption of prejudice. Otherwise, there would be no necessity for its promulgation. Moreover, there was actual prejudice demonstrated in this case. Ozburn-Hessey was required under the terms of the policy to surrender its right to control the defense of the Trane litigation. It relied solely upon the judgment of American Home and its legal counsel in the conduct of the defense. It was not consulted in reference to strategy discussions. It was unable to assess the merits of the Trane claim, or the negotiations leading to the settlement which was made. It is certainly prejudiced by the demand upon it by American Home for payment of the sum of $450,000 having had no opportunity to rebut the evidence concerning the number of separate occurrences claimed by Trane which is now the basis of the insurer’s claim against it. American Home concedes, in fact insists, that it had a duty to defend the Trane claim against Ozburn-Hessey in accordance with the terms of its policy of insurance. The definition of “occurrence” under the terms of that policy is: “The term ‘Occurrence’, wherever employed in this Policy is defined as (1) an accident that takes place during the period of insurance under this Policy, or (2) in the absence thereof, a continuous or repeated exposure to conditions which unexpectedly cause loss or destruction of or damage to physical property during the period of insurance under this Policy, and all such exposure to substantially the same general conditions existing at or emanating from any one location specified in Part 2 of this Form shall be deemed one occurrence.” The insurer now seems to argue that there were 5,925 separate occurrences, which involved an average of a little under $76 in damage to each of the units, for which Trane claimed compensation from Ozburn-Hessey. Therefore, it was not liable under the terms of the policy since all the damage to the Trane items were caused by accident and there was no single accident which caused as much as $10,000 in damage, which was the deductible under the policy. It says that Ozburn-Hessey is asking the Court to create a policy of no deductible insurance, which would expose it to the potential risk of being required to pay far beyond the policy limits. Whatever the likelihood of that might be, that is not the issue in this case. The issue is whether American Home can assert that possibility so as to entitle them to reimbursement from Ozburn-Hessey for the full $450,000, without disclaiming liability or giving notice of its reservation of rights when it first made the determination that there were multiple accidents involved in the damage to the Trane units. It was under a duty to investigate. It withheld its interpretation of the term “occurrence” for some three years while it simultaneously defended and then settled the Trane claim without the knowledge or participation of Ozbum-Hes-sey in any of these proceedings. The dissent in this case appears to discredit the reasoning in the lead opinion [676] applying the general rule recognized in this State. The dissenting judge concedes the majority correctly states the general rule of law on the question, but takes the position that the rule is not dispositive of this case. At page 678, infra, the following statement is found: “American Home and Ozburn-Hessey reached full agreement regarding the resolution of the deductible clause question prior to settlement of the Trane lawsuit. To borrow the words of the Court of Appeals, this agreement ‘froze’ the rights of the parties with respect to each other as they existed on ... the date of the [ajgreement.” Acting pursuant to this agreement, American Home finalized the settlement and paid Trane for its loss. Having agreed to allow American Home to settle the Trane lawsuit “without such action being a waiver on the part of American Home Assurance Company of its rights under the insurance policies with Ozburn-Hessey Company,” Ozburn-Hessey cannot now be heard to complain about American Home’s continuation of the settlement negotiations. Having further agreed that questions relating to the number of deductibles owed by Ozburn-Hessey to American Home “are reserved for discussion and/or litigation between Ozburn-Hessey Company and American Home Assurance Company,” Ozburn-Hessey cannot now assert that American Home is estopped from raising those questions. The pertinent part of the agreement referred to is restated in the dissent. A superficial reading of it clearly demonstrates that it was not a final agreement between the parties. It was not agreed that American Home could finalize the settlement or pay Trane for its loss without consulting Ozburn-Hessey Company. It was agreed that “American Home Assurance Company may proceed to attempt to negotiate a settlement on behalf of Oz-burn-Hessey Company with The Trane Company pertaining to the above-mentioned law suit [TRANE v. OZBURN-HES-SEY] without such action being a waiver on the part of American Home Assurance Company of its rights under the insurance policies with Ozburn-Hessey Company.” It also contains the provision, “your client, [Ozburn-Hessey Company] of course, is also not waiving any of its rights under the policies pertaining to those issues by virtue of this agreement." (Emphasis supplied). Any rights of the parties frozen by the agreement were fixed by the long passage of time which preceded it. Under the law in this State and the facts of this case the waiver by American Home had occurred long before the letter from counsel, dated 25 January 1985, setting out the proposed agreement. This agreement says no more than the insuror would attempt to reach a settlement. It does not state in any fashion that Ozburn-Hessey waived its right to approve or disapprove any settlement reached. To the contrary it contains the specific provision that it was not waiving any of its rights under the policies pertaining to the issues of the number of insurance policies applicable to the Trane lawsuit, and the number of deductibles and total dollar amount which might be required of it to be contributed to American Home after settlement. Insofar as this record reveals, American Home proceeded with the settlement without consultation with its insured, made payment to the claimant and then filed suit against the insured for the full amount of the settlement. We are of the opinion the trial court acted correctly in granting the motion for summary judgment of Ozburn-Hessey and dismissing the cause of action filed by American Home. The judgment of the Court of Appeals overruling the trial court is reversed. The judgment of the trial court is reinstated. Costs are assessed against plaintiff-appellant American Home Assurance Company. DROWOTA, FONES and HARBISON, JJ., concur. DAUGHTREY, J., filed a separate dissenting opinion. Footnotes [1] Hardware Mutual Casualty Co. v. Higgason, 175 Tenn. 357, 378, 134 S.W.2d 169, 176-77 [674] (1939); Maryland Casualty Co. v. Gordon, 52 Tenn.App. 1, 10-12, 371 S.W.2d 460, 464 (1963); TransAmerica Insurance Group v. Beem, 652 F.2d 663 (6th Cir.1981); Commercial Standard Ins. Co. v. Blankenship, 40 F.Supp. 618, 620 (M.D.Tenn.1941), Aff'd. 134 F.2d 784 (6th Cir. 1943). [2] This was a second suit in which Maryland Casualty, the insurer, and Paul Southerland, the insured, were involved. In the first case the insurer defended the insured, and his stepson, without any reservation of rights, in a suit for damages resulting from an automobile accident. In the second case the judgment creditors proceeded directly against Maryland Casualty to recover their judgment against the stepson, who [675] was an additional insured under the policy. The insurer defended on the basis of false representations made in the application for the policy, and no insurable interest. The Court of Appeals held that the insurer had notice, when the policy was issued, that the minor stepson, and not the named insured would drive the insured automobile. They held Maryland Casualty liable under its policy because it accepted notice of the original accident, investigated it and defended the resulting lawsuits without any reservation of rights.