Transamerica Insurance v. Taylor

Clifford F. Brown, J. The question presented by this appeal is whether insurance companies may properly maintain a declaratory judgment action for purposes of determining their liability for coverage when [314] that question rests solely on a determination of whether the insured acted negligently or intentionally in causing the death of a third party, where this killing is the subject of a wrongful death action. For the following reasons, we hold that such an action may not be maintained. It is firmly established in this state that the duty of an insurance company to defend an action against its insured under a policy of liability insurance is absolute where the complaint brings the action within the coverage of the policy. Motorists Mutual v. Trainor (1973), 33 Ohio St. 2d 41 [62 O.O.2d 402], paragraph two of the syllabus. See, also, State Farm Fire & Cas. Co. v. Pildner (1974), 40 Ohio St. 2d 101 [69 O.O.2d 509], syllabus; Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St. 3d 177, syllabus. Appellants apparently concede that a declaratory judgment action is not available as a vehicle for evading their duty to defend under these facts. The basic purpose of the instant action is to obtain a declaration that the defendant Charles Taylor, Sr. is not an insured. If the plaintiff insurance companies succeed in obtaining such a declaration, a necessary result is that they will be relieved of their obligation to defend Taylor. In this regard, the case sub judice appears strikingly similar to Pildner, supra. In Pildner, the insured shot and injured a man and was convicted on criminal charges. The victim and his wife brought a civil action against the insured alleging negligent infliction of injury. The insurance company then instituted a declaratory judgment action maintaining that it had no duty to defend the insured on the basis that his conduct in causing the injury was intentional and thus excluded from coverage. In holding that the insurance company could not maintain that action, this court noted that the complaint in the victim’s suit alleged only negligent injury, and that liability for negligent injury was within the scope of the policy’s coverage. Thus, the insurer had a duty to defend, and its complaint for declaratory judgment was properly dismissed for failure to state a claim upon which relief can be granted “* * * since no facts giving rise to a justiciable controversy were presented in the complaint.” Id. at 104. In our view, the holding in Pildner is not strictly limited to the insurer’s obligation to provide a defense. In the instant case, as in Pildner, the insurers seek to avoid their obligation to the insured via a declaratory judgment action asserting that the insured had acted intentionally rather than negligently. As this court noted in Pildner, this assertion is utterly premature, since the underlying tort claim against the insured alleged only negligence. Although the insurers are not obligated to provide coveragé for intentionally inflicted injury, no such recovery is sought by the plaintiff in the wrongful death action. Thus, the complaint for declaratory judgment fails to state a claim upon which relief can be granted, since it presents no facts giving rise to a justiciable controversy. Pildner, supra, at 104. The insurers’ duty to defend is not a proper subject for a declaratory judgment action, and no question of intentional conduct has been raised in the underlying wrongful death suit. [315] If the plaintiff in the underlying tort action obtains a judgment against the insured, the insurers can still assert noncoverage by refusing to indemnify the defendant. The judgment creditor will then be forced to file a supplemental petition against the insurers, as provided in R.C. 3929.06, to collect her judgment. In that proceeding, the insurance companies may raise any defense that they would have against the insured. Bennett v. Swift & Co. (1959), 170 Ohio St. 168 [10 O.0.2d 109], paragraph one of the syllabus. In sum, we hold that where the complaint in the underlying tort action against the insured alleges only negligence, a declaratory judgment action brought by the tortfeasor’s insurers seeking a declaration that their insured’s conduct was intentional rather than negligent, and is thus excluded from coverage, presents no justiciable controversy and may properly be dismissed for failure to state a claim upon which relief can be granted. Accordingly, the judgment of the court of appeals is hereby affirmed. Judgment affirmed. Celebrezze, C.J., Sweeney and Locher, JJ., concur. Holmes, Douglas and Wright, JJ., dissent.