This is an action by an insured against his liability insurer to recover a sum paid in settlement of an action against the insured plus the cost of defense in that case and his attorney fees in the present action. The insurance company appeals from a judgment for the insured.
The insurer issued plaintiff a storekeeper's liability policy which contained the following coverage:
The policy defined an "occurrence" as follows:
Plaintiff tendered the defense of the action to defendant which refused the tender because it claimed the complaint was based upon the intentional, wilful and malicious misconduct of plaintiff. Plaintiff then undertook his own defense and eventually settled the case. There is no issue concerning the reasonableness of the amount of the settlement or the cost of the defense.
The first issue raised upon appeal is whether the trial court erred in finding that defendant had a duty to defend plaintiff. Defendant contends the complaint against plaintiff alleges the commission of intentional acts which amount to an assault and battery and that such acts are not within the policy coverage because they amount to the intentional infliction of harm.
When a complaint is filed against the insured which alleges, without amendment, that the insured is liable for conduct covered by the policy, the insurer has the duty to defend the insured, even though other conduct is also alleged which is not within the coverage. Oakridge Comm. Ambulance v. U.S. Fidelity, 278 Or. 21, 24, 563 P.2d 164 (1977); Ferguson v. Birmingham Fire Ins., 254 Or. 496, 507, 460 P.2d 342 (1969); Blohm et al v. Glens Falls Ins. Co., 231 Or. 410, 414-15, 373 P.2d 412 (1962). The insurer owes a duty to defend if the claimant can recover against the insured under the allegations of the complaint upon any basis for which the insurer affords coverage. Oakridge Comm. Ambulance v. U.S. Fidelity, supra at 24, 563 P.2d 164; Casey v. N.W. Security Ins. Co., 260 Or. 485, 489, 491 P.2d 208 (1971). Insurance coverage for the protection of one who intentionally inflicts injury upon another is against public policy, and whether the insurer is relieved for this reason from the defense of an action against its insured depends upon the allegations of the complaint. Isenhart v. General Casualty Co., 233 Or. 49, 53-54, 377 P.2d 26 (1962). It is not sufficient that the insured's intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches. Snyder v. Nelson/Leatherby Ins., 278 Or. 409, 413-14, 564 P.2d 681 (1977); City of Burns v. Northwestern Mutual, 248 Or. 364, 369, 434 P.2d 465 (1967).
The application of these rules to plaintiff's complaint leads to the conclusion that there was a duty to defend. There are no allegations in the count in question from which it must be concluded that the insured or anyone else at his direction intentionally inflicted physical injury or emotional harm upon Mrs. Palin. There are some intentional acts the nature of which is such that it must necessarily be concluded that there was an intention to injure. However, the facts alleged against the insured were not of this nature. Neither is it significant that the alleged acts of the insured were unlawful. Mere unlawfulness of the act does not raise any necessary implication that it was the actor's intention to injure.
Defendant also complains that there is no allegation of negligence, the implication apparently being that if the acts are not negligent they must be intentional. There is nothing in the policy which limits coverage to negligent acts. It covers intentional
The only remaining assignment of error which it is necessary to consider is stated as follows:
Defendant is contending that the court erred in requiring defendant to pay the judgment (as differentiated from the costs of defense) because, assuming the duty to defend, the deposition, which was taken in Mrs. Palin's action against plaintiff, demonstrates that there was no coverage for her injuries because they were intentionally inflicted. The deposition was stipulated into evidence. Assuming, but not deciding, that by its failure to defend, defendant is not estopped to assert, nor has it waived its right to contend, that the acts of the insured were not within the coverage, the deposition does not demonstrate intentional injury of Mrs. Palin. It indicates that a door was forced open which hit her hand and badly bruised it, that she was jostled by one of the men while he was packing the clock out of the house, and that she was shoved away when she laid her hand upon plaintiff. However, there is no indication that any of these acts was done in such a manner or were of such a nature as to permit a conclusion that they were for the purpose of injuring her, as reprehensible as the men's forcing their way into her house and taking the clock may have been.
The judgment of the trial court is affirmed.