Preferred Mutual Insurance Co. v. Gamach

686 N.E.2d 989 (1997)

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Nature of the Case

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Facts

Officer Andrade and others were dispatched to the scene of a fight on September 10, 1991. When they arrived at the scene, they immediately discovered a person lying on the ground holding his head and nearby on the grass stood Gamache bleeding from an injury to his head. Gamache yelled and swore at the officers, and he attempted to keep them at bay by swinging his arms and kicking his feet. Eventually, in the efforts to subdue Gamache, Officer Andrade's knee was injured. Andrade sued Gamache for that injury alleging that the negligent, reckless, and or wanton conduct of Gamache caused Andrade's injury. Gamache was insured as a household member under his parent's homeowner's policy with Preferred. Preferred refused to defend Gamache despite notice of the civil action. Judgment was entered for Andrade against Gamache for $75,000. Preferred (P) then instituted a declaratory action against Gamache (D), and the trial court found that P had no duty to defend or to indemnify D in connection with the tort action by Andrade. D appealed and the appeals court found that P had a duty to defend D and had violated that duty and that a genuine issue of material fact existed as to D's intent as it relates to the tort against Andrade and it must be determined whether P is liable for indemnity to D. P applied for further review.