Allen v. Cont'l Western Ins. Co.

Allen v. Cont'l Western Ins. Co.

Opinion

en banc

 [*550]  A payday and title lending company, Franklin Quick Cash, LLC, ("Franklin"), was sued for wrongfully repossessing a vehicle. In this subsequent action, Franklin has sued Continental Western Insurance Co. ("Continental Western") to recover the costs of litigating that wrongful repossession suit because Continental Western refused to provide a defense. Franklin's claim for costs is based on a commercial general liability insurance policy that covers liability for "accidents" but excludes coverage of liability for property damage "expected or intended" by the insured. The circuit court ruled that Continental Western had a duty to defend Franklin in the wrongful repossession suit and granted Franklin's motion for summary judgment. This Court holds that [**2]  Continental Western did not have a duty to defend. Because Franklin intended to repossess the vehicle, there was no potential for coverage under the policy at the outset of the underlying case. The circuit court's judgment is reversed, and judgment is entered for Continental Western.

Factual Background

Stephanie Whipple filed the underlying lawsuit against Franklin.¹ Whipple claimed that Franklin unlawfully took possession of Whipple's 1998 Plymouth Voyager on two separate occasions. Whipple's original petition alleged, in two counts of conversion, that Franklin "intended to exercise control over" her Voyager and "deprived [her] of possession and control" without her authorization.

Franklin requested that Continental Western defend it in the Whipple lawsuit pursuant to a commercial general liability insurance policy that it had purchased from Continental Western for $250 per year. The policy covers liability for "property damage" resulting from an "accident," but it does not cover liability [**3]  for "property damage" that is "expected or intended from the standpoint of the insured." Continental Western informed Franklin that Whipple's claims were not covered by the policy because its repossession of her Voyager was intentional, and Continental Western declined to provide a defense.

Whipple then amended her petition to add two counts of "Negligence." Both of the new counts alleged that the "aforesaid conduct was negligent"—but that was the  [*551]  only new allegation. The new counts otherwise "reallage[d] and incorporate[d] by reference" allegations from the two conversion counts. This included the allegation that Franklin "intended to exercise control over" Whipple's Voyager.² After Whipple filed her amended petition, Franklin again requested a defense from Continental Western. Continental Western again informed Franklin that Whipple's claims were not covered by the policy because Franklin's actions were intentional and declined to provide a defense.

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