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Court of Appeals of North Carolina
August 29, 1989, Heard in the Court of Appeals ; January 4, 1990, Filed
[*636] [**763] The question presented by this appeal is whether the trial court erred in entering summary judgment for plaintiff because plaintiff's insurance policy excluded coverage for liability resulting from the wrongful death action. ] Summary judgment is appropriate [*637] when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 690, 340 S.E.2d 374, 377 (1986). It is undisputed in this case that plaintiff's policy required defendant to provide a defense in lawsuits based upon covered claims. By refusing to defend the wrongful death action, defendant obligated [***4] itself to pay the amount and costs of a reasonable settlement if its refusal was unjustified. Nixon v. Insurance Co., 255 N.C. 106, 112-13, 120 S.E.2d 430, 434 (1961); Ames v. Continental Casualty Co., 79 N.C. App. 530, 538, 340 S.E.2d 479, 485, disc. rev. denied, 316 N.C. 730, 345 S.E.2d 385 (1986). In the proceedings below, defendant admitted that plaintiff settled the action for $ 75,000.00 and paid $ 3,521.12 for legal fees and expenses in defending the action. Defendant has not challenged the reasonableness of the settlement in this action; therefore, we need not consider the issue. See Wilson v. State Farm Mut. Auto. Ins. Co., 92 N.C. App. 320, 326, 374 S.E.2d 446, 450 (1988).
The sole remaining issue is whether the policy required defendant to defend the wrongful death action. ] Since this issue is determined by interpreting the language of the policy, it is a question of law which may be resolved by summary judgment. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. at 691, 340 S.E.2d at 377. [***5] The insurer's duty to defend is determined by the pleadings in the underlying lawsuit. Id. The duty to defend exists if the events alleged in the pleadings are covered under the terms of the policy, and any doubt as to [**764] coverage must be resolved in favor of the insured. Id. at 693, 340 S.E.2d at 378. If the claim is within the coverage of the policy, the insurer's refusal to defend is unjustified even if it is based upon an honest but mistaken belief that the claim is not covered. Indiana Lumbermen's Mutual Ins. Co. v. Champion, 80 N.C. App. 370, 376, 343 S.E.2d 15, 19 (1986).
Plaintiff's basic policy excludes coverage for liability resulting from performing or failing to perform professional services. The general exclusion is modified by the following endorsement:
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96 N.C. App. 635 *; 386 S.E.2d 762 **; 1990 N.C. App. LEXIS 9 ***
DUKE UNIVERSITY v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY
Prior History: [***1] Appeal by defendant from judgment entered 17 November 1988 by Judge Henry W. Hight, Jr. in Durham County Superior Court.
coverage, professional services, chair, dialysis, casters, wrongful death action, failure to provide, insured, courts, skills
Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appeals, Summary Judgment Review, General Overview, Genuine Disputes, Materiality of Facts, Torts, Wrongful Death & Survival Actions, Defenses, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Question of Law, Ambiguous Terms, Construction Against Insurers, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Business Insurance, Commercial General Liability Insurance, Exclusions, Exclusions, Intentional Acts, Elements, Causation, Types of Insurance, Malpractice & Professional Liability Insurance, Malpractice & Professional Liability, Healthcare Providers