Johnson v. First State Insurance

Opinion

GILBERT, J.

A lawyer brings an action against his professional liability insurance carrier for failure to defend him in a malicious prosecution action. We hold there was no duty to defend where the malicious prosecution action

[1081]

arose from a conspiracy action the lawyer brought on his own behalf. We affirm.

Facts

Johnson and his firm were sued for malpractice by Underwriters at Lloyd’s of London, Orion Insurance Company, Ltd., Victoria Insurance Company, Ltd., Minster Insurance Company, Ltd., London and Overseas Insurance Company, Ltd., and Phoenix Insurance Company, Ltd. That action stemmed from allegedly negligent advice concerning the duty to defend in a wrongful death action.

Later Johnson brought an action against approximately 100 insurance and related companies. Included among the defendants were Rollins Burdick Hunter Company (Rollins), an insurance broker. The complaint alleged the malpractice action was part of a series of collusive lawsuits in furtherance of a conspiracy among the defendants to suppress and conceal the existence of insurance coverage.

Johnson was represented in the conspiracy action by the law firm of Grover A. Perrigue III. Johnson was also an employee of the firm and worked on his own case.

After Rollins was dismissed from the conspiracy action, it sued Johnson and Perrigue for malicious prosecution. Johnson and Perrigue had professional liability insurance with First State Insurance Company and New England Reinsurance Corporation (collectively, First State).

The policy provided in part:

“I - Insuring Clauses

“A - Professional Liability and Claims Made Clause: To Pay on behalf of the insured all claim expenses and all sums in excess of the deductible that the insured shall become legally obligated to pay as damages as a result of claims first made against the insured during the Policy Period:

“1). by reason of any act, error or omission in professional services rendered or which should have been rendered by the Insured or by any person for whose acts, errors or omissions the insured is legally responsible: or