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[W] King v. Dallas Fire Insurance Company5/30/2002
OPINION WITHDRAWN; new opinion filed August 29, 2002.
CARLYLE KING, INDIVIDUALLY AND D/B/A TIEDOWN CONSTRUCTION COMPANY, PETITIONER
v.
DALLAS FIRE INSURANCE COMPANY, RESPONDENT
On Petition for Review from the Court of Appeals for the First District of Texas
The opinion of the court was delivered by: Craig T. Enoch Justice
Argued on October 10, 2001
In an underlying lawsuit, Greg Jankowiak sued Carlyle King, individually, and doing business as Tiedown Construction Company, for injuries he received when one of King's employees attacked him. In addition to a claim of respondeat superior, Jankowiak also sued King directly for negligent hiring, training, and supervision. In this case, King seeks to enforce the duty to defend contained in a commercial liability policy issued by Dallas Fire Insurance Company.
Our question is whether an employer's alleged negligent hiring, training, and supervision constitute an "occurrence" under the terms of the insurance policy although the injury was directly caused by the employee's intentional conduct. If the employer's alleged negligent hiring, training, and supervision constitute an "occurrence," then Dallas Fire must defend King. The trial court concluded that Dallas Fire did not owe King a duty to defend. The court of appeals affirmed in a divided opinion. Because we conclude there was an occurrence, we reverse the court of appeals' judgment and render for King. The issue of whether Dallas Fire would owe a duty to defend on only the vicarious liability claim is not before this Court, and we express no opinion on that issue.
I.
Carlyle King is the sole proprietor of Tiedown Construction Company, which removes excess materials from building sites. Dallas Fire Insurance Company insured King through a commercial general liability policy. Jankowiak, who was an employee of another company working on the same site as King, sued King, claiming that one of King's employees, Carlos Lopez, assaulted him. According to Jankowiak's petition, after confronting Lopez about some missing and damaged electrical wiring, Lopez attacked him, kicking him in the face and causing serious injury. Jankowiak also alleges that King was liable for the injuries, not only on the basis of respondeat superior, but also because of King's own negligence in hiring, training, and supervising Lopez. Jankowiak amended his petition and specifically alleged that King was negligent in failing to run a criminal-background check, in failing to determine whether Lopez had a propensity for violence, or in failing to provide any training on how to "peaceably and responsibly handle work generated construction site situations."
King forwarded Jankowiak's petitions to Dallas Fire, which refused to defend King because Jankowiak did not allege an "occurrence" within the meaning of King's insurance policy. King brought this declaratory judgment action, asking the trial court to determine that Dallas Fire was legally obligated to defend the underlying action against him. After considering cross-motions for summary judgment, the trial court concluded that Dallas Fire did not owe King a duty to defend. A divided court of appeals affirmed.
II.
The only question we are asked is whether, under the facts alleged in this case, there was an "occurrence" invoking the insurer's duty to defend. The duty to defend and the duty to indemnify are distinct and separate duties. An insurer's duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy. T
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