George ONeil and his wife, Antoinette, (the ONeils) filed a third-party demand against Farm Bureau specifically raising two claims; 1) Farm Bureau owed them a duty to defend and 2) coverage under the policy if it was held liable for injury to the ONeils. Farm Bureau filed a Motion for Summary Judgment asking the trial court to dismiss “all claims asserted” against it in the ONeils’ third-party demand. In support of its motion for summary judgment, Farm Bureau placed in evidence its policy language including Section II, Coverage E, which states (bold emphasis added):
If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies we will:
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false, or fraudulent. Our right and duty to defend ends when we have exhausted the applicable Limit of Liability in the payment of judgments or settlements.
At the outset of the hearing on the motion for summary judgment the attorney for the ONeils told the trial court:
Your Honor, this case, really there are two issues. One is[,] does the homeowners insurer have to provide a defense; and secondly, might there be liability and if there is liability might the homeowners insurer be responsible.
Farm Bureau did not object to this statement or make any assertion to the trial court that this was a mischaracterization of what was before the court. It insisted the trial court dismiss all claims made against it in the ONeils’ third-party demand based on its interpretation of the applicable policy exclusion. The trial court rendered judgment in favor of Farm Bureau dismissing all the ONeils’ claims raised in their third-party demand with prejudice. In its reasons for judgment the trial court wrote the following (emphasis added):
The following motion for summary judgment from Third Party Defendant Farm Bureau, was heard on August 19, 2019, seeking to have all of the claims against it dismissed based on the insurers policy excluding coverage.
The ONeils filed a Third-Party Demand against Farm Bureau, the insurer who provided the ONeils their homeowners policy, asserting the policy provided coverage and a defense against the Plaintiffs claims against the ONeils.
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Third Party Defendants motion for summary judgment declaring that the policy excludes coverage and dismissing all claims against it is granted.
Clearly, the trial courts ruling, appealed by the ONeils, addressed all claims made against Farm Bureau by the ONeils in their Third-Party Demand which included the claim that Farm Bureau provide the ONeils a defense as provided in the policy. The ONeils’ appeal to this court states the issue for our review as follows:
When an insured homeowner is attacked at his home and is forced to defend himself from the attack, but is later sued by the attacker for damages, does the law allow the homeowners insurer to deny insurance coverage and deny its’ insured a defense, under the policys “intentional act” exclusion?
At no time in the trial court or this court did Farm Bureau object to the references to the duty to defend issue or say that the issue was not before the court. It wanted all claims raised in the ONeils’ Third-Party Demand against it dismissed with prejudice. For the first time in its application for rehearing Farm Bureau asserts the issue of its duty to defend was not before us and we could not speak to it in our ruling. We reject this assertion. Our ruling stated there is potential coverage for the ONeils by their insurer. We correctly found the exclusion did not apply, thus, Farm Bureaus basis for dismissing the ONeils’ claim that it owed a duty to defend collapsed. Having resolved the coverage issue adverse to the insurer it necessarily follows that the insurer owes its insureds a duty to defend, particularly at this stage of the proceeding. Farm Bureau and the trial court tied both issues (duty to defend and coverage) to the determination of whether the policy exclusion applied. We clearly found it did not.
We also find that the insurers argument about what is contained in the four corners of the original petition is specious. The original petition included a claim against Mrs. ONeil (to whom the policy was issued) who is not alleged to have participated in the event in any way. The only basis for her alleged liability is the actions of Mr. ONeil, an insured under her policy. Mrs. ONeil can only be liable for Mr. ONeil’s actions if he did not commit an intentional wrong. La.Civ.Code Art. 2363 clearly provides “An obligation resulting from an intentional wrong ․ of a spouse is a separate obligation. . .” Thus, contrary to Farm Bureaus argument, the four corners of the petition include a basis for coverage (explicitly as to Mrs. ONeil and at the very least implicitly to Mr. ONeil) and ergo a duty to defend. For the reasons stated, we affirm our original decision in this matter.
REHEARING GRANTED. ORIGINAL OPINION MAINTAINED.
COOKS, Chief Judge.