17 Wn. App. 331, INSURANCE CO. v. INSURANCE CO.
CITE:          17 Wn. App. 331, 562 P.2d 1004
               INSURANCE CO. v. INSURANCE CO.
CAUSE NUMBER: 4276-1
FILE DATE:     April 11, 1977
CASE TITLE: Insurance Company of North America, Respondent, v.
               Insurance Company of the State of
               Pennsylvania, Appellant, Leland Carlisle,
               et al, Respondents.

[1] Insurance - Duty To Defend - Determination - Investigation by Insurer. An insurer's duty to defend its insured in a particular action arises when a complaint is filed alleging an injury falling within the insurance policy's coverage. When the allegations do not describe the character of the claim clearly enough to determine potential insurance liability, the insurer has a duty to examine the facts involved before refusing the defense.

[2] Insurance - "Use" of Aircraft - Cigarette Smoking. Injury which results from an aircraft pilot's negligent smoking or extinguishing of a cigarette while operating the aircraft arises from the "use" of the aircraft within the meaning of a liability insurance policy covering the aircraft.

[3] Insurance - Costs - Attorneys' Fees - Insurer's Refusal To Defend. An insurance company which wrongfully refuses to defend an action for injuries which are within its policy coverage is liable not only for the damages which may be awarded in such action but also for reasonable attorneys' fees and incidental costs incurred in defending the action.

NATURE OF ACTION: A helicopter company's general liability insurer defended the company in a wrongful death action after the company's aviation insurer refused a tender of the defense, and brought this action to determine the insurers' respective rights following entry of a judgment against the company in that action. The death resulted from a fire caused by a company pilot's attempt to extinguish a cigarette on a helicopter fuselage while operating in a high risk fire area. The general liability policy excluded and the aviation policy included coverage for injuries arising from the use of the aircraft.

Superior Court: A summary judgment in the plaintiff's favor requiring the defendant aviation insurer to pay the plaintiff's defense costs and the wrongful death judgment was entered by the Superior Court for King County, No. 801486, Frank H. Roberts, Jr., J., on November 12, 1975.

Court of Appeals: The aviation insurer is found to have had a duty to defend in the action, the incidentals of cigarette smoking in the helicopter being held to arise from its "use" as that term is employed in both policies, and the trial court judgment is AFFIRMED.

COUNSEL: REED, MCCLURE, MOCERI & THONN, P.S., and WILLIAM R. HICKMAN, for appellant.

MERRICK, HOFSTEDT & LINDSEY, THOMAS v. HARRIS, ROBERTS, SHEFELMAN, LAWRENCE, GAY & MOCH, D. A. BENNETT, and ROBERT B. SHERWOOD, for respondents.

Insurance Company of North America brought this declaratory judgment action against Insurance Company of the State of Pennsylvania and others to determine which of them was responsible for liability coverage and the duty to defend a wrongful death action against EMCO Helicopters, Inc., which both companies insured. All parties moved for summary judgment; the trial court granted North America's motion and ordered Pennsylvania to pay North America its defense costs and the judgment rendered against EMCO in the wrongful death action. Pennsylvania appeals.

The facts are these. On July 16, 1973, a pilot of EMCO, while operating a helicopter in a high danger fire area, attempted to extinguish a cigarette on the exterior of the helicopter's fuselage. A forest fire resulted. Subsequently, a helicopter owned by a different company fell upon and killed Clayton D. Carlisle, who was fighting the fire on foot. Carlisle's personal representative commenced an action against EMCO and others. Defense of the action was tendered to North America, EMCO's comprehensive general liability and airport liability carrier, and to Pennsylvania, which had issued EMCO an aviation policy. Pennsylvania refused the tender; North America accepted under a reservation of rights and defended the action, which resulted in a money judgment in favor of Carlisle and against EMCO.

"AGREES to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.

North America's policy provides EMCO with general liability coverage, but contains this exclusion:

"This insurance does not apply: (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any . . . aircraft owned or operated by . . . the Named insured, or (2) any . . . aircraft operated by any person in the course of his employment by the Named insured.

Pennsylvania's first contention is that it had no duty to defend the action brought against EMCO or to provide liability protection because the complaint did not allege liability within the terms of the coverage. The critical allegation in the complaint against EMCO is that:

" The fire . . . was started by the defendant EMCO Helicopters, Inc.'s negligence, in that one of its employees acting within the scope and duties of his employment carelessly and negligently failed to extinguish a cigarette, which cigarette ignited forest debris and resulted in the fire.

" It is well established in this and other jurisdictions that the insurer's duty to defend, unlike its duty to pay, arises when the complaint is filed and is to be determined from the allegations of the complaint. HOLLAND AMERICA INS. CO. v. NATIONAL INDEM. CO., 75 Wn.2d 909, 911, 454 P.2d 383 (1969). However, if the allegations of the third party's complaint are inadequate to determine the character of the claim, the facts giving rise to the potential liability must be investigated. TRANSAMERICA INS. GROUP v. CHUBB & SON, INC., 16 Wn. App. 247, 554 P.2d 1080 (1976); HARTFORD ACCIDENT & INDEM. CO. v. CIVIL SERV. EMPLOYEES INS. CO., 33 Cal. App. 3d 26, 108 Cal. Rptr. 737 (1973). The question of whether Pennsylvania's insurance actually covered the event could only be determined by an examination of the facts because the circumstances of the negligent failure to extinguish the cigarette were not recited in the third party's complaint.

[2] This leads to Pennsylvania's next and principal contention, that the liability of EMCO did not arise out of the ownership, maintenance, or use of a helicopter. It argues, with some plausibility, that the pilot's extinguishing the cigarette upon the fuselage is not an occurrence within that framework. The rule is stated in WESTCHESTER FIRE INS. CO. v. CONTINENTAL INS. CO., 126 N.J. Super. 29, 38-39, 312 A.2d 664 (App. Div. 1973) as follows:

"The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected. . . .

In our mobile society the act of throwing OR DROPPING objects from moving vehicles is not such an uncommon phenomenon that such occurrence may not be anticipated, nor so inconsequential that members of the public need no financial protection from the consequences thereof. However antisocial such conduct may be, everyday experience tells us that various objects are thrown or permitted to fall from moving vehicles.

Common examples are LIGHTED CIGARETTES and cigars, food and drink containers, and other debris. (Italics ours.) ACCORD, STATE FARM MUT. AUTO. INS. CO. v. CENTENNIAL INS. CO., 14 Wn. App. 541, 543 P.2d 645 (1975); HARTFORD ACCIDENT & INDEM. CO. v. CIVIL SERV. EMPLOYEES INS. CO., SUPRA; NATIONAL INDEM. CO. v. CORBO, 248 So. 2d 238 (Fla. Dist. Ct. App. 1971); SEE ALSO 14 R. Anderson, COUCH CYCLOPEDIA OF INSURANCE LAW 51.45 n.12.l (1965, Supp. 1976).

Cigarette smoking at all times in all circumstances is commonplace, albeit reprehensible; attempts to extinguish lighted cigarettes upon any object within reach are also commonplace and also reprehensible. Although the injury to Carlisle was not expected or foreseen, the action of the pilot in smoking in the helicopter and stubbing out his cigarette on the fuselage was within the contemplation of the parties as a reasonably expected event arising out of the use of the helicopter.

[3] Because the subject matter of the wrongful death action was within the coverage of Pennsylvania's policy, that company must pay the damages assessed, reasonable attorney's fees and incidental costs incurred in defending the action. BOSKO v. PITTS & STILL, INC., 75 Wn.2d 856, 454 P.2d 229 (1969).

Petition for rehearing denied August 3, 1977. Review denied by Supreme Court January 20, 1978.