Amica Mutual Insurance Co. v. Cody
An insurance company's request for a declaratory judgment on whether it is responsible to defend or to indemnify, as a result of policy exclusions that apply to intentional conduct, may not be ripe, if the underlying suit, which adequately alleges negligence, remains unresolved. In the underlying suit, brought by Audrey Cody, as parent and next friend of George Cody III, the plaintiffs alleged the following facts: The plaintiff's child, George Cody, 14, moved Ryan Panny's shoes, as a prank, then informed Ryan, also 14, where his shoes were located. Ryan allegedly smashed George in the face with a baseball bat, breaking his nose and causing double vision, light sensitivity, a concussion, emotional distress and post traumatic stress disorder. The Codys sued, alleging negligence and intentional assault and battery. Panny denied that his conduct was intentional and claimed that he acted in self-defense and did not intend to cause harm. The Codys' suit has been scheduled for a trial by jury in December 2013. The Pannys' insurance company, Amica Mutual Insurance Co., requested a declaratory judgment that it is not required to defend and to indemnify, because exclusions for intentional conduct apply. Amica's declaratory judgment suit is scheduled for trial in the summer of 2013. Panny moved to dismiss Amica's suit. The court found that Amica's suit is not ripe, because the Codys' complaint adequately alleged negligence, and the underlying suit has not been resolved. "If the plaintiff, George Cody, III is successful in litigating the underlying tort lawsuit," wrote the court, "Amica can then institute a declaratory judgment action against George Cody, III to determine if there is coverage for the underlying tort claim under the Panny's homeowner's insurance policy." The court granted Panny's motion to dismiss.