Tackett v. American Motorists Ins. Co
In Tackett v. American Motorists Ins. Co., 213 W.Va. 524, 584 S.E.2d 158 (2003), Mr. Tackett, who was employed as an assistant manager by Gadzooks, Inc., a nationwide clothing retailer with a store located in the Huntington Mall, assisted a fifteen-year-old female, who was a customer at the store.
She subsequently filed a complaint against Gadzooks and Mr. Tackett alleging that while she was shopping at Gadzooks, Mr. Tackett subjected her to various acts of sexual misconduct.
The suit against Mr. Tackett alleged that:
On or about April 19, 1997, the Plaintiff K.M.L., while shopping in the Defendant's Gadzooks' Store, was attended to by the Defendant, Tackett.
At said time and place, the Plaintiff, K.M.L., was fifteen (15) years of age. At said time and place, and while the Plaintiff was within the said retail Store, the Defendant, Tackett, while in the course and scope of his employment, sexually harassed, molested, and violated the infant Plaintiff, by, among other things, making sexual innuendos to the Plaintiff; touching the Plaintiff on various parts of her body, including her breasts; entering the sanctity of her dressing room, when the said infant Plaintiff was disrobed while trying on clothes; reaching his hands under the blouse that the Plaintiff was trying on; and by doing all of the above in front of another individual. (213 W.Va. at 526-527, 584 S.E.2d at 160-161.)
As a result of this complaint, American Motorists, from whom the corporate offices of Gadzooks had obtained a commercial general liability insurance policy, provided counsel to represent the Huntington Gadzooks store in its defense of this lawsuit.
American Motorists refused, however, to represent Mr. Tackett in this matter. Consequently, Mr. Tackett was required to obtain his own defense counsel. Ultimately, the plaintiffs reached and entered into a settlement agreement with the defendants, Gadzooks and Mr. Tackett. 213 W.Va. at 527, 584 S.E.2d at 161.
Nonetheless, the Court found that American Motorists incorrectly refused to provide a defense to Mr. Tackett.
The Court explained:
A contract for indemnification from loss typically also includes a provision whereby the insuring entity agrees to provide legal representation to said insured with respect to any claims filed against him/her for which the subject policy provides coverage. This type of arrangement has come to be known as the insurer's duty to defend. See, e.g., Black's Law Dictionary 523 (7th ed.1999) (defining "duty-to-defend clause" as "a liability-insurance provision obligating the insurer to take over the defense of any lawsuit brought by a third party against the insured on a claim that falls within the policy's coverage"). Unquestionably, the terms of the pertinent insurance contract govern the parties' relationship and define the scope of coverage as well as the existence of the insurer's duty to defend its insured.