2006 UT 37
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Arthur Benjamin,
No. 20040974
Plaintiff and Appellee,
v.
Amica Mutual Insurance Company,
F I L E D
a Rhode Island corporation,
Defendant and Appellant.
July 7, 2006
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Third District, Salt Lake
The Honorable Glenn Iwasaki
No. 030902287
Attorneys: James A. Boevers, John S. Chindlund, Salt Lake City,
for plaintiff
S. Baird Morgan, Michael K. Woolley, Salt Lake City,
for defendant
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PARRISH, Justice:
¶1
Defendant Amica Mutual Insurance Company ("Amica")
seeks interlocutory review of the district court's grant of
partial summary judgment in favor of its insured, plaintiff
Arthur Benjamin. Amica challenges the district court's
determination that ambiguity in Amica's insurance policies
triggered coverage for various claims arising from alleged sexual
assaults committed by Benjamin. We conclude that the unambiguous
plain language of the policies provides for coverage of the
claims in question. Therefore, although we disagree with its
reasoning, we affirm the result reached by the district court.
FACTS
¶2
In August 2000, Jeanette Borthick and Angela Allen
filed separate lawsuits against Benjamin. Both Borthick and
Allen, coworkers of Benjamin, alleged that he had sexually
assaulted them. The women asserted identical causes of action
for (1) assault, (2) battery, (3) intentional infliction of

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emotional distress, (4) negligent infliction of emotional
distress, (5) false imprisonment, and (6) invasion of privacy.
¶3
Borthick alleged that Benjamin sexually assaulted her
on May 11, 2000, while the two were conducting business in
Phoenix. According to Borthick, Benjamin forced his way into her
hotel room and raped her. Though she alleged that Benjamin
committed horrific, intentional acts, Borthick also claimed that
Benjamin was liable for negligent infliction of emotional
distress. While Benjamin admitted that he engaged in sexual
intercourse with Borthick, he claimed it was consensual.
¶4
Allen's claims arose from a series of incidents that
allegedly took place between May and October 1999 at several
locales, including various hotels, Benjamin's home, and Allen and
Benjamin's place of employment. Allen alleged that Benjamin
sexually assaulted her on each of these occasions. Like
Borthick, Allen sought damages for negligent infliction of
emotional distress in addition to a variety of intentional torts.
Benjamin denied that he ever engaged in any sexual activity with
Allen.
¶5
Benjamin tendered the defense of both cases to Amica.
Benjamin had purchased two insurance policies from Amica: a
homeowners policy (the "Homeowners Policy") and a Personal Excess
Liability Policy (the "Excess Policy"). The Homeowners Policy
provided Benjamin with personal liability coverage of up to
$300,000 per covered occurrence. Under that policy, Amica
promised to defend allegations triggering coverage, even if they
were "groundless, false or fraudulent." The Excess Policy
provided for personal liability coverage of up to $2,000,000 "in
excess of primary insurance."
¶6
Amica initially defended both cases, subject to a
reservation of rights to deny coverage. But after questioning
Benjamin under oath about the allegations, Amica discontinued its
defense in the Borthick case. Amica continued to defend Benjamin
in the Allen case, subject to its reservation of rights.
¶7
Borthick's claims against Benjamin were tried to a jury
in February 2003. The jury rejected all of Borthick's
intentional tort claims and found Benjamin liable only for
negligent infliction of emotional distress. The trial court,
however, entered judgment notwithstanding the verdict in favor of
Benjamin on the ground that worker's compensation was Borthick's
exclusive remedy for her claim of negligent infliction of
emotional distress.
No. 20040974
2

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¶8
After the Borthick trial, Benjamin entered into
settlement negotiations with both Borthick and Allen. Benjamin
notified Amica of the negotiations and asked Amica to
participate, but Amica refused. Benjamin subsequently settled
both cases and asked Amica to indemnify him for the settlement
amounts; Amica again refused.
¶9
Benjamin filed a complaint against Amica, alleging
three causes of action: (1) breach of the express terms of his
insurance contracts, (2) breach of implied covenants of good
faith and fair dealing, and (3) breach of fiduciary duties.
Benjamin moved for partial summary judgment on the breach of
contract claim, arguing that Amica breached its insurance
contracts by discontinuing its defense in the Borthick case and
failing to indemnify Benjamin for the amount he paid to settle
the covered Borthick and Allen claims. Amica filed a cross-
motion for summary judgment.
¶10
The district court ultimately granted Benjamin's motion
for partial summary judgment, ruling that the claims for
negligent infliction of emotional distress, false imprisonment,
and invasion of privacy were covered by "Amica's insurance
policies." The district court concluded that the policies were
ambiguous as to coverage and that, as standard form contracts,
the ambiguities should be construed in favor of coverage. The
court further concluded that Amica had breached the terms of the
policies by discontinuing its defense in the Borthick case and by
failing to indemnify Benjamin for the amount he paid to settle
the covered Borthick and Allen claims.
¶11
Amica filed a timely petition for interlocutory appeal.
We initially transferred the matter to the court of appeals,
which granted Amica's petition. We subsequently vacated the
transfer order and recalled the case. We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(j) (2001).
ANALYSIS
¶12
We review the district court's grant of partial summary
judgment "for correctness, granting no deference to the district
court." Swan Creek Vill. Homeowners Ass'n v. Warne, 2006 UT 22,
¶ 16, 134 P.3d 1122 (internal quotation marks and brackets
omitted). A court appropriately grants summary judgment "only
when there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law." Id.
(internal quotation marks omitted).
¶13
We begin by analyzing the duties that the policies
imposed upon Amica in the Borthick and Allen cases. We conclude
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No. 20040974

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that the Homeowners Policy required Amica to defend Benjamin
against all of the claims raised by Borthick and Allen. We
further hold that the Homeowners Policy imposed upon Amica a duty
to indemnify Benjamin with respect to the negligent infliction of
emotional distress claims. Moreover, we conclude that the plain
language of the Excess Policy provides coverage for two of the
intentional torts alleged by Borthick and Allen. We therefore
affirm the district court's holding that Amica breached its duty
to defend in the Borthick case and its duty to indemnify in the
Borthick and Allen cases. We disagree, however, with the
district court's conclusion that the policies are ambiguous. We
therefore affirm the district court's grant of partial summary
judgment, but vacate its reasoning. Finally, we consider and
reject Benjamin's request for an award of attorney fees and costs
incurred in defending against this appeal.
I. COVERAGE
¶14
"An insurance policy is merely a contract between the
insured and the insurer." Alf v. State Farm Fire & Cas. Co., 850
P.2d 1272, 1274 (Utah 1993). As a result, we interpret insurance
policies as we do contracts: "if the language within the four
corners of the contract is unambiguous, the parties' intentions
are determined from the plain meaning of the contractual
language." Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 21, 133
P.3d 428 (internal quotation marks omitted). Barring ambiguity,
therefore, our exegesis of the policies focuses on the plain
meaning of the language they employ. We first examine the
Homeowners Policy and then move to the Excess Policy.
A. The Homeowners Policy
¶15
The Homeowners Policy charged Amica with two specific
duties in connection with the Borthick and Allen cases. First,
it imposed a duty to defend Benjamin against all of the claims
raised by Borthick and Allen. Second, it imposed a duty to
indemnify Benjamin for the negligent infliction of emotional
distress claims. We discuss each of these duties in turn.
1. The Duty to Defend
¶16
When we engage in a duty-to-defend analysis, we focus
on two documents: the insurance policy and the complaint. "An
insurer's duty to defend is determined by comparing the language
of the insurance policy with the allegations of the complaint."
Fire Ins. Exch. v. Estate of Therkelsen, 2001 UT 48, ¶ 21, 27
P.3d 555 (internal quotation marks omitted); see also Nova Cas.
Co. v. Able Constr., Inc., 1999 UT 69, ¶ 8, 983 P.2d 575; Sharon
Steel v. Aetna Cas. & Sur., 931 P.2d 127, 133 (Utah 1997). In
No. 20040974
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Therkelsen, we cited to an alternative formulation of this rule:
"`The test is whether the complaint alleges a risk within the
coverage of the policy.'" 2001 UT 48, ¶ 21 n.3 (quoting
Continental Cas. Co. v. Alexis I. Du Pont Sch. Dist., 317 A.2d
101, 103 (Del. 1974)). We must therefore determine if Borthick
and Allen alleged claims that are covered by the terms of the
Homeowners Policy. We conclude that they did.
¶17
We begin our analysis with the four corners of the
Homeowners Policy. Because the duty to defend is contractual,
Therkelsen, 2001 UT 48, ¶ 22, our starting point must always be
the underlying policy. Section II, Coverage E of the Homeowners
Policy describes Amica's duty to defend:
If a claim is made or a suit is brought
against an insured for damages because of
bodily injury . . . caused by an occurrence
to which coverage applies, [Amica] will:
. . . .
2. Provide a defense at [Amica's]
expense by counsel of [Amica's] choice,
even if the suit is groundless, false or
fraudulent. [Amica] may investigate and
settle any claim or suit that [Amica]
decide[s] is appropriate. [Amica's]
duty to settle or defend ends when the
amount [Amica] pay[s] for damages
resulting from the occurrence equals
[Amica's] limit of liability.
The policy defines the emphasized terms. It defines "occurrence"
as "an accident, including continuous or repeated exposure to
substantially the same general harmful conditions, which results,
during the policy period, in . . . [b]odily injury" (emphasis
omitted)). But the Homeowners Policy specifically excludes from
coverage "bodily injury . . . [w]hich is expected or intended by
the insured" (emphasis omitted).
¶18
With this contractual framework in mind, we can narrow
our inquiry to whether Borthick and Allen alleged bodily injury
that was caused by an accident and was not expected or intended
by Benjamin. The parties do not dispute that Borthick and Allen
have alleged bodily injury. And Amica does not develop any
argument on appeal with respect to application of the "accident"
requirement to the negligent infliction of emotional distress
claims. Instead, Amica relies on the expected injury exclusion.
We therefore confine our analysis to this exclusion.
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No. 20040974

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¶19
Because Borthick and Allen both alleged that Benjamin
sexually assaulted them, Amica argues that any resulting injuries
must be treated as "expected or intended" injuries that are
excluded from coverage under the policy. In Amica's view, the
negligence claims are merely "creatively-labeled causes of action
intended to trigger insurance coverage." We disagree.
¶20
The crux of a claim for negligent infliction of
emotional distress is unintentional injury. See Harnicher v.
Univ. of Utah Med. Ctr., 962 P.2d 67, 69 (Utah 1998) (describing
one element of the tort as "unintentionally caus[ing] emotional
distress to another" (internal quotation marks omitted)). By
including in their complaints claims for negligent infliction of
emotional distress, Borthick and Allen alleged an alternative
theory of liability--that Benjamin unintentionally injured them.
Though Borthick and Allen have also alleged that Benjamin
committed intentional sexual assaults, that does not preclude
them from pleading alternative causes of action.1 And the fact
that the underlying factual allegations were sufficient to
satisfy the elements of a claim for negligent infliction of
emotional distress is demonstrated by the result in the Borthick
case.
¶21
In the Borthick case, an impartial jury reviewed the
evidence and rejected Borthick's claims that Benjamin
intentionally harmed her. The jury instead found Benjamin liable
only for negligent infliction of emotional distress. In other
words, the jury determined that while Benjamin had harmed
Borthick, he had harmed her only unintentionally.2 It would be
an odd result indeed for this court to conclude that the factual
allegations of the complaint could not support a claim for
negligent infliction of emotional distress when the trial judge
allowed that claim to go to the jury and when the jury found that
the evidence supported such a claim.

1 Indeed, the Utah Rules of Civil Procedure explicitly
authorize pleadings that seek "[r]elief in the alternative or of
several different types." Utah R. Civ. P. 8(a). And they also
provide that "[a] party may . . . state as many separate claims
or defenses as he has regardless of consistency." Id. at
8(e)(2).

2 Apparently, the jury believed Benjamin's defense, which
was that he believed his sexual contact with Borthick to have
been consensual and that any emotional distress associated with
the sexual contact was the result of Benjamin's negligent belief
that Borthick had consented.
No. 20040974
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¶22
Because Borthick and Allen alleged that Benjamin
negligently and unintentionally inflicted emotional distress upon
them, Amica had a duty to defend Benjamin until it could
establish that those claims were not supported by the facts.
Where factual questions render coverage uncertain, as is the case
here, the insurer must defend until those uncertainties can be
resolved against coverage. "When in doubt, defend." Appleman on
Insurance Law and Practice § 136.2[C] (2d ed. 2006).
¶23
Amica argues vigorously that we should follow the court
of appeals' decision in Rosas v. Eyre, 2003 UT App 414, 82 P.3d
185. In Rosas, the court of appeals held that an insurer had no
duty to defend an assault claim brought against its insured where
the insured's child allegedly attacked a disabled classmate and
knocked him out of his wheelchair. Id. ¶ 26. Although the
complaint contained an allegation that the plaintiff's injuries
were "a direct and proximate result of [the defendant's] wrongful
acts, omissions, negligence and recklessness," id. ¶ 4 (internal
quotation marks omitted), the court reasoned that the insurer had
no duty to defend because "the facts alleged in the complaint
clearly demonstrate that a cause of action based solely on an
intentional tort was intended." Id. Rosas is distinguishable,
however, because unlike the complaint here, the complaint in
Rosas did not allege a separate, alternative claim for relief
sounding in negligence. Rather, it was uncontested in that case
that the "complaint clearly sound[ed] . . . in an intentional
tort."3 Id. ¶ 26 n.7.

3 To the extent that Rosas and similar cases from the court
of appeals could be interpreted to preclude insurance coverage
for negligence claims in all situations where a plaintiff also
alleges alternative claims of intentional tort that are excluded
from coverage, we decline to follow them. See, e.g., Fire Ins.
Exch. v. Rosenberg, 930 P.2d 1202, 1205 (Utah Ct. App. 1997);
State Farm Fire & Cas. Co. v. Geary, 869 P.2d 952, 955 (Utah Ct.
App. 1994). Rather, we emphasize that the appropriate inquiry is
whether the complaint alleges claims sounding in negligence. To
the extent that the underlying facts in any given case do not
satisfy the elements of a claim for negligence, the negligence
claim will be subject to dismissal. But that is not the
situation here, as reflected by the undisputed facts establishing
that the complaint asserted alternative claims sounding in both
intentional tort and negligence, that the trial judge in the
Borthick case allowed the negligence claim to go to the jury, and
that the jury actually found in favor of Borthick on the
negligence claim.
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No. 20040974

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¶24
Where an insurance policy obligates an insurer to
defend claims of unintentional injury, the insurer is obligated
to do so until those claims are either dismissed or otherwise
resolved in a manner inconsistent with coverage. Even where the
complaint details egregious, intentional conduct, an expected
injury exclusion like the one found in the Homeowners Policy does
not relieve an insurer of its duty to defend claims of
unintentional injury. Inferences and assumptions about an
insured's intent to injure are improper and inconsistent both
with the well-accepted practice of alternative pleading and with
our oft-repeated instruction that "insurance policies should be
construed liberally in favor of the insured and their
beneficiaries so as to promote and not defeat the purposes of
insurance." United States Fidelity & Guar. Co. v. Sandt, 854
P.2d 519, 521 (Utah 1993) (internal quotation marks omitted); see
also Farmers Ins. Exch. v. Versaw, 2004 UT 73, ¶ 24, 99 P.3d 796.
¶25
Because Amica owed a duty to defend the negligent
infliction of emotional distress claims, Amica owed a duty to
defend all of the claims brought by Borthick and Allen. "[W]hen
there are covered and non-covered claims in the same lawsuit, the
insurer is obligated to provide a defense to the entire suit, at
least until it can limit the suit to those claims outside of the
policy coverage." Appleman on Insurance Law and Practice
§ 136.2[D] (2d ed. 2006); see also Mt. Airy Ins. Co. v.
Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) ("[I]f an insurer has
a duty to defend one count of a complaint, it must defend them
all.").
¶26
We therefore affirm the district court's determination
that Amica breached the terms of the Homeowners Policy by
wrongfully withdrawing its defense in the Borthick case. Because
Amica never discontinued its defense in the Allen case, it did
not breach its duty to defend in that case. We now turn our
discussion to the scope of Amica's duty to indemnify under the
Homeowners Policy.
2. The Duty to Indemnify
¶27
Like the duty to defend, "[t]he duty to indemnify is a
contractual one." Fire Ins. Exch. v. Estate of Therkelsen, 2001
UT 48, ¶ 14, 27 P.3d 555. "[A]ccordingly, the issue at hand is
governed by the terms of the parties' contract." Id. The
Homeowners Policy describes Amica's duty to indemnify as follows:
If a claim is made or a suit is brought
against an insured for damages because of
bodily injury . . . caused by an occurrence
to which coverage applies, [Amica] will:
No. 20040974
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1. Pay up to [Amica's] limit of
liability for the damages for which the
insured is legally liable. Damages
include prejudgment interest awarded
against the insured . . .
(emphasis omitted).
¶28
Like the duty to defend, the duty to indemnify is tied
to the existence of covered claims. Therefore, for the same
reasons that Amica was obligated to defend against the claims for
negligent infliction of emotional distress, it was also obligated
to pay "for the [covered] damages [arising from those claims] for
which [Benjamin was] legally liable."
¶29
Typically, an insured's legal liability for damages
arises when judgment is entered against him. In this case,
however, Benjamin entered into settlement discussions with
Borthick and Allen in an attempt to limit his potential exposure.
While Amica was contractually entitled to participate in and
control such discussions, it declined to do so, electing instead
to gamble on the possibility that it could avoid any obligation
for the claims altogether. As a result, Amica is now estopped
from second-guessing Benjamin's decision to settle. See Perdue
Farms, Inc. v. Travelers Cas. & Sur. Co. of Am., 448 F.3d 252,
258 (4th Cir. 2006) ("The duty to indemnify depends upon
liability, i.e., an insurer's obligation to pay a judgment or
settlement." (internal quotation marks omitted)).
¶30
Benjamin's settlement agreements with Borthick and
Allen render him legally liable for damages. Amica is therefore
contractually obligated to indemnify Benjamin for any amount he
paid to settle the negligent infliction of emotional distress
claims. Because Amica refused to do so, we affirm the district
court's conclusion that Amica breached its duty under the
Homeowners Policy by failing to indemnify Benjamin for the amount
he paid to settle Borthick's and Allen's negligent infliction of
emotional distress claims. Because we do not have the settlement
agreements before us, we cannot determine what amount, if any,
Benjamin paid to settle those particular claims. We therefore
instruct the district court to hold a factual hearing to
determine that amount.
B. The Excess Policy
¶31
We now shift our interpretative focus to the Excess
Policy and conclude that its plain language creates coverage for
two of the intentional torts alleged by Borthick and Allen:
invasion of privacy and false imprisonment. We affirm the
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No. 20040974

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district court's determination that Amica breached its duty to
indemnify Benjamin with respect to these claims. Because Amica
does not dispute that the facts alleged by Borthick and Allen
establish the elements of both torts, we do not address that
issue.
¶32
We conclude that Amica owes a duty to indemnify under
the Basic Liability Coverage provision of the Excess Policy.
Under that provision, Amica promises to "pay for injury or damage
for which a covered person becomes legally liable for an
occurrence which is not insured by any primary insurance that a
covered person is required to maintain." "Occurrence" is defined
as:
1. an accident (including continuous or
repeated exposure to similar conditions)
which results in bodily injury or damage; or
2. an act (or series of acts of the same or
similar nature) which results in personal
injury
(some emphasis added). The term "injury" is defined by the
Excess Policy as:
1. bodily injury.
2. personal injury.
(a) wrongful eviction or detention.
(b) libel.
(c) slander.
(d) defamation of character.
(e) invasion of privacy.
(f) false arrest or false imprisonment.
(g) malicious prosecution
(some emphasis added). The Excess Policy provides no further
definition of either "bodily injury" or "personal injury."
¶33
Read in concert, these provisions plainly express
that--to the extent not covered by primary insurance--Amica will
indemnify covered persons for liability incurred for personal
injury arising from an invasion of privacy or false imprisonment.
We can find no exclusion that would operate to preclude coverage
for such liability.
¶34
Amica argues that the Excess Policy's expected injury
exclusion applies. That exclusion reads: "We do not provide
coverage for . . . bodily injury or damage which is either
No. 20040974
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expected or intended by a covered person" (emphasis omitted).
But the plain language of this exclusion states that it applies
to claims for bodily injury--not to claims for personal injury.
Indeed, the Excess Policy defines the term "personal injury" only
in the context of seven intentional torts. If the expected
injury exclusion operated to remove personal injury liability
coverage for those seven torts, then the personal injury clause
would be rendered a nullity. Such an interpretation is both
illogical and inconsistent with the plain language of the
exclusion, which clearly indicates that it applies only to claims
for bodily, rather than personal, injury.
¶35
The scope of the coverage provided by the Excess Policy
bolsters our conclusion. "True" excess policies do not "broaden
the underlying coverage"--they merely "increase[] the amount of
coverage available to compensate for a loss." Douglas R.
Richmond, Rights and Responsibilities of Excess Insurers, 78
Denv. U. L. Rev. 29, 30 (2000). Policies that are labeled
"excess" policies, however, are sometimes best described as
umbrella policies. Umbrella policies widen the scope of
coverage: "For example, an umbrella policy may insure against
`personal injury' when a primary policy only insures against
`bodily injury' and `property damage.'" Id. at 31. The policies
here mirror this example. Whereas the Homeowners Policy does not
provide coverage for "personal injury" resulting from enumerated
intentional torts, the Excess Policy includes an express
provision giving rise to coverage for such liability. Therefore,
the Excess Policy--despite its label--is best viewed as an
umbrella policy. Indeed, the Excess Policy explicitly provides
coverage for certain "injury or damage . . . not insured by any
primary insurance" (emphasis omitted). As a result, we read the
Excess Policy as an umbrella policy separate and distinct from
the Homeowners Policy.
¶36
That the claims of invasion of privacy and false
imprisonment arise from alleged sexual assaults does not affect
our analysis. The plain language of the policy, which guides our
interpretation, expressly indicates personal injury liability
coverage for these two torts, regardless of circumstance. Some
policies contain express sexual misconduct exclusions, such as
the one at issue in Lopez v. New Mexico Public Schools Insurance
Authority, 870 P.2d 745, 747 (N.M. 1994), which stated, "Sexual
or physical abuse or molestation of any person . . . does not
constitute personal injury within the terms of this policy and as
such any claim arising, directly or indirectly, from the
aforementioned is excluded" (emphasis added). No such exclusion,
however, is present in the Excess Policy. Instead, the Excess
Policy broadly indicates coverage for "personal injury" resulting
from an "invasion of privacy" or "false imprisonment."
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No. 20040974

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¶37
We therefore hold that the Excess Policy imposed upon
Amica a duty to indemnify Benjamin with respect to Borthick's and
Allen's claims of invasion of privacy and false imprisonment.
Accordingly, we affirm the district court's conclusion that Amica
breached this duty by refusing to indemnify Benjamin for the
amount he paid to settle those claims. We instruct the district
court to hold a factual hearing in order to determine the amount
of the settlement attributable to those specific claims.
II. COSTS
¶38
We finally consider Benjamin's request for an award of
the costs and attorney fees he incurred in defending against this
appeal. While we deny the request, we instruct the district
court to consider these costs and fees in its calculation of any
future award it may enter in favor of Benjamin. See Utah R. App.
P. 34(a) ("[I]f a judgment or order is affirmed, costs shall be
taxed against [the] appellant unless otherwise ordered."); see
also Nalder v. Kellogg Sales Co., 314 P.2d 350, 353 (Utah 1957)
("The trial court failed to allow the defendant its costs for
filing the record in the former appeal. This should be done.").
¶39
This is an interlocutory appeal; final judgment has yet
to be entered. Under Utah Rule of Civil Procedure 54(d)(1), an
award of costs is to be given to the "prevailing party" and is to
"abide the final determination of the cause." In interpreting
this provision, we embrace the rule promulgated by the Arizona
Supreme Court: "Unless provided by statute, there shall be no
application for costs or attorneys' fees made . . . in connection
with a petition for review by interlocutory appeal. . . .
[I]ssues of costs and attorneys' fees, if any, shall abide the
final resolution of the adjudication." In Re Rights to the Use
of the Gila River, 830 P.2d 442, 458 (Ariz. 1992). We therefore
instruct the district court to evaluate Benjamin's request for
costs and attorney fees incurred in defending against this
interlocutory appeal when the case is finally resolved and it can
identify the prevailing party.
CONCLUSION
¶40
Because we find no genuine issue as to any material
fact and conclude that Benjamin is entitled to judgment as a
matter of law, we affirm the district court's grant of partial
summary judgment. We hold that the unambiguous language of the
policies imposed several duties upon Amica. First, the
Homeowners Policy required Amica to defend Benjamin in the
Borthick and Allen cases. Second, the Homeowners Policy required
Amica to indemnify Benjamin for losses he sustained in connection
with Borthick's and Allen's claims for negligent infliction of
No. 20040974
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emotional distress. Third, the Excess Policy imposed upon Amica
a duty to indemnify Benjamin for losses he sustained in
connection with Borthick's and Allen's invasion of privacy and
false imprisonment claims. We uphold the district court's
conclusion that Amica breached its duty to defend in the Borthick
case and its duty to indemnify in the Borthick and Allen cases.
Affirmed.
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¶41
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Judge Payne concur in Justice Parrish's
opinion.
¶42
Having disqualified himself, Justice Nehring does not
participate herein; District Judge A. Lynn Payne sat.
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