BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Marshall County wherein the parties sought a declaratory judgment pursuant to Mississippi Rule of Civil Procedure 57. There is no factual dispute in this cause. At issue is whether the appellant, Allstate Insurance Company, is obligated to defend and indemnify the appellee, Mrs. Moulton, in an action against her for malicious prosecution. The circuit court determined that Allstate was so obligated under a comprehensive dwelling policy purchased by Mrs. Moulton from Allstate. For the reasons stated below, we reverse.
On February 24, 1983, Mrs. Moulton swore out a complaint in justice court which stated that Anthony Walls had stolen her dog. Walls was arrested the next day and held in jail for two hours until he posted a $1,000 bond. Walls was brought to trial on March 5, 1983. Mrs. Moulton was the only witness against him and the charges were dismissed. Walls then filed a malicious prosecution action against Mrs. Moulton. Mrs. Moulton is the owner of a comprehensive dwelling policy issued by Allstate. She notified Allstate that in reliance on that insurance contract she expected Allstate to defend her in the malicious prosecution action.
Mrs. Moulton's insurance contract contains the following provisions:
The Company will pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of
judgments or settlements.
"Occurrence" means an accident, including injurious exposure to conditions, which results, during the endorsement period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured;
Is malicious prosecution the type of "occurrence" contemplated by the insurance policy? This Court has not yet passed on that question; however, other courts appear to be in disagreement. In Winkler v. Ohio Casualty Insurance Co., 441 A.2d 1129 (Md.App. 1982), the Maryland Court of Special Appeals held that an identical insurance policy provision did not provide coverage to a store owner who was sued for malicious prosecution, slander and false arrest. Winkler was the owner of a jewelry store. He erroneously accused a customer of stealing a diamond and substituting zircon in its place. The customer denied Winkler's accusation and Winkler summoned the police. The customer was arrested and held for several hours in a police station, questioned and strip searched as a result of Winkler's accusations. Ultimately it was determined that the alleged zircon was really a diamond and that the customer had done nothing wrong. The customer then sued Winkler for slander, malicious prosecution and false arrest. The court looked to the terms of the insurance policy which, like the policy in question, stated that it covered bodily or property damage caused by an "occurrence." As in the instant case, that policy defined occurrence as an accident. The court then held:
Maryland follows the rule that, in construing the language of an insurance policy, the words used "are to be given their customary and normal meanings." Harleysville Mutual Casualty Company v. Harris & Brooks, Inc., 248 Md. 148, 151, 235 A.2d 556 (1967). Thus, to determine what is meant by an "accident," we look first to a dictionary as we did in Simkins Industries, Inc. v. Lexington Insurance Company, 42 Md. App. 396, 401 A.2d 181 cert. den. 285 Md. 730 (1979), and as the Court of Appeals did in Harleysville Mutual Casualty Company. We find there (Webster Twentieth Century Dictionary) that an "accident" is "a happening, an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual
effect of a known cause, and therefore not expected."
The key ingredient is not merely a "happening," for that would make every act or event an "accident" ; rather, it is the unexpected nature of the event or its aftermath. 7A Appleman, Insurance Law and Practice, 4492 (Berdal ed. 1979), states:
"An accident is anything that happens or is the result of that which is unanticipated and takes place without the insured's foresight or anticipation. . . .As used in insurance policies it is simply an undersigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force, but it does not mean the natural and ordinary consequences of a negligent act." (Emphasis supplied.)
With this focus on the expectability of the event or its consequences we can avoid the need to consider appellant's subjective state of mind. There is no express disclaimer in the policy for acts "intentionally" done, and so it would make no difference whether appellant's acts were prompted by malice or negligence, or some other motivating force. The only relevant consideration is whether, according to the Declaration, the chain of events leading to the injuries complained of was set in motion and followed a course consciously devised and controlled by appellant without the unexpected intervention of ...