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KLEIN v. SALAMA

July 8, 1982

ALAN KLEIN, Plaintiff,
v.
EDWARD SALAMA, Defendant


McLaughlin, District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

 This is a motion by a law firm to withdraw as counsel for the defendant in this personal injury action. The law firm, Martini, Wynne & Byrne, ("Martini") is house counsel to Great American Insurance Company ("Great American") which issued a homeowner's policy to Edward Salama's parents, Albert and Fortunte Salama. The defendant, Edward Salama, is an insured under that policy. For the reasons stated below, Martini is removed as counsel in favor of counsel of defendant's choice and Great American is ordered to pay all reasonable attorney's fees incurred on Edward Salama's behalf.

 THE FACTS

 The complaint alleges that the plaintiff sustained an injury during the course of a basketball game. The first and third causes of action allege that the defendant, Edward Salama, "wilfully, intentionally and maliciously assaulted plaintiff", while alternatively, the second alleges that the injury was caused when the "defendant struck plaintiff with such deliberate and reckless force, and in such a state of mind that, under the circumstances, then and there existing, his actions were unlawful, reckless, wanton and highly dangerous to the . . . plaintiff."

 Shortly after receiving a copy of the complaint, Great American informed Mr. Salama that Martini would be instructed "to enter an appearance and answer on [Mr. Salama's] behalf and to take whatever steps are necessary to protect [Mr. Salama's] interests in the defense of this lawsuit." Great American July 2, 1980 letter at 1. Although Great American agreed to provide Mr. Salama with a defense, it denied liability under the policy. Specifically, the letter stated that:

 
Upon a review of the allegations in this complaint, we must inform you that the allegations are not covered under the homeowner's policy #473 71 71 issued to Albert and Fortunte Salama under which we have provided you with a defense. A review of the complaint indicates that the allegations against you are for intentional acts and assault. At this time I would like to direct your attention to Section 2 of your policy under the sub-section Exclusions and in particular Exclusion F which reads as follows:
 
f. To bodily injury or property damage which is either expected or intended from the standpoint of the insured.
 
In the course of our investigation you have denied the allegations against you and it is under the assumption that the allegations in the complaint are groundless that we have agreed to supply you with a defense. However, if any judgment is rendered against you for any cause of action in this complaint, this company will refuse to indemnify you because of the above cited exclusion. Any judgment rendered against you will have to be satisfied out of your personal assets and this company will not be responsible for said judgment. *fn1"

 Id.

 After reading plaintiff's answers to interrogatories propounded by the defendant, Great American reversed its position and informed the defendant that it would no longer defend him. Reiterating that intentional acts were not covered by the homeowner's policy, Great American stated that:

 
. . . careful review of the Interrogatories in the Federal Court [indicate that] the allegations against [Mr. Salama] are for intentional acts and assault . . . .
 
At this time, the Great American Insurance Company and the office of Wynne, Martini & Byrne, Esqs. are disclaiming coverage and/or responsibility for anything in this lawsuit. We would suggest that at this time, you contact your personal attorney to make arrangements for him to take over the defense of your action.

 Martini now moves to withdraw as counsel for the defendant. Plaintiff objects to Martini's motion for three reasons: first, the motion is untimely; second, it would prejudice the plaintiff; and third, having previously promised to defend Mr. Salama, ...


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