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Click here for the full text of this decision The charge should have included 1. a predicate question establishing that Vecellio committed a tort and 2. a question establishing that Vanguard was vicariously liable for Vecellio’s tort under the theory of respondeat superior. FACTS:In the early 1990s, a woman was kidnapped and raped, and a man was kidnapped and murdered, both at a home owned by Nicholas DeLeonardis. The representatives and heirs of the victims sued DeLeonardis, who then made a claim under his homeowner’s insurance policy, which had been issued by Vanguard Underwriters Insurance Co. Upon investigating the claim, the Vanguard adjuster learned that an insurance agent for Vecellio Insurance Agency, who placed the policy with Vanguard, had been contacted by DeLeonardis a month before the kidnapping incident to rewrite his policy. According to the agent, DeLeonardis told her he wanted the “same coverage” he’d had when the agent secured a policy for him while working at another company. The agent recalled receiving a faxed copy of the first page of declarations from the prior policy, but not the second page with an amendment extending coverage to the property where the incident occurred. As a result, the property was never covered. The adjuster also learned the agent tried to create coverage retroactively after the incident occurred. After determining that the property was not covered, Vanguard issued a reservation of rights letter to DeLeonardis. Three months later, Vanguard denied coverage. DeLeonardis’ excess carrier took up his defense and found out that the agent’s statements were not entirely accurate, including the facts that it was the agent never talked to DeLeonardis and that it was the agent’s father who provided the single page of prior declarations. Once aware of the inconsistencies of the agent’s statements, Vanguard resumed its defense, which resulted in a $300,000 settlement � the policy’s limit � in June 1994. Vanguard then sued Vecellio for fraud, common law and statutory indemnity, breach of the duty of good faith and fair dealing, breach of contract, negligence and violations of the Insurance Code. All but the common-law indemnity claim were time-barred, a ruling affirmed by this court in an earlier ruling. At trial on the common-law indemnity claim, the trial court submitted the following jury instruction: “Did Vanguard Underwriters Insurance Company have an obligation to defend Nicholas DeLeonardis solely as a proximate cause of the misconduct, if any, of Vecellio Insurance Agency?” The jury answered yes, and awarded Vanguard $260,000 in damages, $97,011.34 in attorneys’ fees and $201,686.95 in prejudgment interest. HOLDING:Reversed and remanded. The court explains that common-law indemnity exists only in products liability actions to protect an innocent retailer in the chain and distribution, and in negligence actions to protect a defendant whose liability is purely vicarious. For a right of indemnity based on vicarious liability to exist, the injured party must have a cause of action against the indemnitor, that is, the one whose action caused the indemnitee to be vicariously liable. In this case, that would mean that Vanguard would have an indemnity cause of action against one of its own agents if the agent’s conduct results in vicarious liability for Vanguard. The court agrees with Vecellio’s argument that the jury instruction was insufficient to support a recovery for common-law indemnity based on respondeat superior liability because it asks only about undefined “misconduct” and does not establish that Vecellio committed a tortious act for which Vanguard was held vicariously liable. “The jury question in this case did not establish that Vecellio could be held legally liable to DeLeonardis. Instead, it asked whether Vanguard’s duty to defend DeLeonardis arose from Vecellio’s ‘misconduct.’ Misconduct was not defined, and a jury finding of ‘misconduct’ by Vecellio, without further instruction, would not establish legal liability to DeLeonardis. The jury question submitted allowed the jury to award Vanguard indemnity without establishing the necessary predicate of respondeat superior liability for Vecellio’s torts.” The court then decides that it should remand the case instead of render judgment for Vecellio; rendition is proper if the error in the jury instruction was immaterial; remand is required if the question was merely defective. The instruction in this case was erroneous because it did not define actionable misconduct, so it was a defective instruction that was not immaterial, so remand is proper. OPINION:Radack, C.J.; Radack, Nuchia and Hanks, JJ.

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