dissenting.
I dissent from the Majority Opinion because an insurance company should not be unnecessarily burdened with the defense of expensive litigation when the nature of the claim has been excluded by the express terms of the insurance contract. There was no "occurrence" as that term is defined by the contract of insurance. Too, the alienation of the premises by the insured to Waggoner triggered the exclusion clause of the insurance contract. When the nature of the claim is obviously not covered by the policy of insurance, there is no duty to defend. American States Ins. Co. v. Aetna Life & Casualty Co. (1978), 177 Ind.App. 299, 379 N.E.2d 510, 516; Cincinnati Ins. Co. v. Mallon (1980), Ind. App., 409 N.E.2d 1100, 1105.
If the contract definition of "occurrence" is "an accident ... neither expected nor intended from the standpoint of the insured", then, no amount of torturing the facts can evoke an "occurrence". Kopko received a soil report from Lewis K. Walter, Jr. Associates which clearly exposed the compressibility problems with the unimproved lots. Later, he sold a lot to Wag-goner, a contractor, who built a home on the lot. He knew of the compressibility problems with the soil and went to considerable expense to correct the problems. When Waggoner purchased a second lot for development, Kopko reimbursed him for the expenses that he incurred to correct the compressibility problem.
Kopko expected soil problems. He had a report from Lewis K. Walter, Jr. that told him about the compressibility problem. He reimbursed Waggoner for the money he had spent to correct the compressibility problem. Kopko not only expected compressibility problems with lots that he sold, but after paying Waggoner for his added expense to correct the problem, he expected compressibility problems with future development. No other inference is reasonable.
Kopko sold the lot to Waggoner. The lot is no longer a part of the property insured. The insurance contract expressly provides:
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....
EXCLUSIONS
This insurance does not apply:
* * # * * *
(d) to property damage: ... (5) to premises alienated by the named insured arising out of such premises or any part thereof[.]
Record p. 67.
Transamerica is correct when it contends that the premises are excluded from coverage. Even the Majority admits that this exclusionary clause is not ambiguous. The exclusion is clear and the lot in litigation is clearly within the scope of the clause. Evans v. National Life Accident Ins. Co. (1984), Ind.App., 467 N.E.2d 1216, 1219.
Transamerica Insurance Services has no duty to defend the action against Kopko. There is no "occurrence" and the nature of the action is unquestionably excluded from *328the coverage of the policy. verse the trial court. I would re-