concurring.
I join the Majority’s conclusion that the trial court erred in entering Judgment on the Pleadings on behalf of Appellee, National Union. In considering whether the claims in this matter “arise out of’ assaults and batteries, as found by the trial court, or out of alleged negligent supervisory conduct, as found by the Majority, one is reminded of the *918question of what comes first, the chicken or the egg.
Both the trial court and the Majority correctly note that where a third party complaint on its face clearly establishes conduct which is excluded under the terms of the policy, there is no duty to indemnify and no corresponding duty to defend. However, the obligation to defend will arise whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Seaboard Industries Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978). The particular statements set forth in the third party complaint in this case lead me to conclude that National Union had a duty to defend, and if the allegations were ultimately proven, a duty to indemnify. In particular the complaint alleges that the District and the Board “were aware that Walls had a history of arrests and/or convictions for committing sexual crimes against young children,” “knew or should have known that Walls was serving probation for committing sexual crimes”, “failed to conduct any investigation or background check” on Walls, and despite these facts had a policy which continued “to allow Walls to have regular and unsupervised contact with students.” Thus, in my view the Board’s failure to act to protect its students, if established, was the claimed breach which was the cause of the student’s harm, not the assault committed by Walls. Thus, the exclusions were inapplicable and National Union had a duty to defend against these charges.
Where a elaim is potentially within the scope of an insurance policy, and the insurer refuses to defend at the outset, it acts at its own peril. Aetna Casualty and Surety Co. v. Roe, 437 Pa.Super. 414, 650 A.2d 94 (1994). In this matter National Union refused to provide a defense and its insured entered a settlement with the injured party. National Union therefore, by means of its refusal, acted at its own peril and is now liable not only for the expenses incurred by the insured in defending the suit but also for the amount of the settlement made by the insured to the injured party. See, Annotation, Consequences of Liability Insurer’s Refusal to Assume Defense of Action, 49 A.L.R.2d 694 (1956). For these reasons I join the decision to vacate the judgment in this matter and remand the case to the trial court.