2016 IL App (1st) 141392
Ill. App. Ct.2016Background
- October 10, 2011 altercation: Dahms (pedestrian) and Enadeghe (taxi driver); Dahms’s briefcase contacted the taxi windshield and later allegedly struck Enadeghe, knocking him unconscious.
- Enadeghe sued Dahms (Oct. 9, 2012) asserting negligence (Count I) and battery (Count II); Count I alleged damage to the windshield and that Dahms "physically struck" Enadeghe and was negligent.
- Dahms tendered defense to insurer Country Mutual; insurer denied coverage citing no "occurrence" (policy defines occurrence as an "accident") and exclusions for intentional/expected injury and for criminal acts.
- Dahms was criminally convicted of aggravated battery arising from the same incident (March 20, 2013); he later pleaded self-defense in the civil case (Oct. 31, 2013).
- Country Mutual filed a declaratory-judgment action seeking a ruling it had no duty to defend/indemnify; parties cross-moved for summary judgment.
- Trial court held Country Mutual had a duty to defend once Dahms asserted self-defense; appellate court modified: duty to defend arose on filing of the tort complaint but terminated upon Dahms’s criminal conviction.
Issues
| Issue | Plaintiff's Argument (Country Mutual) | Defendant's Argument (Dahms) | Held |
|---|---|---|---|
| Whether the tort complaint alleged an "accident"/"occurrence" to trigger duty to defend | Complaint describes intentional conduct (battery), so no "accident"; no coverage | Complaint’s Count I alleges negligence and property damage (windshield), so an "occurrence" exists | Court: Count I could potentially allege an "accident"; duty to defend triggered at complaint filing |
| Whether the intentional/expected-injury exclusion bars coverage | Exclusion applies because the conduct was intentional | Complaint pleads negligence and could be nonintentional; exclusion not clearly applicable | Court: Exclusion does not clearly apply on the face of the complaint; cannot bar duty to defend at outset |
| Whether the criminal-acts exclusion bars coverage before conviction | Exclusion applies regardless of charge or conviction; insurer may deny defense | Before conviction, facts could reasonably be read as accident or self-defense; exclusion not "clear and free from doubt" | Court: Criminal-acts exclusion did not bar duty to defend prior to criminal conviction |
| Effect of Dahms’s criminal conviction on duty to defend | Conviction establishes commission of a criminal act; exclusion then applies | Conviction postdates complaint but insurer’s earlier duty remains until disposition | Court: Duty to defend terminated on date of conviction (March 20, 2013); insurer need defend only from complaint filing until conviction |
| Whether the complaint alleges a separate property-damage claim (windshield) that survives conviction | Property damage claim could create coverage distinct from bodily injury | Complaint’s negligence count ties injuries to the person; no pleaded property-damage claim for which insurer must defend | Court: No cognizable property-damage claim is pleaded in the operative counts; no separate coverage on that basis |
Key Cases Cited
- Founders Insurance Co. v. Munoz, 237 Ill. 2d 424 (2010) (overview of insurer duty and declaratory actions)
- Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446 (2010) ("eight corners" rule and limits on deciding underlying issues)
- General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146 (2005) (insurer’s duty to defend broader than duty to indemnify)
- Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352 (2006) (allegations construed liberally in favor of the insured)
- Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127 (1999) (insurer must show coverage exclusion is clear to defeat duty to defend)
- Freyer v. Aetna Casualty & Surety Co., 89 Ill. App. 3d 617 (1980) (assault/battery allegations typically non-accidental)
- Allstate Insurance Co. v. Greer, 396 Ill. App. 3d 1037 (2009) (criminal-acts exclusion applied where complaint alleged conduct that was criminal and insured was convicted)
- Carioto v. Allstate Insurance Co., 194 Ill. App. 3d 767 (1990) (rare cases permit deciding that conduct was intentional when conclusive evidence exists)
- West American Insurance Co. v. Vago, 197 Ill. App. 3d 131 (1990) (intentional sexual assault allegations are not accidents)