Farmers Automobile Insurance Association v. Neumann
28 N.E.3d 830
Ill. App. Ct.2015Background
- On Aug. 27, 2011 Neumann allegedly struck Pekin police officer Christopher Bitner while Bitner was directing traffic.
- Bitner sued Neumann alleging intentional assault and battery (Bitner complaint). Neumann tendered defense to his insurer Farmers, which refused coverage for intentional acts.
- CCMSI (subrogee for the City of Pekin) later sued Neumann alleging negligence to recover workers’ compensation paid to Bitner (CCMSI complaint); Farmers acknowledged a duty to defend that claim under reservation of rights.
- The two suits were consolidated by the trial court; filings were directed to the Bitner case number.
- Farmers filed a declaratory-judgment action denying duty to defend the Bitner complaint; Neumann cross-moved for summary judgment arguing Farmers must defend the consolidated action in full.
- Trial court struck Neumann’s affidavit and affirmative defenses, granted Farmers’ summary judgment, and denied Neumann’s cross-motion. The appellate court reversed and ordered entry of judgment for Neumann, holding Farmers had a duty to defend the Bitner action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation required Farmers to defend Bitner complaint | Farmers: consolidation was only joint trial-type; duty limited to CCMSI claim | Neumann: consolidation merged suits into one action; duty to defend CCMSI claim extends to all consolidated claims | Court: consolidation merged cases into one action; duty to defend extends to entire consolidated suit; Farmers must defend Bitner action |
| Whether the insurer may consider the CCMSI complaint when assessing duty to defend | Farmers: duty judged by Bitner complaint allegations only | Neumann: CCMSI complaint is an independent, non-self-serving pleading that can be considered | Court: CCMSI complaint was properly considered; it supports a potential coverage trigger and duty to defend |
| Whether the trial court properly struck Neumann’s affidavit attempting to deny intent | Farmers: affidavit was improper "true but unpleaded facts" attempt | Neumann: affidavit showed lack of intent, undermining Bitner’s intentional-allegation theory | Court: affidavit was conclusory, not personal-knowledge evidence; striking it was not an abuse of discretion |
| Whether Neumann’s pleaded affirmative defenses were properly stricken | Farmers: defenses were improper and conclusory | Neumann: defenses preserved factual challenges and duty-to-defend claim | Court: the submissions were defenses, not adequately pleaded affirmative defenses; striking them was proper |
Key Cases Cited
- Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446 (Illinois Supreme Court) (insurer's duty to defend is broader than duty to indemnify)
- Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90 (Illinois Supreme Court) (duty to defend depends on allegations of underlying complaint and policy terms)
- United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64 (Illinois Supreme Court) (if any theory in a suit potentially falls within coverage, insurer owes duty to defend entire suit)
- American Economy Ins. Co. v. Holabird & Root, 382 Ill. App. 3d 1017 (App. Ct.) (court may, in some circumstances, look beyond the underlying complaint on duty-to-defend issues)
- Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782 (App. Ct.) (standard for pleading factual sufficiency of affirmative defenses)
- Vroegh v. J & M Forklift, 165 Ill. 2d 523 (Illinois Supreme Court) (affirmative defense concept: new matter defeating plaintiff's apparent right of recovery)