*1 al., et IN Plaintiffs-Appellants, GENE T. TAPP v. WRIGHTSMAN-MUSSO al., Casualty (Aetna Surety SURANCE AGENCY et Com Defendants. — pany of Defendant-Appellee.)
Fourth District No. 17603 13, 1982. Opinion filed October GREEN, P.J., concurring. specially Lestikow, (Richard Durbin, counsel),
Durbin & Springfield J. appellants. *2 Cadigan (Patrick
Gillespie, Gillespie, Springfield Cadigan, & of of J. counsel), appellee. for opinion
JUSTICE TRAPP delivered the of the court: The trial court a judgment pleadings finding entered on the Aetna Casualty Surety Company and no to duty had defend in- Plaintiffs, sured Greff in plaintiffs’ and Dodson action. as of assignees rights Aetna, and claims Greff under a policy issued appeal. Greff, Plaintiffs filed a complaint against Kenneth Donald D. Dod- 8, son and on September others 1980. Counts VII and VIII were the against counts Greff A and Dodson. contract for Kamar, the sale of a building by defendant, defendants, to Greff Dodson, partners, and as was attached to the an complaint as exhibit. Subsequently, plaintiffs filed count XIII of their fourth amended com- plaint defendant, against Aetna. This alleged count that Aetna in- defendants, sured certain Dodson, Greff and by a policy which was effect on September 30,1978. 30, September 1978,
On began Greff dismantling the building, then located at the Farm Progress Show near Taylorville, for relocation of the Virden, as a storage facility in Illinois. Dur- ing this dismantling operation, plaintiff, Gene Tapp, voluntarily who Dodson, assisted Greff and injured. was The also alleged damages Margie to Tapp. The initial complaint against Greff re- Aetna, defendant, ferred to aas tender of defense. Defendant Aetna informed Greff it would not defend him.
It was that a judgment default was entered against Greff 29, on 27, 1981, December 1980. On February Greff executed a docu- ment whereby assigned title, he to all his plaintiffs right, and claims, interest in his policy demands, with Aetna and all and causes of action out of arising Plaintiffs, sustained injuries plaintiffs. as assignees of the obligated that Aetna was policy, to provide a defense defendant Greff on the complaint, initial defendant denies this duty. there was actual contro- versy between the parties, plaintiffs prayed for a declaration of rights under the and a policy, finding that defendant Aetna was liable for $300,000 and expenses. under sec 27, 1981,
On Aetna filed a motion dismiss August (Ill. 1979, ch. Practice Act Rev. Stat. 45(1) 48(1) tions Civil 110, Attached exhibit A the initial com 45(1) 48(1)). pars. against Greff and Dodson. plaint 1981, the motion in favor 30, granted
On October the court in- although parties It there were multiple Aetna. further stated that all case, proceed par- for relief could without the claim volved for delaying there no reason enforce- being just ties present ment or of the order. appeal complaint, plain- XIII of the fourth amended plaintiffs’
In count a to defend- provide defense tiffs contend defendant was policyprovides: ant Greff because “*** any to defend duty right shall have account of such on seeking damages suit if even property damage, false or fraudulent groundless, of the suit are If in cases such as this well defined. law general in but the coverage by reveals a defense, then exclusionary coverage it surer believes that has valid rights of its judgment either secure a (1) declaratory the insurer must rights, reservation of insured under a defending while *3 ad rights of and insured under a reservation defend the (2) suit, without a (3) or defend in a judicate coverage supplemental its v. Insur Casualty Surety & Co. Coronet right. (Aetna of reservation 744, 914.) The insurer is 3d 358 N.E.2d App. 44 Ill. (1976), ance Co. facts within alleges a state of obliged defend where un if a case only potentially even there is coverage (Sims v. Illinois policy. der within 184, 123.) 2d 193 N.E.2d 43 Ill. Casualty (1963), App. National Co. as to cover and all doubts liberally must be construed Royal v. La Rotunda of the insured. must be resolved favor age 446, 928. 3d 408 N.E.2d Ill. (1980), App. Insurance Co. 87 Globe 132, 144-45, 384 Ill. 2d 74 (1978), in Thornton v. Paul The opinion 335, 340, states: N.E.2d a complaint refuses to defend wrongfully
“When the insurer the insured it is liable to coverage, alleges facts within damages for The measure of contract. for breach [Citation.] judgment against the amount of generally a such breach in- settlement, plus any expenses of a the insured or reasonable curred.” de- failing to a contract already by breached has
Where insurer no coverage, reveal the facts fend where
931 the exclu- by that the insured be bound to insist right has longer any sion Sims. provisions. Ill. App. (1978), Inc. Building Systems, v. Wick
In Christensen court stated: 1189,1192, 908, 912, N.E.2d 3d the court on the pleadings, for judgment a motion deciding “In issue material a present the pleadings must determine whether issue, the such present if the pleadings [citation], of fact on the plead- for judgment The motion denied. motion must be opposing pleadings facts in the well-pleaded concedes the ings [citation], therefrom all fair inferences concedes [citation], far false in so are own concedes that the movant’s pleadings by opposing controverted as have been they [cita- does not test on the pleadings for judgment A motion tion]. whether there is for that support pleading, any evidence summary judgment.” a motion for is the province parties’ posi- of each support are advanced arguments Various with the the initial complaint by comparing portions tion VIII, the counts VII relying upon those Only arguments policy. Dodson, arguments, Of these are relevant. counts Greff of the case. dispose address three to we need for its conclu- (g) initially upon Aetna relies (g) provides: Exclusion potential coverage. sion that there is not even not apply: “This insurance does
* * * arising opera- out damage owned premises) than insured (other from premises tions on or insured, liability or to the named by rented to or controlled by, relat- or agreement contract the insured under assumed to such ing premises; purchase of a contract to the existence alleges
The initial complaint removed to be dismantled near which was Taylorville, designates The policy from those premises. Virden, Illi- Street, George corner of Church
“one acre southwest truck and tractors.” nois-storage of Aetna asserted coverage, denying
In Aetna’s letter to Greff Greff and out controlled operations arose out of *4 (g) ap- exclusion Greff. building by of a owned dismantling located building that the the fact challenge Plaintiffs do not plied. insured designated than the at a other place and the occurred injury it that is the assertion argument to this response Their premises. only the the time of Greff at by the was not owned building since there response to consider defendants’ necessary It is not injury. that “controlled” Greff allegations premises by are sufficient the were and Dodson. three, II,
Aetna cites four and six of count which paragraphs were into counts Greff and Dodson. incorporated VII VIII Those the existence of Greff and Dodson’s con paragraphs alleged terms building, tract to under the buy Taylorville of the contract the were to dismantle the cer buyers building, provide remove the building, tain materials to Kamar from the dismantled these refer building premises. Although from contract, to do under the those supposed what Greff and Dodson were them in asked to assist allege Tapp counts continue to that defendants while dis building Tapp injured and that dismantling infer Thus, necessarily counts VII and VIII mantling building. responsible Greff and Dodson were in control prem controlled the Since Greff and Dodson preventing injuries. such arose, the bodily injury ises and from which operations no to defend. duty and Aetna had applied cover- arguments support Plaintiffs advance two of exclusion age, notwithstanding language (g). de following provision first under the
They argue coverage scribing by policy: covered property attached additions structure(s) or shall include
“Building(s) for use in ***; intended supplies and extensions materials or struc- building(s) construction, repair or alteration designated ***; premises.” all while at the ture(s); that the vaguely asserts concerning provision this argument Plaintiffs’ occurred, supplies materials and using or while by, was caused there Whatever merit building. for use in construction intended that the Aetna out argument, points have to this may otherwise been stating “all coverage by modifies the last portion provision here materials involved Since the designated premises.” while at the designated rather than at were near Taylorville, Defendant Virden, Illinois, literally inapplicable. provision materials phrase this last qualifying out that without aptly points the insurance store would be covered at a retail purchased argument. in plaintiffs’ find no merit still in the store. We even while following coverage under assert plaintiffs Finally, provision: all sums on will behalf Company pay
“The as dam- pay legally the insured shall become to which damage ages because occurrence, arising out of caused applies, *5 the insured premises maintenance or use of ownership, the the to the or incidental business necessary all operations premises at or from the insured named insured conducted arose out of the “mainte- activity Taylorville Plaintiffs assert the in Virden; “necessary nance the located in was or use” of be insured; the and was conducted and incidental” to the business of Therefore, “from” in conclude premises they Virden. policy. the within the provision brings activity in initial argues allegations Aetna that there are no the alert it to the contention that the alleging operation facts which would business, was related to the insured of the insured. premises, A of counts shows that Greff and Dod- reading VII VIII son entered into a contract to intended to buy building they dismantle the disman- injured during and that Gene plaintiff Tapp tling allega- of this There is no reference in the building. absolutely tions to the at or the trucks. property storing Virden business themselves, From the had allegations insurance abso- lutely no indication that the actions were in related to the any way Virden or the truck The contract itself property, storage business. gives Street, Virden, the address of Illi- purchasers Liberty as 131 nois. It contains no references to the relocation site of the building. The designated are on the corner of premises George Church and Virden, streets in Illinois. There is no that anywhere indication Lib- Street, erty the address of the near the corner purchaser, anywhere of Church and George streets. argue
Plaintiffs that since the did not exclude that the possibility surrounding circumstances were related to the po insured and business such actions were purpose, tentially related to such insured and business.
defendant provide a defense to the insured. Although case law does state that the lack of coverage must be abso clear when lutely comparing the with the for an in policy surer to refuse to defend with we believe this state impunity, broad ment of presumes law that the some indication there complaint gives is a reason to believe is relevant to facts. allegations of counts no indica give absolutely VII VIII tion that the dismantling any way building Taylorville related to the insured the insured. There premises, or the business of fore, defendant was not any potential alerted coverage under the above need not determine provision, we whether the activities would otherwise come within the terms of this provision. reasons,
For the we conclude there was no state of foregoing and therefore potentially facts which were even covered of the trial court is affirmed. judgment Affirmed.
WEBBER, J., concurs. GREEN, specially concurring:
PRESIDING JUSTICE I concur in the decision to affirm the circuit court. that
I the court showed agree pleadings conclusively before *6 near where Thylorville Greff and Dodson had control Thus, stated, being demolished. allegedly It the provision controlled over conclusively applicable. shown be and we need not decide whether giving coverage, otherwise might the evidence of negated the pleadings otherwise exist. exist coverage might such potential
I take no as to whether position (g). of exclusion operation the absence Bohne, WILKENING, Deceased.-(Robert F. SARAH M. In re ESTATE OF Deceased, v. Plaintiff-Appellant, Wilkening, M. Ex’r of the Estate of Sarah Nicholson, Defendant-Appellee.) Thord C. (5th Division) No. 81 — 0746
First District 15, 1982. Opinion filed October