delivered the opinion of the court:
Wаyne Lee Thornton (plaintiff) filed a garnishment action in the circuit court of McLean County against Illinois Founders Insurance Company (Illinois Founders), the insurer for Ben Paul and Ben’s Den, Inc. (defendants), against whom plaintiff had been awarded a $30,000 default judgment for personal injuries. The trial court held that the exclusion clause in the policy of insurance relating to incidents arising out of assault and battery applied, thereby relieving Illinois Founders of liability. A majority of the appellate court reversed and remanded, finding that the trial court erred in striking certain evidence and in allowing costs incurred on appeal. (
This case has previously been before this court; therefore, we will only review the facts necessary for an understanding of the issues. (For a full recital of the facts, see Thornton v. Paul (1978),
Defendants notified their insurer, Illinois Founders, of the pending action and requested that it defend as provided in its policy of insurance. Illinois Fоunders refused, claiming the policy excluded incidents arising out of assault and battery. Although plaintiff later amended his complaint to add an allegation of negligence, Illinois Founders still refused to defend. Before the default judgment was entered, the parties entered into an agreement whereby plaintiff, in consideration of $100, agreed not to execute upon any judgment it might obtain against defendants and would seek satisfaction only from Illinois Founders. Subsequent to the default, plaintiff brought the instant garnishment proceeding. At thе conclusion of the garnishment hearing, Illinois Founders was ordered to pay the $30,000 judgment. Thereafter, Illinois Founders filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate the default judgment. The petition was denied. Illinois Founders appealed from both orders, and the appellate court affirmed. (
Upon retrial the only evidence introduced by plaintiff in his case in chief was the policy of insurance entered into by defendants and Illinois Founders. Under the policy “occurrence” was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” In addition, the following exclusion was appended to the policy:
“EXCLUSION OF ASSAULT AND BATTERY It is agreed that the insurance does not apply to Bodily Injury or Property Damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such assault and battery.”
Ben Paul was called as a witness by Illinois Founders. He testified to the follоwing version of the occurrence. The plaintiff and four other men entered Ben’s Den and began drinking. When they became rowdy, Paul repeatedly asked them to quiet down. He finally asked them to leave, but they refused. Plaintiff stated that he was going to “whip” Paul. Paul cаme around the bar with a stick, initially hoping to convince plaintiff to leave. When plaintiff refused, Paul struck him with the stick. Paul stated that he intended to strike plaintiff when the blow was struck. On cross-examination Paul stated that plaintiff and his friends were scuffling and throwing beer bottles and glasses.
Plaintiff was called as an adverse witness by Illinois Founders. He stated that, when he refused to leave the tavern at Paul’s request, Paul came from behind the bar and struck him in the head with a pool cue. Patrick Dawson, one of plaintiff’s companions on thе night in question, was called as a witness by plaintiff on rebuttal. He testified to substantially the same version of the incident. The trial court made the following ruling:
“that the proceedings which resulted in Ben Paul’s conviction of battery were essentially equivalent to a judgment of сonviction upon a negotiated plea of guilty to a lesser included offense.
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The mandate of the Illinois Supreme Court directs this court to consider only whether the defense of non-coverage that the defendant Paul’s conduct constituted a bаttery, could be established. The cases seem to limit explanations concerning criminal convictions to the reasons why the defendant decided to plead guilty (or in this case, to stipulate to facts establishing guilt). The cases appear not to рermit the defendant to offer an explanation in the nature of justification, self-defense or excuse. Since such explanations are impermissible, and the other defense of non-coverage that the Defendant Paul was engaged in acts ‘in cоnnection with the prevention or suppression of such assault and battery’ is beyond the express terms of the mandate, the testimony of the plaintiff, the plaintiff’s friends and the Defendant Paul relative to the plaintiff and his friends fighting and damaging property in Ben’s Den and the dеfendant’s attempt to abate such activities is inadmissible and ordered stricken.
The record in this garnishment hearing, purged of inadmissible testimony relative to justification and the activities of the defendant to suppress assault and battery, does establish an intentionаl striking of the plaintiff by the Defendant Paul and the injury of the plaintiff. Thus, even though the Defendant Paul’s conduct constituted negligence, there is also sufficient evidence that it constituted the intentional tort of battery which is excluded from coverage under the policy.”
At the conclusion of the garnishment proceeding, the trial court conducted a hearing on costs. The trial court awarded Illinois Founders $3,169.53 as costs incurred in this court. Included were attorney fees and the appeal-bond premium. Plaintiff appeаled both orders.
The appellate court held (1) that the provisions of the insurance policy were ambiguous; (2) that Illinois Founders was not precluded from raising noncoverage defenses in addition to the exclusion provision; (3) that the trial court erred in striking thе testimony presented at the garnishment proceeding regarding the events of January 1, 1973; and (4) that the trial court was not authorized to assess costs incurred in the reviewing courts.
In interpreting a contract of insurance the general rule is that where the provisiоns of a policy are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning. (Kirk v. Financial Security Life Insurance Co. (1978),
We next consider if the trial court appropriately excluded the evidence introduced in the garnishment proceeding. In our previous decision, this court remanded the cause to the trial сourt to allow the insurer to assert its defenses of noncoverage. We did not limit the remand to the defense based on the battery conviction as concluded by the trial court. In that decision this court also stated, “We are not concerned here with the effect of a guilty plea.” (
These cases are distinguishable from the case before us. There is no evidence that Paul’s criminal trial was a sham, as in Stepheny, or that he stipulated that the evidence was sufficient to convict, as in Smith. The appellate court found that where a defendant stipulates to facts underlying an offense but leaves the determination of guilt or innocence based on those facts to the trier of facts, the stipulation is not the equivalent of a guilty рlea. We agree.
Illinois Founders urges this court not to remand this case to the trial court for introduction of further testimony. It argues that the evidence introduced by plaintiff does not rebut the prima facie case of battery established by Paul’s conviction and that, therefore, the exclusion of the policy applies.
From a review of the record, we conclude that the total evidence introduced in the garnishment proceeding is not sufficient, as a matter of law, to overcome the prima facie evidence that a battery occurred.
For another reason, we find defendants were not covered under the policy of insurance. The testimony elicited from Paul established that when he struck the plaintiff he did so intentionally. Therefore, under the policy, the acts of Paul would not be covered since the definition of “occurrence” includes only acts “neither expected nor intended from the standpoint of the insured.”
Plaintiff claims that it was error for the trial court to award Illinois Founders cоsts on appeal. This issue was answered in People v. Nicholls (1978),
For the reasons stated, that portion of the appellate court judgment reversing the trial court’s award of costs on appeal is affirmed. That portion of the аppellate court judgment remanding the cause for further proceedings because of the finding of ambiguity is reversed. The judgment of the circuit court is vacated, and the cause is remanded to that court for entry of a judgment in conformance with the views expressed herein.
Appellate court affirmed, in part and reversed in part; circuit court vacated; cause remanded, with directions.