Erie Insurance Co. v. Gibbs

2023 IL App (3d) 220143Opinion filed February 16, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
ERIE INSURANCE COMPANY and ERIE ) Appeal from the Circuit Court
INSURANCE EXCHANGE, ) of the 18th Judicial Circuit,
) Du Page County, Illinois.
Plaintiffs-Appellees, )
)
v. )
) Appeal No. 3-22-0143
THOMAS R. GIBBS, D.D.S., and ANTHONY ) Circuit No. 21-MR-394
ADAMS, )
)
Defendants )
)
(Thomas R. Gibbs, D.D.S., ) The Honorable
) Paul M. Fullerton,
Defendant-Appellant). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Davenport and Hettel concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 In a separate criminal case, the defendant-appellant, Dr. Thomas Gibbs, stipulated to
intentionally pushing defendant Anthony Adams, thereby injuring Adams’s knee. Gibbs was
subsequently found guilty of misdemeanor criminal battery and sentenced. Adams then filed a
negligence action against Gibbs related to the incident.
¶2 The plaintiffs, Erie Insurance Company and Erie Insurance Exchange, filed a declaratory
judgment action alleging that they had no duty to defend or indemnify Gibbs in the negligence
action pursuant to the home insurance and umbrella policies Gibbs had with the plaintiffs. The
plaintiffs filed a motion for summary judgment, which the circuit court granted after finding that
the evidence conclusively established that Gibbs acted intentionally and, therefore, Gibbs’s
conduct was excluded from coverage by the policies. Gibbs appealed, alleging that the circuit
court erred when it (1) denied his motion to stay the declaratory judgment action pending the
resolution of the negligence action and (2) granted summary judgment in favor of Erie. We
affirm.
¶3 I. BACKGROUND
¶4 On April 19, 2021, Erie Insurance Company and Erie Insurance Exchange (hereinafter
Erie) filed a civil complaint against Dr. Thomas Gibbs and Anthony Adams. The complaint,
which was subsequently amended on July 26, 2021, sought a declaratory judgment that it did not
owe Gibbs a duty to defend and indemnify in a negligence action filed by Adams against Gibbs.
¶5 The complaint alleged that on August 14, 2018, the Downers Grove Police Department
responded to a call regarding a domestic dispute at Gibbs’s residence. Gibbs was taken to Good
Samaritan Hospital and found to have a 0.282 blood alcohol concentration. Hospital staff
reported that Gibbs was aggressive and violent and that he was spitting at and verbally abusing
the staff.
¶6 At approximately 5:37 a.m., nurse Megan Howard performed a routine check on Gibbs in
his room. Gibbs said he was “getting out of here.” Howard called for security, and Gibbs
urinated on the floor. Gibbs then approached Howard and told her to get him “out of this f***
2
room.” He also grabbed Howard’s arm. At that time, Adams, who was an emergency room
technician, came into the room to assist. Gibbs resisted and pushed Adams to the floor.
¶7 Two misdemeanor criminal battery cases were filed against Gibbs as a result of the
hospital incident. In the first case, Du Page County circuit court case No. 18-CM-1790, the State
alleged that Gibbs intentionally pushed Adams, thereby causing injury to Adams’s left knee. 1 In
the second case, Du Page County circuit court case No. 18-CM-1865, the State alleged that
Gibbs grabbed and squeezed Howard’s right forearm. On July 30, 2019, Gibbs was found guilty
in both cases after he stipulated to the facts as alleged by the State. 2 There was no agreement on
sentencing.
¶8 Additionally, the Erie complaint alleged that Gibbs pled guilty in a federal criminal fraud
case on December 11, 2019. The complaint stated that, at sentencing on July 22, 2020, Gibbs
addressed the court, stating that he had initially been offered pretrial diversion with probation
and expungement of the charges after one year, but that offer had been revoked due to the state
criminal battery cases. Gibbs stated, in part, that “[the offer] was no longer an option when I
accepted responsibility for a misdemeanor battery charge that occurred on the night that my 41-
year-marriage collapsed. I was taken drunk from my residence to the hospital.”
¶9 The complaint also alleged that, on July 31, 2020, Adams filed a negligence action
against Gibbs, alleging that Gibbs failed to (1) “drink in a reasonable manner,” (2) “urinate in a
reasonable manner,” (3) “urinate in a reasonable location,” and (4) “reasonably respond to
plaintiff’s attempts to help him.” Adams’s negligence action further alleged that Gibbs “[c]aused
plaintiff to slip” and that he sustained severe and permanent injuries as a result.
1
Documents in the record indicated that Adams suffered a broken kneecap.
2
The record on appeal contains the transcript from the criminal battery cases; Gibbs’s counsel
clearly stated that Gibbs was stipulating to the facts but pleading not guilty.
3
¶ 10 Erie’s complaint further stated that it had issued a general home insurance policy and an
umbrella policy to Gibbs and his wife that was effective during the time the hospital incident
took place. The general policy obligated Erie to “pay all sums up to the amount shown on the
‘Declarations’ which ‘anyone we protect’ becomes legally obligated to pay as damages because
of ‘bodily injury’ *** caused by an ‘occurrence’ during the policy period.” “Bodily injury” was
defined as including physical harm. “Occurrence” was defined as “an accident, including
continuous or repeated exposure to the same general harmful conditions.”
¶ 11 The general policy excluded bodily injury that, inter alia, was “expected or intended” by
the insured even if “the degree, kind or quality of the injury *** is different than what was
expected or intended ***.” It also excluded coverage for “claims or suits seeking damages,
including defense of same, for any person who actively participates in any act of *** physical
*** abuse of any person,” excepting certain conduct not applicable in this case.
¶ 12 The umbrella policy obligated Erie to “pay the ultimate net loss which anyone we protect
becomes legally obligated to pay as damages because of personal injury or property damage
resulting from an occurrence during this policy period.” “Personal injury” included “bodily
injury,” which the umbrella policy defined as including physical harm. “Occurrence” was
defined in relevant part as “an accident *** which results in personal injury *** which is neither
expected nor intended.”
¶ 13 The umbrella policy contained exclusions for, inter alia, personal injury that the insured
intended or that resulted from physical abuse by the insured.
¶ 14 Erie’s complaint alleged that neither the general policy nor the umbrella policy provided
coverage for at least the following reasons: (1) the facts did not allege an “occurrence,” (2) the
exclusion for intentional acts applied, and (3) the exclusion for physical abuse applied.
4
¶ 15 On August 20, 2021, Gibbs filed a motion for judgment on the pleadings or, in the
alternative, to stay the declaratory judgment action pending judgment in the negligence action. In
essence, Gibbs alleged that Erie was improperly asking the circuit court to make findings of fact
in the negligence action that would ultimately determine Gibbs’s liability in that action. Gibbs
sought a ruling that Erie had a duty to defend him in the negligence action. Gibbs also argued
that “[a]t an absolute minimum, this case should be stayed or dismissed pending resolution of the
underlying Adams case.”
¶ 16 Three days later, Adams also filed a motion to stay the declaratory judgment proceedings.
In part, Adams’s motion alleged that there was an undecided question as to whether Gibbs was
so intoxicated that the exclusionary clauses from his policies would not apply.
¶ 17 On November 16, 2021, the circuit court held a hearing at which it heard arguments on
whether the case should be stayed. The court refused to stay the case and gave Erie 28 days to
file a cross-motion for judgment on the pleadings or a motion for summary judgment.
¶ 18 Erie filed a motion for summary judgment on December 14, 2021. In part, Erie’s motion
argued that Gibbs and Adams should be collaterally estopped from contesting Gibbs’s
convictions for criminal battery. Additionally, Erie’s motion argued that because Gibbs’s
conduct was intentional, it (1) did not qualify as an “occurrence” under the policies and
(2) triggered both the intentional act and physical abuse exclusions.
¶ 19 On March 10, 2022, the circuit court held a hearing on Gibbs’s motion for judgment on
the pleadings and Erie’s motion for summary judgment. The parties addressed the applicability
of collateral estoppel, with Erie arguing that it applied in that “the cause of Dr. Gibbs’
unprovoked attack on Mr. Adams has already been determined.” Erie also emphasized that Gibbs
intentionally battered Adams and that the issue in the declaratory judgment action was identical
5
in that it alleged no duty to defend based on Gibbs’s intentional conduct, which was the cause of
Adams’s injury. Gibbs argued that granting declaratory relief in favor of Erie would improperly
decide material issues of fact for the negligence action. Gibbs also argued that there was no
identity of issues between the criminal cases and the declaratory judgment action because
intentional conduct exclusions are irrelevant to a negligence claim.
¶ 20 The circuit court noted that the law permitted it to look outside of the policies “when
there’s unusual circumstance involved.” The court noted that Gibbs stipulated to the facts in the
criminal cases, thereby “admitting that in the event these witnesses would come in to testify that
these injuries occurred, he agreed, and that’s why he was convicted.” The court also found that
collateral estoppel applied such that summary judgment in favor of Erie was appropriate.
Concomitantly, the court denied Gibbs’s motion for judgment on the pleadings.
¶ 21 Gibbs appealed from the circuit court’s November 16, 2021, order on his motion to stay
and on the court’s March 10, 2022, final order.
¶ 22 II. ANALYSIS
¶ 23 A. Motion to Stay
¶ 24 Gibbs’s first argument on appeal is that the circuit court erred when it denied his motion
to stay the proceedings pending the outcome of the negligence action. Gibbs claims that the court
“impermissibly interfered with a material issue of fact critical to the underlying case.” More
specifically, he contends that the court found that he intended to harm Adams, which was
dispositive of the elements Adams needed to prove to be entitled to recovery in the negligence
action.
¶ 25 The circuit court has the inherent authority to control the disposition of its cases. Cullinan
v. Fehrenbacher, 2012 IL App (3d) 120005, ¶ 10. In exercising that authority, the court may
6
grant motions to stay after considering matters such as “the orderly administration of justice and
judicial economy.” Pekin Insurance Co. v. Johnson-Downs Construction, Inc., 2017 IL App (3d)
160601, ¶ 10. We review a circuit court’s decision on a motion to stay for an abuse of discretion.
Id.¶ 26 Generally, when a court is faced with a declaratory judgment action regarding an
insurer’s duty to defend, the court looks to the allegations in the underlying complaint and the
relevant provisions contained in the policy. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455
(2010). The duty to defend arises even if the facts of the underlying complaint only potentially
fall within the ambit of the policy. Id.¶ 27 However, our supreme court has clarified that a court is not limited to the underlying
complaint when considering whether the duty to defend arises. Id. at 461-62. The insurer “ ‘may
properly challenge the existence of such a duty by offering evidence to prove that the insured’s
actions fell within the limitations of one of the policy’s exclusions.’ ” Id. at 461 (quoting Fidelity
& Casualty Co. of New York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304 (1983)). In
Wilson, our supreme court also quoted with emphasis the following statement from the
Envirodyne court:
“ ‘To require the trial court to look solely to the complaint in the
underlying action to determine coverage would make the declaratory
proceeding little more than a useless exercise possessing no more
attendant benefit and would greatly diminish a declaratory action’s
purpose of settling and fixing the rights of the parties.’ ” (Emphasis
omitted.) Id. (quoting Envirodyne, 122 Ill. App. 3d at 305).
7
¶ 28 A limitation exists on the ability of the circuit court to consider such extrinsic evidence;
however, it is not permitted “ ‘when it tends to determine an issue crucial to the determination of
the underlying lawsuit.’ ” Id. (quoting Envirodyne, 122 Ill. 2d at 304-05). This limitation is
commonly called the Peppers doctrine, stemming from our supreme court’s decision in
Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197 (1976). The Second District offered a
cogent explanation of the reason for the Peppers doctrine in State Farm Fire & Casualty Co. v.
John, 2017 IL App (2d) 170193, ¶ 23:
“The concern is that prematurely adjudicating such issues in the
declaratory judgment action would result in collateral estoppel in the
underlying litigation. [Citation.] The classic scenario is where an insured
is sued and the allegations of the complaint potentially fall within the
scope of the insurance policy, thus triggering the insurer’s duty to defend,
but the insurer denies coverage based on an intentional-injury exclusion in
the policy. Courts have explained that, in such circumstances, the issue of
the insured’s intent should be litigated in the underlying tort action, not the
declaratory judgment action.”
¶ 29 In practice, however, extrinsic evidence from criminal convictions, including stipulations
made in those cases, can be used in declaratory judgment actions to determine whether the duty
to defend arises. See, e.g., Country Mutual Insurance Co. v. Dahms, 2016 IL App (1st) 141392,
¶ 77; Allstate Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 774-75 (1990). In Dahms, the First
District noted that it need not turn a blind eye to the fact that “plaintiffs may have an incentive to
draft pleadings in a way that triggers the defendant’s insurance coverage.” Dahms, 2016 IL App
(1st) 141392, ¶ 47. Thus, the label used by a plaintiff in an underlying action is not dispositive.
8
“Even where a complaint alleges an act is ‘negligent,’ if the allegations show that what is truly
alleged can only be characterized as an intentional act, the substance will control over the
moniker placed on it by a plaintiff.” Id.¶ 30 In Carioto, the First District found that conclusive evidence of an insured’s intent can
arise from a criminal conviction in combination with judicial admissions made by the insured.
Carioto, 194 Ill. App. 3d at 774-75. In that case, an insured had pled guilty to attempted murder
after stabbing the victim 15 to 17 times. Id. at 770. While the insured was serving his prison
sentence, the victim filed a negligence action against the insured, alleging intentional acts only.
Id. at 771, 773. Several years later, however, the victim amended the complaint to allege
negligent acts. Id. at 771. The Carioto court found the negligence allegations to be facetious,
ruling that no controversy existed over whether the insured’s actions were intentional. Id. at 775.
In fact, the nature of the crime and the insured’s judicial admission in a deposition that he acted
intentionally provided conclusive evidence of intentional conduct for the Carioto court. Id. The
court concluded that “we believe it is proper for a declaratory judgment court to decide the
coverage issue before resolution of the tort action in the rare case, such as this one, where there is
conclusive evidence that the insured acted intentionally.” Id. at 776.
¶ 31 Ten years after Carioto, our supreme court decided American Family Mutual Insurance
Co. v. Savickas, 193 Ill. 2d 378 (2000). In part, the Savickas court held that a criminal conviction
“collaterally estops the retrial of issues in a later civil trial that were actually litigated in the
criminal trial.” (Internal quotation marks omitted.) Id. at 384; see also Restatement (Second) of
Judgments § 85(2) (1982) (stating that issues determined in a criminal conviction have
preclusive effect if the requirements for collateral estoppel are met).
9
¶ 32 In this case, the concerns underlying the Peppers doctrine are not present because, like
the situation in Carioto, the insured here (Gibbs) was not only convicted of criminal battery, but
he also (1) stipulated to the facts, i.e., intentionally pushing Adams, thereby causing injury, and
(2) further corroborated his intentionality in his federal criminal fraud case by stating he
“accepted responsibility for a misdemeanor battery charge.” Further, and more importantly,
under Savickas, Gibbs’s criminal conviction—in which the question of whether he acted
intentionally was actually litigated—can have preclusive effect in the declaratory judgment
action. Savickas, 193 Ill. 2d at 384. Under these circumstances, we hold that there was
conclusive evidence of Gibbs’s intentional conduct such that the circuit court could consider the
extrinsic evidence and issue a decision in the declaratory judgment action. See id. Accordingly,
we hold that the circuit court did not err when it denied Gibbs’s motion to stay the declaratory
judgment action pending the resolution of the negligence action.
¶ 33 B. Summary Judgment
¶ 34 Gibbs’s second argument on appeal is that the circuit court erred when it granted
summary judgment in favor of Erie. Specifically, Gibbs argues that the elements of collateral
estoppel have not been met and, even if they had been, an exception to the doctrine prevents its
application in this case because he did not have an incentive to litigate the intentionality of his
conduct in the misdemeanor criminal battery case.
¶ 35 Summary judgment is appropriate when the pleadings—together with the affidavits,
depositions, and admissions on file—“show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2018). We review a circuit court’s decision on summary judgment de novo. Cohen v.
Chicago Park District, 2017 IL 121800, ¶ 17.
10
¶ 36 As we stated above, Illinois law allows a circuit court to decide a coverage issue in a
declaratory judgment action before the underlying tort action is resolved, when conclusive
evidence exists that the insured acted intentionally. Dahms, 2016 IL App (1st) 141392, ¶¶ 77-79;
Carioto, 194 Ill. App. 3d at 776. Further, a criminal conviction can collaterally estop the retrial
of any issues in a subsequent civil trial that were actually litigated in the criminal trial. Savickas,
193 Ill. 2d at 384. The remaining question for this court is whether the elements of collateral
estoppel have in fact been met. Id. at 387.
¶ 37 The doctrine of collateral estoppel has three elements: (1) identity of issues between the
former adjudication and the case at issue, (2) a final judgment must have been issued in the
former adjudication, and (3) the party sought to be estopped must have been a party or in privity
with the party from the former adjudication. Id. “Additionally, the party sought to be bound must
actually have litigated the issue in the first suit and a decision on the issue must have been
necessary to the judgment in the first litigation.” Id. There is no question in this case that
elements two and three have been met. The only question is whether the first element has been
met.
¶ 38 The fatal flaw in Gibbs’s argument regarding the first element is that he claims there is no
identity of issues between the misdemeanor criminal battery case and the underlying action. The
correct analysis for collateral estoppel purposes, however, is between the misdemeanor criminal
battery case and the declaratory judgment action.
¶ 39 It is clear that when the analysis is performed correctly, the identity-of-issues element is
met in this case. The question of whether Gibbs acted intentionally was actually litigated in the
criminal case alleging battery of Adams (case No. 18-CM-1790). Gibbs stipulated to the State’s
facts, which included the assertion that he intentionally pushed Adams, causing his injury, but
11
pled not guilty. The circuit court determined that Gibbs acted intentionally. Now, in this
declaratory judgment action, Erie claims that it has no duty to defend in part because Gibbs acted
intentionally, thereby triggering an exclusion for injuries to others caused by physical abuse on
the part of the insured. Those issues are the same.
¶ 40 Having determined that the first element of collateral estoppel has been met, coupled with
the fact that the other two elements are not contested, we now hold that collateral estoppel can
apply in this case; the only question left to answer is whether it is fair to do so. See Savickas, 193
Ill. 2d at 388 (holding that “[e]ven when the threshold requirements are satisfied, the doctrine
should not be applied unless it is clear that no unfairness will result to the party sought to be
estopped”).
¶ 41 Gibbs claims that it would be unfair to apply collateral estoppel in this case because he
did not have an incentive to litigate the intentionality of his conduct in the criminal battery case.
He states, “it is clear from the record that Gibbs stipulated to facts for the opportunity for a light
sentence and a clean record considering his occupational status.” He cites to two cases in support
of his argument—Talarico v. Dunlap, 177 Ill. 2d 185 (1997), and Allstate Insurance Co. v.
Kovar, 363 Ill. App. 3d 493 (2006). We will address those cases in turn.
¶ 42 In Talarico, on two dates in August 1986, Talarico shocked two people with a stun gun.
Talarico, 177 Ill. 2d at 188. In the second incident, he also grabbed the victim’s genitals and
kissed him several times on the face. Id. As a result of the incidents, Talarico was charged with
aggravated battery, aggravated unlawful restraint, armed violence, and aggravated criminal
sexual abuse. Id. In a plea agreement, he pled guilty to two counts of misdemeanor criminal
battery and stipulated to the facts of the crimes, admitting that he committed the crimes
intentionally and without legal justification. Id.12
¶ 43 After he received a pardon from the governor, Talarico filed a medical malpractice action
against several parties, including the doctor who had prescribed acne medication to him. Id. at
188-89. The complaint alleged that the medication’s side effects subjected Talarico to an
unreasonable risk and that the defendants failed to properly monitor him. Id. at 189. The
complaint further alleged that the defendants’ failings resulted in the criminal activity for which
Talarico had pled guilty. Id.¶ 44 The circuit court granted summary judgment in favor of the defendants, who had argued
that Talarico’s guilty plea collaterally estopped him from arguing that his criminal conduct was
caused by his acne medication. Id. The appellate court reversed. Id.¶ 45 Our supreme court examined the applicability of collateral estoppel to the case. Because
the three elements of the doctrine had been satisfied, the only question was whether the
“incentive to litigate” exception applied. Id. at 193.
¶ 46 Of particular significance to the court’s analysis was the fact that Talarico entered into a
negotiated guilty plea. Id. at 195-96. In analyzing the circumstances of Talarico’s plea, the court
stated,
“we conclude that only in the most technical sense was Talarico’s guilty plea an
admission that his criminal conduct was knowing and intentional. The record makes
apparent that the plea was a compromise: never is it conceded that [the acne medication]
was not the contributing factor to Talarico’s criminal conduct.” Id. at 196.
That fact, plus several others noted by the court, such as the significant reduction in charges and
sentence, contributed to a finding that Talarico did not have full incentive to litigate the criminal
offense such that collateral estoppel should not apply. Id. at 198.
13
¶ 47 Justice McMorrow dissented, commenting on how damaging she believed it was to our
justice system that the majority would allow an individual to “deliberately and knowingly
forfeit[ ] the opportunity to assert that his violent conduct was actually caused by a third party’s
negligence in prescribing acne medication” but then allow that individual to repudiate his
admission of criminal intent in a civil case in an attempt to gain financially from his own
criminal conduct. Id. at 200-01 (McMorrow, J., dissenting).
¶ 48 We find Talarico to be distinguishable. First, that case did not involve a declaratory
judgment action like this case. Second, there is no question in this case about reduced culpability
like there was with the acne medication in Talarico. Third, Talarico involved a negotiated guilty
plea, while in this case Gibbs stipulated to the facts but still pled not guilty. In this regard, we
note the Talarico court’s statement that “[o]rdinarily, when a fact has been admitted by a litigant,
it is reasonable to presume that the fact is established and that the fact should not be subject to
relitigation. We do not believe, however, that the same may be said in every case of a negotiated
guilty plea.” (Emphasis added.) Id. at 195 (majority opinion). Fourth, Talarico was decided
before Savickas, which, as we have already mentioned, held that a criminal conviction
“collaterally estops the retrial of issues in a later civil trial that were actually litigated in the
criminal trial.” (Internal quotation marks omitted.) Savickas, 193 Ill. 2d at 384. For these reasons,
Talarico is of little value to the disposition of this appeal.
¶ 49 Gibbs’s citation to Kovar is similarly of no avail. In Kovar, a scuffle took place between
William Eckert, Daniel Kovar, and Christopher Kovar on one side and Antonio Estephan and
two unnamed individuals on the other side. Kovar, 363 Ill. App. 3d at 495. During the encounter,
Estephan sustained a cut. Id. At some point thereafter, Estephan filed a negligence action against
numerous defendants, including Eckert, Daniel, and the estate of Christopher, who had died
14
between the scuffle and the filing of Estephan’s civil complaint. Id. The complaint alleged that
one of the defendants had waved a sharp object near Estephan, which resulted in the cut. Id.
Alternatively, the complaint alleged that either Eckert or Daniel had pushed Christopher into
Estephan, who was cut by a sharp object being held by Christopher. Id.
¶ 50 Allstate Insurance Company, which had issued a homeowner’s policy that covered the
Kovars, filed a declaratory judgment action alleging it had no duty to defend the Kovars because
the policy contained an exclusion for injuries “ ‘intended by, or which may reasonably be
expected to result from the intentional or criminal acts or omissions of, any insured person.’ ” Id.
¶ 51 Allstate subsequently moved for summary judgment in the declaratory judgment action.
Id. Attached to that motion was a copy of a court order that showed Daniel had pled guilty to
battery. Id. at 496. No underlying facts were included in that court order. Id. The circuit court
granted Allstate’s motion for summary judgment. Id.
¶ 52 Attached to a motion to reconsider was Daniel’s deposition, which had been taken in
connection with the negligence action. Id. In his deposition, Daniel stated, inter alia, that he did
not know how Estephan was cut. Id. at 497. He did not have any weapons on him and did not
think Eckert or Christopher did, either. Id. When he and Christopher fled the scuffle in his
vehicle, Christopher said, “ ‘[t]hat kid was cut pretty bad.’ ” Id. Christopher then threw a pocket
knife out the window. Id.
¶ 53 Daniel further stated, in his deposition, that he was charged with battery and consumption
of alcohol by a minor in connection with the incident. Id. at 498. “To avoid having a conviction
show up on his record, Daniel said, he pleaded guilty to battery with the understanding that the
conviction would be removed from his record if he complied with the terms of his plea
agreement.” Id.
15
¶ 54 The circuit court denied the motion to reconsider, and both Estephan and the Kovars
appealed. Id.
¶ 55 Regarding collateral estoppel, the Second District initially found that the doctrine’s first
element had not been met. Id. at 502. First, the Kovar court found that no facts underlying
Daniel’s conviction had been provided. Id. Thus, there was no basis to find that the issue decided
in the criminal case was the same issue in question in the underlying negligence action. Id.
¶ 56 The Kovar court also found that, even if the three elements of collateral estoppel had
been met, the doctrine still would not have applied because there was no incentive for Daniel to
fully litigate the issue in the criminal case. Id. at 503. The court premised that finding on the fact
that Daniel pled guilty only due to the opportunity for a light sentence and a clean record. Id. at
504.
¶ 57 We find Kovar, like Talarico, to be distinguishable. First, Kovar involved a negotiated
guilty plea, unlike this case. Second, there was no identity of issues due to a dearth of facts
surrounding Daniel’s guilty plea. In this case, we know what occurred because Gibbs stipulated
that he intentionally pushed Adams, thereby causing injury. Third, the entire discussion of
whether it would be fair to apply collateral estoppel was dicta, as the case was decided on the
first element of collateral estoppel not being met.
¶ 58 What we find particularly disingenuous about Gibbs’s argument on this issue is that he
did litigate the issue of his intent in the criminal battery case. He stipulated to the facts, but he
still contested his guilt by pleading not guilty. Further, there was no agreement with the State
regarding a reduced charge or sentence, so it cannot be reasonably argued that he stipulated to
the facts to obtain a “light sentence” or “clean record,” unlike the situation in Kovar. In that
sense, this case is more analogous to Savickas, in which the insured went to trial on a first degree
16
murder charge and was convicted (Savickas, 193 Ill. 2d at 380). During the trial, the insured
“admitted that the gun did not go off accidentally.” Id. at 382. In addition, “[h]e testified to the
effect that he intentionally pointed the gun at the decedent and intentionally pulled the trigger
while the gun was so aimed.” Id.¶ 59 In Savickas, the court found that all three elements of collateral estoppel had been met
and that Savickas’ criminal conviction and judicial admissions constituted conclusive evidence
of his intentionality. Id. at 388-89. The same has occurred in this case with Gibbs. Additionally,
the Savickas court found no unfairness in applying collateral estoppel, as “Savickas had a full
and fair opportunity to litigate all relevant issues in his criminal trial, and did so.” Id. at 389. We
find the same conclusion must be drawn in this case.
¶ 60 For the foregoing reasons, we hold that the circuit court did not err when it granted
summary judgment in favor of Erie. Erie has no duty to defend and indemnify Gibbs in the
underlying negligence action, based on the policies’ exclusions related to intentional acts and
physical abuse.
¶ 61 Lastly, we note that Gibbs has repeatedly argued in his brief that Erie is attempting to
apply collateral estoppel to the underlying negligence action. Gibbs’ argument is without merit.
An excellent explanation of the resolution of a coverage issue in a declaratory judgment action
can be found in Dahms. In Dahms, after the court found that it was appropriate to consider
Dahms’ criminal conviction in the declaratory judgment action, the court stated the following:
“We are not prematurely deciding an issue in the underlying Tort Case.
We are not determining whether Dahms’s conduct was negligent versus
intentional for purposes of the Tort Case. There is no issue of collateral
estoppel caused by our ruling. Nor are we finding that Dahms committed a
17
criminal act; a jury already did that. We are just acknowledging the fact of
his conviction and finding that, in light of that undisputed fact, a policy
exclusion applies. Whatever preclusive effect Dahms’s conviction may or
may not have on the Tort Case is independent of anything we have said
here.” Dahms, 2016 IL App (1st) 141392, ¶ 78.
¶ 62 In other words, Gibbs’s fear that a ruling on the coverage issue in this case will have
preclusive effect in the negligence action is unfounded. See id.¶ 63 III. CONCLUSION
¶ 64 The judgment of the circuit court of Du Page County is affirmed.
¶ 65 Affirmed.
18
Erie Insurance Co. v. Gibbs, 2023 IL App (3d) 220143Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 21-MR-
394; the Hon. Paul Fullerton, Judge, presiding.
Attorneys Christopher J. Pickett, Peter G. Syregelas, and Haley M. Loutfy,
for of Lindsay, Pickett & Postel, LLC, of Chicago, for appellant.
Appellant:
Attorneys Douglas M. DeWitt and David C. Butman, of Hinkhouse
for Williams Walsh LLP, of Chicago, for appellees.
Appellee:
19