Illinois Farmers Insurance Co. v. Kure

No. 3-05-0262
______________________________________________________________________
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filed April 3, 2006
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
ILLINOIS FARMERS INSURANCE ) Appeal from the Circuit Court
COMPANY, ) for the Twelfth Judicial Circuit,
) Will County, Illinois
Plaintiff-Appellant, )
)
v. ) No. 04-MR-118
)
THOMAS KURE AND CINDY KURE, ) The Honorable
) Herman S.
Haase,
Defendants-Appellees. )
Judge, Presiding.
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JUSTICE McDADE delivered the opinion of the court:
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Plaintiff-appellant, Illinois Farmers Insurance Company (Farmers) filed a
complaint seeking declaratory judgment that it has no duty to defend or indemnify
defendants-appellees, Matthew Kure and his parents, Thomas and Cindy Kure, against
a negligence lawsuit against Matthew. Defendants filed a counterclaim seeking
declaratory judgment that Farmers does have a duty to defend and indemnify. The
parties filed motions for summary judgment. Following a hearing, the circuit court of Will
County granted Farmers= motion as to Matthew, denied its motion as to Thomas and
Cindy, denied defendants= motion for summary judgment as to Matthew and granted
defendants= motion as to Thomas and Cindy. For the reasons that follow, we affirm.
BACKGROUND
Farmers insures Matthew Kure and his parents Thomas and Cindy under a
homeowner=s liability policy. Kyle Signorelli and his parents filed a complaint against
Matthew, Thomas, and Cindy Kure seeking damages for injuries he sustained as the
result of an altercation between Kyle and Matthew. The complaint alleged that Matthew
started an altercation with Kyle and that during the course of the altercation Matthew
executed a "pile-driver" type of maneuver by lifting Kyle from the ground then driving
Kyle=s head into the ground with the weight of his body. As a result Kyle is paralyzed
from the neck down.
Count I of the Signorelli complaint alleged that Matthew negligently injured Kyle.
Count II alleged Thomas and Cindy Kure were negligent for providing Matthew with the
vehicle he used to travel to Kyle=s house and for failing to control their son. Count IV
alleged willful conduct and battery against Matthew. The remaining counts of the
Signorelli complaint are not at issue in this appeal.
Thomas and Cindy sought coverage for defense of the complaint and indemnity
from Farmers. Farmers filed an action for declaratory judgment that it has no duty to
defend or indemnify Matthew, Thomas, or Cindy because (1) the Kures= policy covered
occurrences, (2) the policy defined an "occurrence" as an accident, and (3) the injury
did not result from an accident. Farmers also alleged it has no duty to defend or
indemnify based on the policy=s intentional conduct exclusion. Farmers argued that
Thomas and Cindy did not have coverage for their allegedly "negligent" conduct
because Matthew=s conduct was intentional. Thomas and Cindy responded that the
allegations against them were based on negligence, not intentional conduct, and
therefore the exclusion did not apply.
Following argument the trial court found that Farmers has a duty to defend
Thomas and Cindy. The court found that Farmers did not have a duty to defend or
indemnify Matthew. The court granted Farmers= motion for summary judgment as to
Matthew, denied Farmers= motion as to Thomas and Cindy, denied Matthew=s motion
for summary judgment, and granted Thomas and Cindy=s motion for summary
judgment. Finally, the court entered an order that no just reason existed to delay appeal
of its order. Farmers appeals the court=s order granting Thomas and Cindy=s motion for
summary judgment on its action seeking a declaratory judgment that Farmers has a
duty to defend the complaint against Thomas and Cindy. Matthew did not file a cross-
appeal of the court=s order denying his motion for summary judgment.
ANALYSIS
Summary judgment is proper where, when viewed in the light most favorable to
the nonmoving party, the pleadings, depositions, admissions, and affidavits on file
reveal 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 2000). "The
standard of review for the entry of summary judgment is de novo." General Casualty
Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18, 20 (2002).
"It is the general rule that the duty of the insurer is determined by the
allegations of the underlying complaint. [Citation.] A duty to defend arises
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if the complaint's allegations fall within or potentially within the coverage
provisions of the policy. *** The threshold requirements for the
complaint's allegations are low. [Citation.] In a court's determination of the
duty to defend, the underlying complaint is to be liberally construed in
favor of the insured, and doubts and ambiguities are to be construed in
favor of the insured. [Citation.] A determination regarding an exclusionary
clause is subject to the same liberal standard. *** Co., 144 Ill. 2d at 73,
578 N.E.2d at 930." Lyons v. State Farm Fire and Casualty Co., 349 Ill.
App. 3d 404, 406-07, 811 N.E.2d 718, 721-22 (2004).
The sole issue before us is whether Farmers had a duty to defend Thomas and
Cindy under their homeowner=s liability policy. That policy states, in pertinent part, as
follows:
"We will pay those damages which an insured becomes legally obligated
to pay because of bodily injury, property damage or personal injury
resulting from an occurrence to which this coverage applies.
s
injuries were not accidental when it found Farmers has no duty to defend Matthew.
Farmers argues that because "there is no separate bodily injury being claimed by [Kyle]
which result[ed] from the alleged negligent conduct of Thomas and Cindy Kure," Kyle=s
injuries were not the result of an Aoccurrence@ and the policy does not apply.
In support of its second argument, Farmers cites, inter alia, Northbrook Property
& Casualty Co. v. Transportation Joint Agreement, 194 Ill. 2d 96, 741 N.E.2d 253
(2000). That case arose from an accident where "a METRA train collided with a school
bus operated jointly by the school districts. Several students were killed and many
others were injured, resulting in numerous lawsuits against the school districts."
Transportation Joint Agreement, 194 Ill. 2d at 97, 741 N.E.2d at 254. Northbrook
insured the school districts under a commercial general liability policy. That policy
contained the following exclusion:
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"<"Bodily injury" or "property damage" arising out of the ownership,
maintenance, use or entrustment to others of any aircraft, "auto" or
watercraft owned or operated or rented or loaned to any insured.
Use includes operation and "loading or unloading." *** "Auto"
means a land motor vehicle, trailer or semitrailer designed for travel
on public roads, including any attached machinery or equipment.="
Transportation Joint Agreement, 194 Ill. 2d at 98, 741 N.E.2d at
254.
The trial court held that Northbrook "had no duty to defend the school districts
against the students' lawsuits because the injuries arose out of the use or operation of a
bus." The appellate court reversed, finding that "the students' lawsuits against the
school districts adequately alleged that the injuries could have arisen from causes other
than use or operation of the bus, such as failure of the school districts to adequately
plan and inspect bus routes and warn bus drivers of potential hazards." Transportation
Joint Agreement, 194 Ill. 2d at 98, 741 N.E.2d at 254. The supreme court reversed the
appellate court, reasoning as follows:
"The policy excludes injuries arising from the school districts' use or
operation of a motor vehicle. Allegations that the school districts
inadequately planned and inspected bus routes or failed to warn bus
drivers of potential hazards along the routes are nothing more than
rephrasings of the fact that the students' injuries arose from the school
districts' use or operation of a motor vehicle. Contrary to the appellate
court's holding, the students' complaints failed to allege that the injuries
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arose from events 309 Ill. App. 3d 261, 266 (1999)"
Transportation Joint Agreement, 194 Ill. 2d at 98-99, 741 N.E.2d at 254.
Farmers argues for a similar result here, where the policy excludes coverage for injuries
arising from intentional acts and allegations that Thomas and Cindy failed to adequately
supervise Matthew are nothing more than rephrasings of the fact that Kyle=s injury arose
from an intentional act by an insured.
Thomas and Cindy respond to both of Farmers= arguments by first asserting that,
under this policy, "[w]hether one who contributes to an injury is negligent is independent
from the question of whether another who directly caused the injury acted intentionally."
This is because the policy contains a severability clause that states "[t]his insurance
applies separately to each insured." Thomas and Cindy reason that because of the
severability clause, the court is bound to determine whether an "occurrence" occurred
as if Thomas and Cindy were the only insureds.
In support of that argument, they cite King v. Dallas Fire Insurance Co., 85
S.W.3d 185, 187, 191 (Tex. 2002), a case decided by the Supreme Court of Texas. In
King the insured=s employee intentionally injured a third party. The injured party sued
the insured for negligent hiring, training, and supervision. The issue in that case was
"whether an employer's alleged negligent hiring, training, and supervision constitute[d]
an King, 85 S.W.3d at 188.
The policy in King contained language stating that the insurance applied as if
each named insured were the only named insured and separately to each insured
against whom a claim is made. The policy further provided that the court was to treat
each named insured as if she were the only named insured. The court concluded that
from the employer=s standpoint the allegations of the complaint alleged an "occurrence"
in part because to hold otherwise would impute the intentional actor=s intent to the
separate insured. The court found that at its core, the insurer=s argument was that the
insured=s employee's intent should control whether there is a duty to defend the insured
under the policy. The court held "that argument not only ignores the policy language
that delineates between separate insureds, it also ignores the intended-injury exclusion
provision. That exclusion, which excludes coverage for injuries King, 85
S.W.3d at 189.
Finally, Thomas and Cindy respond that Farmers is seeking to impute Matthew=s
intentional conduct to them, and that Illinois "refuses to impute the intentional conduct of
one insured to another innocent insured." Farmers denies it is attempting to impute
Matthew=s conduct to Thomas and Cindy by arguing that because the policy uses the
phrase "an insured" in the intentional act exclusion, the exclusion is broadened to
exclude Thomas and Cindy from coverage for injuries triggered by Matthew=s intentional
(and therefore excluded) conduct. For this argument, Farmers relies on Allstate
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Insurance Co. v. Smiley, 276 Ill. App. 3d 971, 659 N.E.2d 1345, (1995), where the
insured ran a daycare business out of her home, and one of the children in her care was
injured by the allegedly negligent act of her husband. The husband contended that
because he was not engaging in the business, the exclusion in their policy for injuries
related to business activities did not apply to him. The court held as follows:
"The word (Foster, 693 F. Supp. at 889; see also
Black's Law Dictionary 84 (6th ed. 1990) (stating that the word an insured= in an
exclusionary clause unambiguously means >any insured= (Allstate
Insurance Co. v. Freeman (1989), 432 Mich. 656, 698-99, 443 N.W.2d
734, 753-54). In the present case, therefore, employing the words >an=
and >any= broadened the exclusions to include injuries triggered by one
insured in connection with the business activities of another insured."
Smiley, 276 Ill. App. 3d at 979, 659 N.E.2d at 1352.
Thomas and Cindy respond Smiley is inapposite to the case at bar because,
there, the court concluded that "the injuries allegedly caused by David Smiley's
negligence were connected to his wife's business activities" in that the duty arose
because of the business. Smiley, 276 Ill. App. 3d at 980, 659 N.E.2d at 1352. On the
contrary, in the present case, Thomas and Cindy played no role in Matthew=s conduct.
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With that background in mind, we turn to the issues Farmers raises in support of
its appeal.
A. Whether Matthew=s Act Constitutes an "Occurrence" for Purposes of Thomas and
Cindy=s Insurance Coverage
In Illinois, as in Texas, whether an occurrence has occurred is determined from
the insured=s standpoint. See Country Cos. v. Bourbon, 122 Ill. App. 3d 1061, 1067,
462 N.E.2d 526, 530 (1984) ("we think the better rule to be that which considers the
injury from the standpoint of the [insured], rather than that which centers upon a
characterization of the actions *** as intentional or accidental. *** Thus, when viewing
the incident we have related from the standpoint of the [insured], there can be no doubt
that insofar as he was concerned it was indeed an accident, despite the fact that the
injuries he received were the result of an intentional and criminal act"); Dyer v. American
Family Insurance Co., 159 Ill. App. 3d 766, 772, 512 N.E.2d 1071, 1074 (1987) (each
construing uninsured motorist insurance coverage).
We find Lyons v. State Farm Fire & Casualty Co., 349 Ill. App. 3d 404, 811
N.E.2d 718 (2004), instructive in this case. There, the insurer argued that the insured=s
act of building levees that allegedly damaged another=s property "was intentional and
therefore was not an Lyons, 349 Ill. App. 3d at 408, 811 N.E.2d at 722. The
insured=s policy excluded coverage for property damage "that Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722. The Lyons
court began by noting that "[i]n determining what constitutes an accident, Illinois
adheres to the rule of law promulgated by the United States Supreme Court more than
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a century ago in United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 33 L. Ed.
60, 9 S. Ct. 755 (1889)." Lyons, 349 Ill. App. 3d at 408, 811 N.E.2d at 723. The Illinois
Supreme Court later summarized the Barry rule as follows:
"<[I]f an act is performed with the intention of accomplishing a certain
result, and if, in the attempt to accomplish that result, another result,
unintended and unexpected, and not the rational and probable
consequence of the intended act, in fact, occurs, such unintended result is
deemed to be caused by accidental means.=" Lyons, 349 Ill. App. 3d at
409, 811 N.E.2d at 723, quoting Yates v. Bankers Life & Casualty Co.,
415 Ill. 16, 19, 111 N.E.2d 516, 517-18 (1953).
"The factual allegations of the complaint, rather than the legal theories,
determine a duty to defend." Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722.
Examining the allegations of the complaint, the Lyons court found that it contained no
allegations the insured expected or intended to build his levees so that they extended
onto the underlying plaintiff=s property. The court concluded that "[c]onstruing the policy
and complaint liberally and resolving all doubts in favor of the insured, *** the allegations
of the underlying complaint are potentially within the coverage under the policy" (Lyons,
349 Ill. App. 3d at 412, 811 N.E.2d at 726) and therefore the insurer had a duty to
defend.
Viewing the incident from Thomas and Cindy=s point of view, we hold that the
complaint makes allegations that are within the coverage provided by the policy. The
underlying complaint in the present case alleges only negligence by Thomas and Cindy
and makes no allegation that they intended that as a result of their alleged act of
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negligence, specifically, failing to control Matthew and providing him with the means of
traveling to Kyle=s home, that Matthew would injure Kyle.
B. Whether the Intentional Act Exclusion Applies
The intentional act exclusion in the Kures= homeowner=s liability policy reads as
follows:
"We do not cover bodily injury, property damage or personal injury which
is either:
(a) caused intentionally by or at the direction of an insured; or
(b) results from any occurrence caused by an intentional act
or any insured where the results are reasonably
foreseeable."
A duty to defend arises if the complaint's allegations potentially fall within the
coverage provisions of the policy. See Lyons, 349 Ill. App. 3d at 406, 811 N.E.2d at
721-22. Lyons found that the unintended consequences of the insured=s intended act
brought the underlying claim potentially within the policy=s coverage. There, the policy
excluded coverage for property damage that was " Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722. Similarly, in the present
case, the policy excludes coverage for bodily injury that "results from any occurrence
caused by an intentional act *** [or] where the results are reasonably foreseeable." As
the Lyons court noted, that language places the "focus of the inquiry in determining
whether an occurrence is an accident [on] whether the injury is expected or intended by
the insured, not whether the acts were performed intentionally." (Emphases in original.)
Lyons, 349 Ill. App. 3d at 409, 811 N.E.2d at 723.
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In Williams v. American Country Insurance Co., 359 Ill. App. 3d 128, 139, 833
N.E.2d 971, 980 (2005), the court construed a policy which excluded coverage for
bodily injury expected or intended from the standpoint of the insured. In Williams, a cab
company sought coverage for its driver=s traffic accident in which the driver struck the
pedestrian. The policy=s coverage exclusion for expected or intended injuries became
an issue because the driver was convicted of battery as a result of the occurrence.
Williams, 359 Ill. App. 3d at 130, 833 N.E.2d at 973. Williams held that the supreme
court=s holding in American Family Mutual Insurance Co v. Savickas, 193 Ill. 2d 378,
739 N.E.2d 445 (2000), precluded the driver from contesting the fact that his battery
conviction established that his conduct was intentional. The Williams court held that the
language of the policy allowed "coverage to be excluded as to one insured and remain
in effect as to the other insured." Williams, 359 Ill. App. 3d at 139, 833 N.E.2d at 980.
Coverage would be excluded as to the cab company "only if [it] >expected or intended=
the injury." Williams, 359 Ill. App. 3d at 139-40, 833 N.E.2d at 980.
The trial court found that Matthew=s acts were intentional. However, Thomas and
Cindy did not commit an intentional act and did not participate in Matthew=s conduct.
"[T]he duty of the insurer is determined by the allegations of the underlying complaint."
Lyons, 349 Ill. App. 3d at 406, 811 N.E.2d at 721-22. Again, the complaint against
Thomas and Cindy contains no allegation that Thomas and Cindy intended or even
expected that as a result of their alleged negligence Matthew would injure Kyle. Nor
does the complaint allege that such a result was reasonably foreseeable from Thomas
and Cindy=s allegedly negligent acts. Accordingly, we hold the intentional act exclusion
does not apply to Farmers= coverage of Thomas and Cindy.
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CONCLUSION
For all of the foregoing reasons, the circuit court=s order granting Thomas and
Cindy=s motion for summary judgment on its action seeking a declaratory judgment that
Farmers has a duty to defend the complaint against them is affirmed.
Affirmed.
BARRY and O=BRIEN, J.J., concur.
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