ILLINOIS OFFICIAL REPORTS

Appellate Court

State Farm Fire & Casualty Co. v. Young, 2012 IL App (1st) 103736

Appellate Court

Caption

STATE FARM FIRE AND CASUALTY COMPANY, PlaintiffAppellee, v. THOMAS YOUNG, Defendant-Appellant.

 District & No. First District, Sixth Division

Docket No. 1-10-3736

Filed April 20, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Judgment on the pleadings was properly entered for plaintiff insurer in its

action seeking a declaratory judgment that the insurer had no obligation

to defend its insured in an underlying action for assault and battery and

claims of negligence, since the policies at issue covered only accidental

injuries, but the underlying action alleged defendant provided heroin to

a woman, that he beat her when she overdosed and became ill, and that

she died after he failed to seek medical care for her, and those allegations

accused defendant of intentional conduct that could not be construed as

assertions that an accident occurred; therefore, the policies’ exclusions of

coverage for bodily injury or damage expected or intended by the insured

applied.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CH-00998; the

Hon. Michael B. Hyman, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Robert G. Riffner, of Riffner Barber LLC, of Schaumburg, for appellant.

Michael Resis, Glen E. Amundsen, and Rachel Winthrop, all of Smith

Amundsen LLC, of Chicago, for appellee.

Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices Lampkin and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 The circuit court granted judgment on the pleadings to plaintiff State Farm in a

declaratory judgment action seeking a determination that it was not obligated to defend its

insured in a civil suit for assault and battery and for claims of negligence. The suit alleged

that the defendant provided heroin to a young woman and, when she became seriously ill

from an overdose, he beat her severely and failed to seek medical help for the victim,

resulting in her death. State Farm’s motion argued that it was entitled to judgment as a matter

of law because the insurance policies at issue covered only accidental injuries. On de novo

review, we agree with the circuit court that no material question of fact existed under the

facts alleged in the underlying complaint and that only one conclusion reasonably followed

from the allegations in the underlying civil suit: the injuries were intentionally caused by the

insured. It follows that State Farm owed no duty to defend the defendant. We affirm.

¶ 2 BACKGROUND

¶ 3 On June 29, 2008, the defendant, Thomas Young, was 21 years old and was living in his

parents’ home in Prospect Heights, Illinois. The defendant invited the victim, Gina

Dominick, to his home. He told her he had purchased some heroin and offered to share it

with her. Sometime in the early morning hours, Gina died from the combination of an

overdose and injuries from a beating. Her body was found the next morning at 10:45 a.m. in

her car parked in the parking lot of the Prospect Heights public library.

¶ 4 Gina’s father, Michael Dominick, as administrator of her estate, filed a civil suit against

the defendant and his parents, Chester and Teresa Young. Only the allegations against the

defendant in the underlying complaint are relevant to this appeal. The complaint alleged the

following facts. The defendant bought heroin and provided it to Gina at his parents’ home.

After taking the drugs, Gina suffered an overdose and became violently ill. The defendant

began severely beating Gina without provocation or justification. Despite knowing that

Gina’s condition was critical, the defendant failed to call 911, take her to a hospital, or seek

medical attention. Gina died as a result of her injuries and her drugged condition at the

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defendant’s home. The defendant then carried her body to her car, drove the carto the library

parking lot, abandoned the car, and walked home. Once at home, he attempted to clean up

“massive amounts of Gina Dominick’s blood.”

¶ 5 The estate’s complaint sought damages for wrongful death, pain and suffering, and burial

expenses. The complaint alleged that the defendant was liable for battery in beating Gina and

that he was liable for negligently failing to procure medical assistance for Gina. In

conjunction with the negligence claims, the complaint specifically alleged that the defendant

“carelessly and negligently failed to take [Gina] to a hospital.” The defendant, as a resident

of his parents’ home, sought coverage from State Farm for his defense of the estate’s

complaint and for indemnification in the event of a judgment.

¶ 6 The defendant’s parents were the listed insureds in a homeowners insurance policy and

a personal liability umbrella policy from State Farm. The homeowners policy provided

coverage for “a suit *** against an insured for damages because of bodily injury or property

damage *** caused by an occurrence.” For a covered “occurrence,” State Farm would

provide a defense and pay damages. The policy defined “occurrence” as “an accident,

including exposure to conditions which results in *** bodily injury.” The policy expressly

excluded coverage for “[b]odily injury or property damage: (1) which is either expected or

intended by the insured; or (2) which is the result of willful and malicious acts of the

insured.” Under the umbrella policy, State Farm would pay damages and defend against a

claim resulting from a “loss.” It defined a “loss” as “an accident, including injurious

exposure to conditions, which results in bodily injury or property damage.” The umbrella

policy excluded coverage arising from “bodily injury or property damage: a. which is either

expected or intended by you [the insured]; or b. to any person or property which is the result

of your willful and malicious act, no matter at whom the act was directed.”

¶ 7 Citing these provisions, State Farm filed a declaratory judgment complaint, contending

the injuries sustained by Gina were not accidental; rather, the injuries were caused by the

defendant’s intentional acts, which precluded a duty to defend on the part of State Farm.

After the defendant filed his answer, State Farm moved for judgment on the pleadings. State

Farm argued that the undisputed facts in the underlying complaint by the estate fell outside

the coverage provided bythe policies and, in fact, fell within the exclusion provisions of both

policies. State Farm also contended that to find coverage for the injuries involved in this case

would violate public policy, which seeks to deterindividuals from providing drugs to others.

¶ 8 The circuit court ruled State Farm had no duty to defend the defendant and granted its

motion for judgment on the pleadings. In its oral announcement, the court stated that the

allegations against the defendant “did not constitute an accident.” The court cited Aetna

Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617 (1980), for the proposition that

consequences desired or reasonably anticipated by an actor are not accidental injuries

compensable by insurance. The court noted that the defendant had pleaded guilty to criminal

battery; it found the defendant’s acts of providing Gina with heroin and of beating her were

willful and malicious. Accordingly, neither the homeowners policy nor the umbrella policy

covered the “occurrence” or “loss.” The court did not address State Farm’s public policy

argument. The defendant appeals.

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¶ 9 ANALYSIS

¶ 10 The defendant raises three issues: (1) whether questions of material fact exist to preclude

judgment on the pleadings; (2) whetherthe underlying pleadings “can be construed to allege”

injuries that constituted an “occurrence” or a “loss” as defined by the insurance policies; and

(3) whether it is “not clear and free from doubt” that the exclusion provisions of the two

policies apply because the circuit court improperly invoked collateral estoppel arising from

his battery conviction.

¶ 11 A motion for judgment on the pleadings asserts the allegations in the pleadings and the

exhibits to the pleadings, which are considered part of the pleadings, permit only one

disposition as a matter of law. Employers Insurance of Wausau v. Ehlco Liquidating Trust,

186 Ill. 2d 127, 138-39 (1999). Judgment on the pleadings is proper only if no genuine issue

of material fact exists and the moving party is entitled to judgment as a matter of law. Gillen

v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). We review the

circuit court’s grant of judgment on the pleadings de novo. Id.

¶ 12 When an insurance company concludes the claims in a lawsuit against its insured do not

fall within the coverage provided by the policy, the insurance company must either (1)

defend the lawsuit under a reservation of rights or (2) seek a declaratory judgment that no

coverage exists. Ehlco Liquidating Trust, 186 Ill. 2d at 150-51; 735 ILCS 5/2-701 (West

2010). If the facts alleged in the underlying complaint potentially fall within the policy

coverage, the insurer is obligated to provide a defense. Country Mutual Insurance Co. v.

Olsak, 391 Ill. App. 3d 295, 302 (2009). Indemnification is a separate question from the

much broader duty to defend. “[T]he question of whether the insurer has a duty to indemnify

the insured for a particular liability is only ripe for consideration if the insured has already

incurred liability in the underlying claim against it.” Outboard Marine Corp. v. Liberty

Mutual Insurance Co., 154 Ill. 2d 90, 127 (1992).

¶ 13 A court answers the question of whether a duty to defend exists by comparing the facts

alleged in the underlying complaint to the language of the insurance policy. Olsak, 391 Ill.

App. 3d at 302. No duty to defend arises when “it is clear from the face of the underlying

complaint[ ] that the allegations fail to state facts which bring the case within, or potentially

within, the policy’s coverage.” (Emphasis in original.) (Internal quotation marks omitted.)

Ehlco Liquidating Trust, 186 Ill. 2d at 153.

¶ 14 Material Question of Fact

¶ 15 The defendant initially argues that questions of material fact exist to preclude judgment

on the pleadings. He contends the circuit court erroneously premised its ruling on the

allegations in the underlying complaint being true when the defendant expresslydenied some

of the allegations: he denied purchasing heroin, striking Gina, or knowing that Gina needed

medical help. He contends these denials give rise to material questions of fact.

¶ 16 State Farm counters that the circuit court did not assume the truth of the allegations in

the underlying complaint. Rather, the circuit court considered whether the well-pleaded

factual allegations in the underlying complaint, if true, would potentially fall within the

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coverage clauses of the policies. The court ruled that the allegations of facts in the complaint

permitted onlyone conclusion: the defendant acted intentionally. The defendant’s intentional

acts could not be construed to support a covered claim for an “occurrence” or a “loss” under

either of the policies.

¶ 17 “[A] motion for judgment on the pleadings is like a motion for summary judgment ***.”

(Internal quotation marks omitted.) Id. at 138. As the defendant argues, fact finding is not

permitted in considering a motion for judgment on the pleadings. However, the court looks

to the factual allegations of the underlying complaint, rather than the insured’s answer, to

determine whether a duty to defend exists. See National Fire Insurance of Hartford v. Walsh

Construction Co., 392 Ill. App. 3d 312 (2009) (circuit court did not err in refusing to

consider third-party complaint of additional insured in deciding whether insurer had a duty

to defend). The court must consider “only those facts apparent from the face of the pleadings,

matters subject to judicial notice, and judicial admissions in the record.” Gillen, 215 Ill. 2d

at 385. “All well-pleaded facts and reasonable inferences therefrom are taken as true.” Id.

¶ 18 The defendant insists that his denials of the well-pleaded facts on the face of the estate’s

complaint raise questions of fact that preclude judgment on the pleadings. The onlyargument

we can discern from the defendant’s main brief to support this claim is that the circuit court

erred by viewing the allegations in an “aggregated fashion” rather than individually. The

defendant’s point underlying this argument escapes us. Taking at face value the defendant’s

contention that a difference exists between viewing the allegations in “aggregated fashion”

and individually, the defendant fails to provide us with what that difference is; nor does he

tell us why that difference, assuming there is one, gives rise to material questions of fact.

This contention is forfeited. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855

(2007) (ill-defined and insufficiently presented issues are forfeited).

¶ 19 We also note the absence of any factual support for the defendant’s denials of the

allegations in the underlying complaint by the estate of Gina Dominick, which renders them

no more than bald assertions. See Practical Offset, Inc. v. Davis, 83 Ill. App. 3d 566, 573-74

(1980) (defendant’s bald assertion in his deposition was little better than his denial in the

answer to the complaint, neither of which was sufficient to give rise to a question of fact to

preclude summaryjudgment). The defendant’s denials in his answer to the estate’s complaint

grounded in assault and battery and negligence were clearly meant to avoid the implications

of the complaint’s well-pleaded facts. Without factual bases, the defendant’s denials do not

merit consideration on the ultimate issue of whether the incident was potentially within the

coverage provided by the State Farm policies. The well-pleaded facts allege that Gina

Dominick died of a combination of an overdose of heroin, which the defendant provided, and

a brutal beating, which the defendant inflicted. The defendant’s abject denials that he

purchased heroin, struck Gina, or knew that Gina needed medical help are insufficient to

override the well-pleaded facts in the estate’s complaint.

¶ 20 No material questions of fact arise solely from the defendant’s denials to preclude

judgment on the pleadings.

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¶ 21 Coverage Under the Policies

¶ 22 Next, we examine the homeowners policy and the umbrella policy to determine whether

the allegations in the underlying complaint state facts that bring the case at least potentially

within the coverage of either policy. The defendant only argues that the facts in the

underlying complaint may be “construed” as alleging an accident, which would bring it

within the coverage provisions of the policies. The homeowners policy states it covers an

“occurrence,” which it defines as an accident. The umbrella policy provides coverage for a

“loss,” which it likewise defines as an accident. Because the policies contain similar

language providing for coverage of an “accident,” we analyze the policies concurrently.

¶ 23 The thrust of the defendant’s argument is that the underlying complaint “can be

construed” to allege an accident because the complaint included claims based on negligence.

State Farm argues that the claims of negligence based on the defendant’s failure to seek

medical assistance for Gina notwithstanding, no accident was alleged because Gina’s death

was not unexpected; it was a natural and probable consequence of the defendant’s actions.

¶ 24 The issue for the circuit court in this case was whether the comparison of the allegations

in the estate’s complaint to the provisions in the insurance policies gave rise to a duty to

defend. State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993). In

other words, did the allegations in the estate’s complaint, taken as true, state facts that “bring

the case within, or potentially within, the policy’s coverage?” (Internal quotation marks

omitted.) Ehlco Liquidating Trust, 186 Ill. 2d at 153. If so, State Farm had the duty to defend

the defendant; if not, State Farm had no duty to defend.

¶ 25 The policies do not expressly define the term “accident.” The defendant, however, does

not contend the term is ambiguous. In fact, our case law has established clear contours of the

term “accident.” Freyer, 89 Ill. App. 3d at 619; Country Mutual Insurance Co. v. Carr, 372

Ill. App. 3d 335, 340 (2007).

¶ 26 In Freyer, the court noted, “An accident has been defined as an unforseen occurrence,

usually *** an undesigned sudden or unexpected event of an inflictive or unfortunate

character.” Freyer, 89 Ill. App. 3d at 619. The Freyer court also explained what the term

excludes: “The natural and ordinary consequences of an act do not constitute an accident.”

Id. To determine whether the alleged conduct of an insured involves a covered event, a court

may also inquire “whether the person performing the acts leading to the result intended or

expected the result.” Carr, 372 Ill. App. 3d at 341. If the actor intended or expected the

result, the event was no accident. Id.

¶ 27 The underlying complaint sought recovery on several bases. Counts I through III alleged

assault and battery based on the defendant’s intentional conduct when he overdosed and

battered Gina, which the defendant does not contend fall potentially within the State Farm

policies. The defendant makes this claim only as to counts IV through VI, which alleged

“negligence” based on the defendant’s failure to call 911 when the victim was in clear peril.

¶ 28 The defendant contends a reasonable reading of counts IV through VI, which alleged

negligence based on the defendant’s failure to seek help for Gina after she became ill,

supports the conclusion that an “accident” was involved because negligent conduct is not

intentional conduct. Based on the claim of negligence, the defendant argues this alone brings

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counts IV through VI within Freyer’s definition of an accident. We disagree. To determine

whetherthe complaint alleged an accident, we look not to the legal theory asserted, but to the

factual allegations. Travelers Insurance Cos. v. P.C. Quote, Inc., 211 Ill. App. 3d 719, 729

(1991).

¶ 29 Counts IV through VI alleged that the defendant failed to call 911 when the victim was

in clear peril. Although these counts were listed as falling under the legal theory of

“negligence,” the allegations support only one conclusion, that the defendant chose not to

seek help for Gina. Rather than call 911, the defendant allowed Gina to die in his home and

then moved her body in an effort to distance himself from her injuries and death. None of the

defendant’s actions can reasonably be called accidental; even though the acts of the

defendant are otherwise characterized as “negligent” in the complaint, Gina’s injuries and

her eventual death were a “natural and ordinary consequence[ ]” of the defendant’s failure

to get help. Freyer, 89 Ill. App. 3d at 619. Calling what occurred to Gina an “accident” is a

tortured interpretation of the word.

¶ 30 Counts Ithrough III also add background to the allegations in counts IV through VI. The

allegations of assault and battery committed by the defendant’s own fist can in no way be

construed to support a claim of accident. The defendant’s alleged failure to procure medical

treatment for Gina after he allegedly placed her in peril was no less “the result intended or

expected.” Carr, 372 Ill. App. 3d at 341. The complaint alleged that after Gina was given

heroin and severely battered by the defendant, the defendant acted negligently when he did

not call 911 or take Gina to the hospital. “An injury caused by an assault and battery

normally is not considered to be accidental [citation], even if the specific injury was not

intended.” Freyer, 89 Ill. App. 3d at 619. We question how deliberate conduct by the

defendant is transformed into mere “negligence” based on his failure to seek medical aid for

Gina.

¶ 31 As we noted, we do not look to the asserted legal theory, seeking to impose liability upon

the defendant for his actions, to determine whether an accident occurred; rather, we look to

the intended or expected results arising from the defendant’s actions or, in this case,

omissions. See Travelers Insurance Cos., 211 Ill. App. 3d at 729. Although the complaint

does not explicitly allege that the defendant expected Gina to die from the lack of medical

attention, that was the only reasonable expectation given her condition as alleged bythe wellpleaded facts of the underlying complaint. The injuries alleged in this case were not the result

of an accident under any definition for that term recognized in our jurisprudence.

¶ 32 The underlying complaint, irrespective of the negligence claims in counts IV through VI,

did not allege facts that might potentially place the suit within the coverage of either of the

State Farm policies. State Farm did not have a duty to defend the defendant in the lawsuit

filed by Gina’s estate. See Freyer, 89 Ill. App. 3d at 621 (“[A]n insurer only has a duty to

defend when the complaint alleges facts which bring the case within or potentiallywithin the

policy coverage ***.”).

¶ 33 The respective briefs of the parties also address whether the exclusion provisions of the

two policies apply to the incident as alleged in the underlying suit. We address that

contention as well to make clear that even if counts IV through VI, alleging negligence,

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might plausibly fit within the “accident” provisions of the policies, the exclusion provisions

apply to bar any duty by State Farm to provide a defense to the estate’s complaint.

¶ 34 Exclusions Under the Policies 

¶ 35 As this court noted in Freyer, “insurance companies, in order to make this limitation of

coverage [to only accidents] absolutely clear and inescapable, include an exclusion for

‘intentional injuries’ caused by the insured.” Id. at 619. Hence, an intentional act is “not

covered both because it is not accidental and because it falls under the policy exclusion.” Id.

at 621. In other words, the coverage clause and the exclusion clause overlap regarding

intentional conduct, making such conduct both not compensable and expressly excluded

under the insurance policy.

¶ 36 Recognizing this redundancy, the defendant raises a point of law. He contends the circuit

court improperly relied upon his battery conviction to conclude he acted intentionally to

apply the exclusion clauses. The defendant cites Cowan v. Insurance Co. of North America,

22 Ill. App. 3d 883 (1974), and Allstate Insurance Co. v. Kovar, 363 Ill. App. 3d 493 (2006),

as authority that the conviction of the insured of a criminal offense or a finding of liability

for tortious conduct underlying the civil claim does not automatically bar the insured from

contending that his conduct was not intentional for purposes of an exclusion clause.

¶ 37 In Cowan, the insured got into a car accident, and in the course of an argument that

followed the accident, the insured pushed the other driver, causing him to fall and fracture

his leg. Cowan, 22 Ill. App. 3d at 886-87. The driver sued the insured for assault and battery.

Id. The case proceeded to trial with the insurer providing a defense under a reservation of

rights. Id. At trial, the insured testified he pushed the driver in self-defense and claimed the

injury the driver sustained was “unintentional and bizarre in relation to the incident.” Id. at

888. The jury found the insured liable and the insurer refused to pay the $8,000 judgment.

Id. at 887. In a declaratory action contending it owed no duty to indemnify its insured, the

insurer invoked estoppel, pointing to the tort judgment as proof that the insured acted

intentionally. The circuit court viewed the issue as one of law and found in favor of the

insured. Id. In the course of addressing whether summary judgment was proper, this court

found estoppel based on the finding of tort liability inapplicable. We noted that the jury could

have based its verdict on the lack of consent by the victim, rather than on a finding that the

insured acted intentionally in causing the fracture to the driver’s leg. Id. at 890. The court

noted that no special interrogatory to the jury was submitted. Id. at 888 n.1. The dispositive

inquiry was whether the insured intended the harm to result, not whether he acted

intentionally when he pushed the driver. Id. at 892-93. Ultimately, this court concluded that

whether the insured intended to harm the other driver remained a disputed question of fact,

which precluded summary judgment for the insured. Id. at 895-96.

¶ 38 In Kovar, the victim and the insured, with other men on the insured’s side, got into a

physical altercation. Kovar, 363 Ill. App. 3d at 495. One of the men waved a sharp object in

the air, and the victim was either intentionally stabbed or pushed into the object in the

scuffle. Id. After the insured pled guilty to battery, the victim sued him under a theory of

negligence. Id. at 495-96. In a declaratory action, the insurer claimed it was entitled to

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summary judgment because the insured was estopped from denying he committed an

intentional act given his plea of guilty to battery. Id. The circuit court accepted the argument;

the Second District reversed. The court narrowly construed the question before it: “[T]his

case is about only whether [the insured’s] conviction, in and of itself, is sufficient to answer

[the] question” of whether “[the victim’s] injuries were caused by an intentional or criminal

act.” Id. at 500. The court answered the question in the negative because the three “threshold

requirement[s]” for the application of estoppel arising from a conviction did not apply. Id.

at 502. The court noted that even if all three requirements were present, it would be unfair

to apply estoppel where the insured had an incentive to plead guilty to battery to retain the

prospect of having his conviction expunged. Id. at 503-04.

¶ 39 Thus, while we agree with the defendant that Cowan and Kovar may preclude the use of

a guilty plea or a finding of tort liability to determine whether an incident was intentional for

purposes of insurance coverage, our agreement with the defendant ends there. We disagree

that the circuit court here applied estoppel in this case; nor does our decision rest upon that

doctrine.

¶ 40 Our holding supra that the defendant’s intentional conduct fell outside the coverage

clauses because the conduct did not constitute an accident also makes it free and clear from

doubt that the defendant’s intentional conduct fell within the exclusion clauses of the

policies. See Freyer, 89 Ill. App. 3d at 619 (“insurance companies, in order to make this

limitation of coverage [to only accidents] absolutely clear and inescapable, include an

exclusion for ‘intentional injuries’ caused by the insured”).

¶ 41 We add the following to our observations in the coverage section. The exclusion clauses

in the State Farm insurance policies apply when the insured intends to cause the

consequences of his conduct or the consequences are reasonably expected to result from that

conduct. Freyer, 89 Ill. App. 3d at 620. The terms “ ‘intended’ ” and “ ‘expected’ ” are not

synonymous. Id. Even if the injuries were not planned or intended by the insured, “they may

be of such a nature that they should have been reasonably anticipated (expected) by the

insured.” Id. Looking only to the allegations of fact in the estate’s underlying complaint, only

intentional conduct by the defendant was alleged. While the allegations concerning the

defendant’s failure to call 911 are labeled “negligence,” it was free from doubt that his failure

to act was intentional and the result from his failure to act was expected. The defendant’s

omissions were subject to the exclusion provisions of the two State Farm policies.

¶ 42 Because the language of the exclusion clauses and the coverage clauses of the two

policies expressly exclude and provide no coverage for intentional conduct, we do not

consider State Farm’s public policy argument.

¶ 43 CONCLUSION

¶ 44 Neitherthe homeowners policynor the umbrella policyprovided coverage for the injuries

sustained by the victim because the well-pleaded allegations of fact in the underlying

complaint accused the defendant of intentional conduct; the allegations do not support the

defendant’s claim that the allegations can be construed as asserting that an accident occurred.

It is also clear and free from doubt that the exclusion provisions of each policy applied to the

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defendant’s intentional acts where the injuries sustained by the victim were either intended

or expected to result. Under the clear factual allegations of the underlying complaint in this

case, State Farm had no duty to defend the defendant. We affirm the circuit court’s grant of

judgment on the pleadings to State Farm.

¶ 45 Affirmed.

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