{ "id": 847535, "name": "INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., Defendant-Appellant", "name_abbreviation": "International Insurance v. Allied Van Lines, Inc.", "decision_date": "1997-11-17", "docket_number": "No. 1\u201496\u20140875", "first_page": "513", "last_page": "519", "citations": [ { "type": "official", "cite": "293 Ill. App. 3d 513" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "42 U.S.C.S. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "464 F. Supp. 945", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4058491 ], "year": 1979, "pin_cites": [ { "parenthetical": "damages for mental suffering not available under ADEA" } ], "opinion_index": 0, "case_paths": [ "/f-supp/464/0945-01" ] }, { "cite": "103 S. Ct. 453", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 606", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1039", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6480417, 6481121, 6480514, 6480742, 6480153, 6480843, 6480915, 6481012, 6480281, 6480220, 6480350, 6480639 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1039-05", "/us/459/1039-12", "/us/459/1039-06", "/us/459/1039-08", "/us/459/1039-01", "/us/459/1039-09", "/us/459/1039-10", "/us/459/1039-11", "/us/459/1039-03", "/us/459/1039-02", "/us/459/1039-04", "/us/459/1039-07" ] }, { "cite": "682 F.2d 684", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 539061 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f2d/682/0684-01" ] }, { "cite": "29 U.S.C.S. \u00a7 626", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "636 F. Supp. 309", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3869349 ], "weight": 4, "year": 1986, "pin_cites": [ { "parenthetical": "in appeal from grant of summary judgment in favor of insurer, court considered allegations in discovery deposition taken in the underlying action indicating the underlying claim was at least potentially within the policy's coverage" }, { "page": "311" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/f-supp/636/0309-01" ] }, { "cite": "386 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "in appeal from grant of summary judgment in favor of insurer, court considered \"true but unpleaded facts\" indicating the underlying claim was at least potentially within the policy's coverage" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3308124 ], "year": 1979, "pin_cites": [ { "parenthetical": "in appeal from grant of summary judgment in favor of insurer, court considered \"true but unpleaded facts\" indicating the underlying claim was at least potentially within the policy's coverage" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0807-01" ] }, { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "reaffirming Illinois' adherence to the general rule" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "year": 1978, "pin_cites": [ { "parenthetical": "reaffirming Illinois' adherence to the general rule" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "641 N.E.2d 395", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "161 Ill. 2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783179 ], "year": 1994, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0433-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "29 U.S.C. \u00a7 626", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 624, "char_count": 12215, "ocr_confidence": 0.742, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3382973293037548 }, "sha256": "05d74fad2f15422d754d23f4c876d59e652b1c98d9681fde559c10a4b5311139", "simhash": "1:bee74ff0801f7805", "word_count": 1888 }, "last_updated": "2023-07-14T15:37:50.535591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nFormer employees Gerald Oberg, Nicholas Tautz, and Steven Adams filed a class action complaint against Allied Van Lines, Inc. (Allied), alleging Allied terminated their employment in violation of the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. \u00a7 626 (1994)). Allied tendered the matter to its insurer, International Insurance Company (International), for defense pursuant to its comprehensive general liability policy (CGL policy). International denied coverage and filed the instant action seeking a declaration of the parties\u2019 rights and liabilities under the CGL policy. Following a hearing on cross-motions for summary judgment, the trial court entered summary judgment in favor of International and against Allied. Allied appeals. We affirm.\nSummary judgment is proper only where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 1996). We review the matter de nova. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).\nAs a general rule, International has a duty to defend Allied \"unless it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the case within, or potentially within, the policy\u2019s coverage.\u201d (Emphasis added.) Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 439, 641 N.E.2d 395 (1994); Thornton v. Paul, 74 Ill. 2d 132, 384 N.E.2d 335 (1978) (reaffirming Illinois\u2019 adherence to the general rule). Here, however, the procedural posture of the case \u2014 an appeal from a grant of summary judgment \u2014 permits this court to look beyond the face of the complaint and take into consideration the affidavits, depositions, admissions, exhibits, and pleadings on file. See 735 ILCS 5/2 \u2014 1005(c) (West 1996) (in rendering summary judgment, court should take into consideration affidavits, depositions, admissions, exhibits, and pleadings on file and construe them against the movant); Associated Indemnity Co. v. Insurance Co. of North America, 68 Ill. App. 3d 807, 386 N.E.2d 529 (1979) (in appeal from grant of summary judgment in favor of insurer, court considered \"true but unpleaded facts\u201d indicating the underlying claim was at least potentially within the policy\u2019s coverage); Kufalk v. Hart, 636 F. Supp. 309 (N.D. Ill. 1986) (in appeal from grant of summary judgment in favor of insurer, court considered allegations in discovery deposition taken in the underlying action indicating the underlying claim was at least potentially within the policy\u2019s coverage).\nInternational\u2019s CGL policy provided the following relevant coverage:\n\"Coverage A. Bodily Injury and Property Damage Liability\n1. Insuring Agreement.\na. We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury\u2019 or 'property damages\u2019 to which this insurance applies. *** This insurance applies only to 'bodily injury\u2019 *** caused by an 'occurrence.\u2019 \u201d\nThe policy defined \"bodily injury\u201d as \"bodily injury, sickness or disease sustained by a person\u201d (hereinafter bodily injury coverage).\nThe CGL policy also included an endorsement that enhanced the policy\u2019s liability coverage. It added the following:\n\"A. Employee Benefits Liability Coverage\n1. Insuring Agreement.\nWe will pay those sums that the insured becomes legally obligated to pay as damages sustained by [a] *** former employee *** of the insured *** and caused by any negligent act, error, or omission of the insured *** in the 'administration\u2019 of your 'Employee Benefit Program.\u2019\n2. Exclusions\nThis Coverage does not apply to:\na. any *** criminal *** act, *** or humiliation\nb. 'Bodily injury\u2019 ***\nd. Your failure to comply with any state or federal law, regulation or order ***.\u201d (Emphasis added.)\n(Hereinafter employee benefits coverage.)\nThe underlying age discrimination complaint against Allied alleged that \"[a]s a result of defendants\u2019 conduct, plaintiffs and members of the class have suffered and will suffer the loss of salary, loss or reduction of other job-related benefits, and other damages and expense.\u201d The complainants sought reinstatement with seniority rights and benefits, back pay and other pecuniary losses plus interest thereon. Because the complaint alleges monetary loss rather than bodily injury (bodily injury coverage), and because it alleges those losses arise out of Allied\u2019s intentional termination of plaintiffs\u2019 employment rather than a negligent act (employee benefits coverage), it is clear from the face of the complaint that the allegations fail to state facts that bring the case within, or potentially within, the policy\u2019s coverage. Accordingly, if a duty to defend exists, it arises from matters outside the four corners of the complaint.\nAllied points to two documents contained in the record on appeal to support its claim that International had a duty to defend: Nicholas Tautz\u2019s response to Allied\u2019s interrogatory No. 7 and the transcript of his deposition. Allied\u2019s interrogatory No. 7 asked Tautz to \"[sjtate the amount of back pay, front pay or other damages which you claim you are entitled to in this matter, and, with respect to that amount, state in detail the basis for that calculation.\u201d Tautz responded that, in addition to lost wages, legal fees, and the difference between reduced and full pension, he sought \"reimbursement for humiliation.\u201d The transcript of Tautz\u2019s deposition recounts the following relevant exchanges:\n\"COUNSEL FOR ALLIED: When you found out that your position at Allied had been terminated, what efforts did you make to find alternative employment?\nA. First of all, I had a shock, and it took me about a week to recover. ***\n* * *\nCOUNSEL FOR ALLIED: You said that after you found out that your position had been terminated, you were in shock and it took you a week to recover. Were you ill?\nA. No. Just emotionally going through the trauma of losing a position. ***\n* * *\nCOUNSEL FOR ALLIED: Did you become physically sick?\nA. Just emotionally.\nCOUNSEL FOR ALLIED: Did you lose any sleep?\nA. Yes, and I\u2019m still losing sleep.\n* * *\nCOUNSEL FOR ALLIED: Do you have any nervousness?\nA. It still bothers me.\nCOUNSEL FOR ALLIED: Did you become depressed?\nA. And I\u2019m still depressed.\nCOUNSEL FOR ALLIED: Have you sought any medical assistance for this depression?\nA. No.\nCOUNSEL FOR ALLIED: Have you spoken to any psychiatrists or psychologists about the depression?\nCOUNSEL FOR TAUTZ: I think we ought to take a break. Also, I don\u2019t understand what the line of questioning is here. I don\u2019t think we can put any evidence like that in.\nCOUNSEL FOR ALLIED: Well, you had some very vague assertians concerning your damages.\nCOUNSEL FOR TAUTZ: Well, you can\u2019t get damages like that under the Age Discrimination Act. I think we\u2019re sort of wasting time.\u201d\nBased upon the foregoing, Allied contends International has a duty to defend the suit under one or both of the CGL policy\u2019s insuring agreements outlined above. Initially, Allied contends International has a duty to defend the suit under the policy\u2019s bodily injury coverage because Tautz\u2019s humiliation, shame, shock and depression are injuries or illnesses within the meaning of the policy definition of \"bodily injury.\u201d Allied\u2019s analysis is misplaced.\nAs previously noted, the insuring agreement for bodily injury coverage provides, \"[Insurer] will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury\u2019 *** to which this insurance applies.\u201d (Emphasis added.) Here, Allied\u2019s claim ignores the nature of the underlying complaint. As counsel for Tautz pointed out during Tautz\u2019s deposition, one cannot recover damages for emotional distress under the ADEA. See 29 U.S.C.S. \u00a7 626(b) & n.122 (Law Co-op. 1990) (collecting cases, including Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir. 1982), cert. denied, 459 U.S. 1039, 74 L. Ed. 2d 606, 103 S. Ct. 453 (1982); Stevenson v. J.C. Penney Co., 464 F. Supp. 945 (N.D. Ill. 1979) (damages for mental suffering not available under ADEA)). Thus, even assuming without deciding that humiliation, shame, shock and depression are injuries or illnesses within the meaning of the policy definition of \"bodily injury,\u201d the nature of the complaint precludes the possibility that Allied could become legally obligated to pay damages \"because of\u201d such injuries. The fact that claimants\u2019 emotional suffering may have been occasioned by their economic loss does not transmute an economic claim under the ADEA into one seeking recovery from Allied for \"bodily injury.\u201d Accordingly, the CGL policy\u2019s bodily injury coverage does not apply.\nAllied\u2019s reliance on Kufalk v. Hart, 636 F. Supp. 309 (N.D. Ill. 1986), is misplaced. In Kufalk, a school director sought to hold the school board and certain individuals liable for injuries he suffered as a result of his allegedly wrongful termination. The defendants filed a third-party complaint against their insurer seeking a declaration of the insurer\u2019s duty to defend the action under the \"bodily injury\u201d provision of a CGL policy. During the pendency of the third-party action, the school director was deposed. During his deposition, the school director claimed that since his discharge he had suffered \"bouts of depression resulting in general lethargy, headaches, stomach pains and diarrhea.\u201d 636 F. Supp. at 311. Because the court could not say that the school director\u2019s deposition allegations clearly fell outside the CGL policy\u2019s definition of \"bodily injury,\u201d it concluded the insurer had a duty to defend. 636 F. Supp. at 312.\nThe striking factual similarities notwithstanding, Kufalk is distinguishable from the case sub judice. In Kufalk, the underlying claimant brought his suit under 42 U.S.C. \u00a7 1983. A section 1983 action, unlike an action brought under the ADEA, permits recovery of compensatory damages for emotional distress, humiliation and the like. See 42 U.S.C.S. \u00a7 1983 n.1624 (Law Co-op. 1994) (collecting cases). Thus, in Kufalk, unlike here, the nature of the complaint did not preclude the possibility that Allied could become legally obligated to pay damages \"because of\u2019 such injuries. Accordingly, Kufalk is not persuasive authority in the instant case and we express no opinion as to the accuracy of the district court\u2019s interpretation of Illinois law on the issue of whether emotional distress that is manifested by physical symptoms falls within the CGL policy\u2019s definition of \"bodily injury.\u201d\nAlternatively, Allied contends that International has a duty to defend the suit under the policy\u2019s employee benefits coverage because it alleges loss of \"job-related benefits\u201d all of which are covered under the insuring agreement. We disagree.\nAgain, as previously noted, the CGL policy\u2019s employee benefits coverage provides that International will pay for damages \"caused by any negligent act, error, or omission\u201d of Allied in the administration of its benefits program. The policy excludes from coverage damages caused by any \"criminal\u201d act, \"humiliation,\u201d \"bodily injury,\u201d or Allied\u2019s \"failure to comply with any state or federal law.\u201d Because Allied purposefully rather than negligently or erroneously terminated the underlying complainants\u2019 employee benefits, there is no coverage under the endorsement. Moreover, if we assume, as Allied would have us do, that at least the underlying complainants sought damages for their humiliation or other emotional distress amounting to \"bodily injury,\u201d then the policy specifically excludes coverage. Finally, Allied\u2019s alleged failure to comply with the ADEA precludes employee benefits coverage.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nBUCKLEY and GALLAGHER, JJ\u201e concur.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" } ], "attorneys": [ "Bates, Meckler, Bulger & Tilson, of Chicago (Bruce R. Meckler, Steven D. Pearson, and Mark G. Sheridan, of counsel), for appellant.", "Kralovec & Marquard, Chartered, of Chicago (Nancy J. Arnold and William E. Spizzirri, of counsel), for appellee." ], "corrections": "", "head_matter": "INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201496\u20140875\nOpinion filed November 17, 1997.\nBates, Meckler, Bulger & Tilson, of Chicago (Bruce R. Meckler, Steven D. Pearson, and Mark G. Sheridan, of counsel), for appellant.\nKralovec & Marquard, Chartered, of Chicago (Nancy J. Arnold and William E. Spizzirri, of counsel), for appellee." }, "file_name": "0513-01", "first_page_order": 533, "last_page_order": 539 }