{
  "id": 1073574,
  "name": "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. LINDA CHICZEWSKI, Next Friend of K.C., a Minor, et al, Defendants-Appellants (Richard Eitel, Jr., Defendant)",
  "name_abbreviation": "American Family Mutual Insurance v. Chiczewski ex rel. K.C.",
  "decision_date": "1998-09-14",
  "docket_number": "No. 2-97-1228",
  "first_page": "1092",
  "last_page": "1095",
  "citations": [
    {
      "type": "official",
      "cite": "298 Ill. App. 3d 1092"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "250 Ill. App. 3d 333",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        2917491
      ],
      "weight": 3,
      "year": 1993,
      "pin_cites": [
        {
          "page": "336"
        },
        {
          "page": "336"
        },
        {
          "page": "337"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/250/0333-01"
      ]
    },
    {
      "cite": "278 Ill. App. 3d 1049",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        1156759
      ],
      "weight": 2,
      "year": 1996,
      "pin_cites": [
        {
          "page": "1051"
        },
        {
          "page": "1051"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/278/1049-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 396,
    "char_count": 5846,
    "ocr_confidence": 0.738,
    "pagerank": {
      "raw": 9.349685692068319e-08,
      "percentile": 0.5139233986228541
    },
    "sha256": "11e767abe0a7184e526baa6c08b8a656365bbe019e5f7cb3dcdc5024d6f7225f",
    "simhash": "1:58eee944ec13bc54",
    "word_count": 909
  },
  "last_updated": "2023-07-14T16:29:38.148323+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. LINDA CHICZEWSKI, Next Friend of K.C., a Minor, et al, Defendants-Appellants (Richard Eitel, Jr., Defendant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE INGLIS\ndelivered the opinion of the court;\nDefendants, Linda Chiczewski, individually, and as next friend of K.C., a minor, and Joseph Chiczewski, appeal the order of the circuit court of Du Page County granting summary judgment for plaintiff, American Family Mutual Insurance Company (American Family). We affirm.\nAmerican Family brought a declaratory judgment action seeking a judicial determination that it was not obligated to defend or indemnify its insured, Richard Eitel, Jr., in a civil suit filed by defendants against Eitel (No. 94 \u2014 L\u20141034). The underlying suit arose from allegations that Eitel entered defendants\u2019 home at approximately 4 a.m. on July 13, 1992, and physically injured defendants\u2019 five-year-old daughter, K.C. (Eitel was criminally convicted for this incident (No. 92 \u2014 CF\u2014 1554).) Defendants alleged that, after consuming alcohol or ingesting illegal drags, Eitel entered defendants\u2019 residence, proceeded to KC.\u2019s bedroom, and \u201ccarelessly and negligently flailed his arms, legs and other object [sic],\u201d causing K.C. to suffer great bodily harm (count I). Defendants further alleged willful and wanton misconduct (count II); intentional battery (count III); the family expense statute (count IV); negligent infliction of emotional distress (counts V and VI); intentional infliction of emotional distress (counts VII and VIII); and loss of consortium (counts IX, X, and XI).\nOn November 6, 1997, the trial court granted summary judgment in favor of American Family finding that American Family owed no coverage to Eitel under his father\u2019s homeowner\u2019s policy because defendants\u2019 allegations fell within the policy\u2019s \u201cphysical abuse to a minor exclusion.\u201d Defendants timely appeal and request that we enter summary judgment in their favor.\nWe begin our analysis by addressing the issue of whether the trial court properly granted summary judgment. Since the parties filed cross-motions for summary judgment, only a question of law is involved, and the reviewing court decides the issues based on the record. Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 1051 (1996). On appeal from the entry of summary judgment, the standard of review is de novo. Aryainejad, 278 Ill. App. 3d at 1051.\nDefendants contend that the trial court erred in determining that the insurance policy issued by American Family did not provide coverage with respect to the underlying action. Defendants argue that the \u201cphysical abuse of a minor\u201d exclusion does not apply. The \u201cphysical abuse of a minor\u201d exclusion in the policy excludes coverage for bodily injury arising from \u201cclaims or suits seeking damages, including defense of same, to any person who actively participates in any act of sexual molestation or physical or mental abuse of a minor.\u201d\nWhether an insurer has a duty to defend its insured depends on whether the underlying complaint alleges facts within or potentially within coverage of the insurance policy. State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993). Where the underlying complaint alleges facts which if true would exempt the insured from coverage under the policy, the insurer has no duty to defend. State Farm Fire & Casualty Co., 250 Ill. App. 3d at 336. Where the language of an insurance policy is clear and unambiguous, it must be given its plain and ordinary meaning. State Farm Fire & Casualty Co., 250 Ill. App. 3d at 337.\nIn their complaint against Eitel, defendants alleged that Eitel caused their daughter \u201cgreat bodily harm, multiple fractures, traumatic brain injury, an active blood clot requiring surgery and drug induced coma, all of which has resulted and will in the future result in *** pain, suffering and disability and disfigurement, of a permanent nature.\u201d Abuse is defined as \u201cphysically harmful treatment.\u201d Webster\u2019s Third New International Dictionary 8 (1993). These allegations clearly and unambiguously establish that Eitel actively participated in the physical abuse of a minor.\nDefendants argue that the term \u201cabuse\u201d is inherently ambiguous because it naturally carries with it an element of intent. We fail to see the relevance of this argument. The term \u201cabuse\u201d is not accidental or negligent. By arguing that the term is intentional, defendants defeat their argument that Eitel\u2019s actions were negligent. Moreover, we note that the exclusion does not require an element of intent or expectation. Because there is no intent requirement, the allegations that Eitel ingested alcohol or drugs so that he was unable to control his actions and thus lacked the specific intent have no bearing on the applicability of the exclusion.\nDefendants further argue that, regardless of whether the term \u201cabuse\u201d is considered ambiguous, American Family must present evidence of abuse and failed to do so, and thus the trial court erred in granting summary judgment. This argument is also unreasonable given the allegations raised by defendants.\nBecause the underlying complaint seeks recovery from Eitel for his active participation in an act of physical abuse of a minor, we find that the trial court properly held that American Family had no duty to defend or indemnify Eitel in the underlying suit. We have reviewed defendants\u2019 remaining contentions and find them to be without merit. Accordingly, we affirm the grant of summary judgment for American Family.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nTHOMAS and BATHJE, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE INGLIS"
      }
    ],
    "attorneys": [
      "Russell J. Heitz, of Wyeth, Heitz & Bromberek, of Naperville, for appellants.",
      "Carol Proctor, of Hinshaw & Culbertson, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. LINDA CHICZEWSKI, Next Friend of K.C., a Minor, et al, Defendants-Appellants (Richard Eitel, Jr., Defendant).\nSecond District\nNo. 2\u201497\u20141228\nOpinion filed September 14, 1998.\nRussell J. Heitz, of Wyeth, Heitz & Bromberek, of Naperville, for appellants.\nCarol Proctor, of Hinshaw & Culbertson, of Chicago, for appellee."
  },
  "file_name": "1092-01",
  "first_page_order": 1112,
  "last_page_order": 1115
}