{ "id": 349543, "name": "HARTFORD INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellant, v. ROBERT KELLY, Defendant-Appellee (Tiffany Hawkins, Defendant)", "name_abbreviation": "Hartford Insurance v. Kelly", "decision_date": "1999-12-14", "docket_number": "No. 1\u201498\u20143044", "first_page": "800", "last_page": "807", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 800" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "568 A.2d 1100", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7358122 ], "year": 1990, "pin_cites": [ { "page": "1102" } ], "opinion_index": 0, "case_paths": [ "/a2d/568/1100-01" ] }, { "cite": "620 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1078" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "year": 1993, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "597 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "723", "parenthetical": "\"Legal conclusions unsupported by allegations of specific facts are insufficient to state a cause of action\"" } ], "opinion_index": 0 }, { "cite": "232 Ill. 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App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381913 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0501-01" ] }, { "cite": "726 F. Supp. 618", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 6051808 ], "year": 1989, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/f-supp/726/0618-01" ] }, { "cite": "644 N.E.2d 486", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2592618 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "927" }, { "page": "928" }, { "page": "928" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0921-01" ] }, { "cite": "553 N.E.2d 1181", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "1184" }, { "page": "1184" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. 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App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581931 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "649 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249081 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0898-01" ] } ], "analysis": { "cardinality": 763, "char_count": 16791, "ocr_confidence": 0.763, "pagerank": { "raw": 1.4617296281456357e-07, "percentile": 0.6574725012925464 }, "sha256": "a3e369f077ca79b77159a9d16a3ddb4a79fa9992ae27c52d783aa7bb31318759", "simhash": "1:2a16d77887d9fa24", "word_count": 2710 }, "last_updated": "2023-07-14T20:36:09.526568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HARTFORD INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellant, v. ROBERT KELLY, Defendant-Appellee (Tiffany Hawkins, Defendant)." ], "opinions": [ { "text": "PRESIDING JUSTICE COUSINS\ndelivered the opinion of the court:\nPlaintiff, the Hartford Insurance Company of Illinois (the insurance company), brought an action against its policyholder, Robert Kelly, seeking a declaration that it owed no duty to defend or indemnify its insured under a homeowner\u2019s policy for an underlying lawsuit brought by Tiffany Hawkins in the circuit court of Cook County. On cross-motions for judgment on the pleadings, the circuit court entered judgment for Kelly and against the insurance company, reasoning that the insurance company owed Kelly a duty to defend because there were sufficient facts pled in the underlying complaint to give rise to coverage. The insurance company appeals, contending that: (1) since Kelly\u2019s insurance policy excluded coverage for bodily injuries that are \u201cexpected or intended,\u201d the underlying complaint against him for sexual misconduct against a minor absolves the company\u2019s duty to defend under the policy; and (2) the lower court erred in granting Kelly\u2019s cross-motion for judgment on the pleadings, as it never ruled on the other policy provisions establishing no coverage.\nFor the reasons articulated below, we reverse.\nBACKGROUND\nThe insurance company issued a new homeowner\u2019s policy to Kelly for the time period of March 16, 1994, to March 16, 1995, at an annual premium of $976. The policy protected Kelly for personal liability losses and provided:\n\u201cIf a claim is made or a suit brought against [Kelly] for damages because of bodily injury or property damage caused by Liability [sic] an occurrence to which this coverage applies, [the insurance company] will: *** provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.\u201d\n\u201cOccurrence\u201d is defined therein as \u201can accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period in: (a) bodily injury, or (b) property damage.\u201d The policy further provided, however, that it did not apply to bodily injury or property damage that was \u201cexpected or intended\u201d by the insured.\nOn February 18, 1997, Hawkins filed a 24-count first amended complaint at law against Kelly and seven separate corporate entities. As to Kelly, an entertainer and recording artist known as \u201cR. Kelly,\u201d the complaint contained a series of allegations under separate counts of negligence, intentional sexual battery and sexual harassment. In both the negligence and intentional sexual battery counts of the underlying complaint, it was alleged:\n\u201c2. Commencing on or about the year of 1991, the defendant, ROBERT KELLY, engaged in improper sexual conduct including intercourse with the plaintiff, TIFFANY HAWKINS, in that the plaintiff, TIFFANY HAWKINS, was a minor.\n3. Beginning in 1991 up to and including October of 1994, defendant, ROBERT KELLY, was negligent in one or more of the following ways:\na. Engaged in inappropriate sexual contact with the plaintiff, TIFFANY HAWKINS, including but not limited to, engaging in group sexual intercourse with the plaintiff, TIFFANY HAWKINS, and other minors;\nb. Encouraged and engaged in inappropriate, intimate sexual contact with a minor;\nc. Was in violation of criminal statutes of the State of Illinois in engaging in sexual intercourse with a minor;\nd. Encouraged and engaged in conduct which defendant, ROBERT KELLY, knew or should have known was likely to cause severe emotional harm to plaintiff, TIFFANY HAWKINS.\u201d\nThe sexual harassment count alleged similar facts but was later dismissed by the circuit court.\nUpon receipt, Kelly tendered the complaint to the insurance company for defense under his homeowner\u2019s policy. The insurance company denied Kelly\u2019s request for a defense and, instead, filed an amended complaint for declaratory judgment in the circuit court of Cook County on May 19, 1997. Therein, the insurance company sought a declaration that it had no duty to defend or indemnify Kelly in connection with the civil action against him, alleging six reasons for excluding coverage under Kelly\u2019s policy: (1) the allegations within the underlying complaint constituted \u201cintentional behavior\u201d that did not give rise to an \u201coccurrence\u201d under the policy; (2) Kelly did not give the insurance company notice of an \u201coccurrence\u201d as soon as possible, as was required under the policy; (3) the underlying complaint alleged \u201cbodily injury\u201d that was outside of the policy period; (4) the allegations within the underlying complaint constituted \u201cintentional behavior\u201d that falls within the \u201cexpected and intended\u201d exclusion of the policy; (5) to the extent the allegations of the underlying complaint arose out of Kelly\u2019s business pursuits, they fell within the policy exclusion for damages \u201carising out of or in connection with a business engaged in by [Kelly]\u201d; and (6) the allegations of the underlying complaint \u201cmay constitute a loss in progress\u201d or a \u201cknown loss.\u201d\nOn December 8, 1997, Kelly answered and counterclaimed, alleging that the insurance company breached its obligation to defend in that the underlying complaint, at a minimum, gave rise to potential coverage under applicable Illinois law and the terms of the policy.\nIn response, on February 23, 1998, the insurance company filed a motion for judgment on the pleadings, contending that, because allegations of direct sexual misconduct by Kelly were contained in the underlying complaint, they gave rise, as a matter of law, \u201cto inferred specific intent to harm, and thus coverage [was] precluded under Kelly\u2019s homeowner\u2019s policy.\u201d On March 23, 1998, Kelly filed a cross-motion for judgment on the pleadings, requesting a declaration that the insurance company had a duty to defend because the allegations of the underlying complaint gave rise to covered or potentially covered claims under the policy.\nOn June 4, 1998, after hearing argument, the circuit court denied the insurance company\u2019s motion and granted Kelly\u2019s cross-motion for judgment on the pleadings. Specifically citing to the Fifth District Appellate Court\u2019s ruling in Shell Oil Co. v. A C & S, Inc., 271 Ill. App. 3d 898, 649 N.E.2d 946 (1995), the lower court found \u201csufficient facts in the underlying complaint to warrant coverage.\u201d\nOn July 15, 1998, the insurance company filed a motion to reconsider, seeking reconsideration of the lower court\u2019s order in light of Illinois case law previously tendered to the court and relied upon by the insurance company regarding the \u201cinferred intent\u201d doctrine. In the alternative, the insurance company requested a clarification that its motion for judgment on the pleadings was denied only as to counts I and IV\nOn July 22, 1998, the circuit court entered an order stating that \u201cthe intended purpose of a motion to reconsider is to bring to the court\u2019s attention changes in the law or errors in the court\u2019s previous application of existing law,\u201d citing Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 518 N.E.2d 424 (1987). The court found that it did not misapply existing case law and, as such, it denied the insurance company\u2019s motion for reconsideration.\nOn August 18, 1998, the insurance company timely filed its notice of appeal.\nDISCUSSION\nThis is an action for declaratory relief (see 735 ILCS 5/2 \u2014 701 (West 1996)) in which the circuit court granted defendant\u2019s cross-motion for judgment on the pleadings (see 735 ILCS 5/2 \u2014 615(e) (West 1996)). A motion for judgment on the pleadings is like a motion for summary judgment limited to the pleadings. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999). Thus, judgment on the pleadings is proper \u201c \u2018[i]f the admissions in the pleadings disclose that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.\u2019 \u201d Employers Insurance, 186 Ill. 2d at 138, 708 N.E.2d at 1129, quoting 3 R. Michael, Illinois Practice \u00a7 27.2, at 494 (1989). As our review of the case at bar hinges on the construction of an insurance policy, it is de novo. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80, 687 N.E.2d 72, 75 (1997); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204, 1212 (1992).\nGenerally, in Illinois, an insurance company\u2019s obligation to provide or pay for counsel for its insured depends upon the allegations of the complaint and the applicable provisions of the insurance policy. West American Insurance Co. v. Vago, 197 Ill. App. 3d 131, 136, 553 N.E.2d 1181, 1184 (1990). In cases where the underlying claim involves conduct that resulted in injuries that are either \u201cexpected or intended\u201d by the insured, the insurance company is absolved from liability (see Scudder v. Hanover Insurance Co., 201 Ill. App. 3d 921, 927, 559 N.E.2d 559, 562 (1990)) because it is believed that the insured acted with specific intent to injure or cause harm to a third party (Cowan v. Insurance Co. of North America, 22 Ill. App. 3d 883, 892-93, 318 N.E.2d 315, 325 (1974)).\n\u201c \u2018A person who sexually abuses a minor cannot expect his insurer to cover his misconduct and cannot escape personal liability by claiming that he did not intend to cause any harm. In situations such as this, injury always ensues, and we conclude that one who manipulates children for his own sexual gratification intends any resulting injuries, as a matter of law.\u2019 \u201d (Emphasis in original.) Western States Insurance Co. v. Bobo, 268 Ill. App. 3d 513, 520, 644 N.E.2d 486, 491 (1994), quoting Foremost Insurance Co. v. Weetman, 726 F. Supp. 618, 622 (W.D. Pa. 1989).\nAccordingly, where an underlying complaint sets forth factual allegations of sexual misconduct, specific intent to harm is inferred as a matter of law, especially when the victims are minors. State Farm Fire & Casualty Co. v. Watters, 268 Ill. App. 3d 501, 507, 644 N.E.2d 492, 496-97 (1994); Scudder, 201 Ill. App. 3d at 928, 559 N.E.2d at 563; Bobo, 268 Ill. App. 3d at 516-17, 644 N.E.2d at 491. And, \u201c[t]he practical effect of [the inferred intent] rule is that the insurer will have no duty to defend or provide coverage to the insured.\u201d Bobo, 268 Ill. App. 3d at 516, 644 N.E.2d at 488-89.\nRelying on \u201cinferred intent\u201d case law, the insurance company in the case sub judice contends that, since Kelly\u2019s insurance policy excluded coverage for bodily injuries that were \u201cexpected or intended,\u201d the underlying civil suit against Kelly for sexual misconduct against a minor absolves the company\u2019s duty to defend under the policy. Kelly, however, contends that the insurance company has a duty to defend, as the allegations of the underlying complaint must be construed liberally in favor of policy coverage with all doubts and ambiguities resolved in the policyholder\u2019s favor. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74, 578 N.E.2d 926, 930 (1991).\nIn determining whether there is a duty to defend, a court looks to the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy. Koloms, 177 Ill. 2d at 479, 687 N.E.2d at 75. If the facts alleged in the underlying complaint fall within, or potentially within, the language of the policy, the insurer\u2019s duty to defend arises. Koloms, 177 Ill. 2d at 479, 687 N.E.2d at 75. Moreover, the duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured, even if only one or some of them are within the policy coverage. Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 194, 355 N.E.2d 24, 28 (1976); Vago, 197 Ill. App. 3d at 136, 553 N.E.2d at 1184.\nHere, both the negligence and intentional sexual battery counts of the underlying complaint include the following allegations:\n\u201c2. Commencing on or about the year of 1991, the defendant, ROBERT KELLY, engaged in improper sexual conduct including intercourse with the plaintiff, TIFFANY HAWKINS, in that the plaintiff, TIFFANY HAWKINS, was a minor.\n3. Beginning in 1991 up to and including October of 1994, defendant, ROBERT KELLY, was negligent in one or more of the following ways:\na. Engaged in inappropriate sexual contact with the plaintiff, TIFFANY HAWKINS, including but not limited to, engaging in group sexual intercourse with the plaintiff, TIFFANY HAWKINS, and other minors;\nb. Encouraged and engaged in inappropriate, intimate sexual contact with a minor;\nc. Was in violation of criminal statutes of the State of Illinois in engaging in sexual intercourse with a minor;\nd. Encouraged and engaged in conduct which defendant, ROBERT KELLY, knew or should have known was likely to cause severe emotional harm to plaintiff, TIFFANY HAWKINS.\u201d\nKelly contends that, because the duty to defend is broad and requires the insurer to provide a defense if there is any allegation potentially giving rise to coverage under the policy (Conway v. Country Casualty Insurance Co., 92 Ill. 2d 388, 393, 442 N.E.2d 245, 247 (1982)), the general allegation of \u201cconduct\u201d found in subparagraph (d) of the underlying complaint requires the insurance company to defend, as the allegation does not specifically refer to inappropriate \u201csexual\u201d conduct with a minor.\nIn our view, the underlying complaint sets forth factual allegations of sexual misconduct with a minor. Subparagraph (d), read in context with the remaining allegations of the complaint, refers to the \u201cimproper sexual conduct including intercourse\u201d that Kelly allegedly \u201cengaged in\u201d from 1991 until October 1994. Subparagraph (d), if taken alone, is a legal conclusion, rather than a factual allegation, which does not give rise to coverage under the duty to defend. See Ault v. C.C. Services, Inc., 232 Ill. App. 3d 269, 273, 597 N.E.2d 720, 723 (1992) (\u201cLegal conclusions unsupported by allegations of specific facts are insufficient to state a cause of action\u201d). Furthermore, when comparing the factual allegations of the underlying complaint to the relevant provisions of the insurance policy, a court is to ascertain and give effect to the intentions of the parties as expressed in their agreement. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073, 1078 (1993). If the terms of the policy are clear and unambiguous, they must be given their plain and ordinary meaning. Outboard Marine, 154 Ill. 2d at 108, 607 N.E.2d at 1212. In doing so, a court is to construe the policy as a whole and take into account the type of insurance policy purchased, the nature of the risks involved and the overall purpose of the contract. Koloms, 177 Ill. 2d at 479, 687 N.E.2d at 75.\nThe homeowner\u2019s insurance policy in question excludes coverage for bodily injury caused by an \u201coccurrence,\u201d as defined therein, which is \u201cexpected or intended\u201d by the insured. This language is clear and unambiguous; therefore, in our view, the parties did not intend to include in the definition of \u201coccurrence\u201d inappropriate sexual misconduct of a minor. Indeed, \u201c \u2018[t]he average person purchasing homeowner\u2019s insurance would cringe at the very suggestion that [the person] was paying for such coverage. And certainly [the person] would not want to shar\u00e9 that type of risk with other homeowner\u2019s policyholders.\u2019 \u201d Watters, 268 Ill. App. 3d at 501, 644 N.E.2d at 500, quoting Perreault v. Maine Bonding & Casualty Co., 568 A.2d 1100, 1102 (Me. 1990). While Kelly adamantly denies the allegations set forth in the underlying complaint, in cases where adults have been charged with having sex with minors or sexually assaulting adults, specific intent to harm is inferred as a matter of law and insurance coverage is excluded under the homeowner\u2019s policy. See Watters, 268 Ill. App. 3d at 507, 644 N.E.2d at 496-97; Scudder, 201 Ill. App. 3d at 928, 559 N.E.2d at 563; Bobo, 268 Ill. App. 3d at 516, 644 N.E.2d at 491.\nAccordingly, we agree that the insurance company is absolved from the duty to defend under Kelly\u2019s homeowner\u2019s insurance policy, as coverage is excluded under the \u201cexpected or intended\u201d exclusion found therein. As such, we reverse the decision of the lower court. Because of our ruling, it is unnecessary to address the insurance company\u2019s remaining contention regarding \u201cother policy provisions\u201d it asserts were not ruled on by the lower court.\nReversed.\nMcBRIDE and McNULTY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE COUSINS" } ], "attorneys": [ "Hinshaw & Culbertson, of Chicago (Kevin R. Sido, Nancy G. Lischer, and Colleen Danaher Contreras, of counsel), for appellant.", "John M. Touhy, Alan J. Martin, and Scott V Scarpelli, all of Mayer, Brown & Platt, of Chicago, for appellee." ], "corrections": "", "head_matter": "HARTFORD INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellant, v. ROBERT KELLY, Defendant-Appellee (Tiffany Hawkins, Defendant).\nFirst District (2nd Division)\nNo. 1\u201498\u20143044\nOpinion filed December 14, 1999.\nHinshaw & Culbertson, of Chicago (Kevin R. Sido, Nancy G. Lischer, and Colleen Danaher Contreras, of counsel), for appellant.\nJohn M. Touhy, Alan J. Martin, and Scott V Scarpelli, all of Mayer, Brown & Platt, of Chicago, for appellee." }, "file_name": "0800-01", "first_page_order": 820, "last_page_order": 827 }