{ "id": 1472408, "name": "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Pekin Insurance v. Allstate Insurance", "decision_date": "2002-03-29", "docket_number": "No. 1\u201401\u20141594", "first_page": "46", "last_page": "51", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 46" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "697 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910180 ], "year": 1998, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0595-01" ] }, { "cite": "677 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "reversed on other grounds" } ], "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520920 ], "year": 1997, "pin_cites": [ { "page": "74", "parenthetical": "reversed on other grounds" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0061-01" ] }, { "cite": "424 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 33", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5496145 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0033-01" ] }, { "cite": "574 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5299119 ], "year": 1991, "pin_cites": [ { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0864-01" ] }, { "cite": "627 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2978445 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "694" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0686-01" ] }, { "cite": "710 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "186 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243901 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "371" }, { "page": "374", "parenthetical": "holding that an insurer will not be estopped from denying coverage merely because the underlying case proceeds to judgment before the declaratory judgment action is resolved" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0367-01" ] }, { "cite": "683 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025915 ], "year": 2000, "pin_cites": [ { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0863-01" ] }, { "cite": "561 N.E.2d 1142", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 170", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577833 ], "year": 1990, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0170-01" ] }, { "cite": "565 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 987", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2559096 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "990" }, { "page": "990" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0987-01" ] }, { "cite": "740 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026040 ], "year": 2000, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0569-01" ] } ], "analysis": { "cardinality": 527, "char_count": 11152, "ocr_confidence": 0.739, "pagerank": { "raw": 1.2057550698862797e-07, "percentile": 0.5947555243568254 }, "sha256": "74509a139fa56356332dbc0962e35dd6c596327a6243eed21edbfb9fefdb05f7", "simhash": "1:236b1b5ebbcbf776", "word_count": 1813 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nThe plaintiff, Pekin Insurance Company (Pekin), filed a complaint for declaratory judgment against the defendant, Allstate Insurance Company (Allstate), on August 3, 2000. Pekin\u2019s complaint for declaratory judgment requested that the court declare that Pekin and Allstate were co-insurers for the insured, Trevor Cary. Trevor Cary was being sued for damages in a cause filed on March 7, 1997, that was pending in the circuit court of Cook County.\nAllstate filed a counterclaim for declaratory judgment on December 4, 2000, alleging that it did not owe any liability as its policy excludes coverage of liability arising out of business pursuits. Allstate further alleged that it did not owe reimbursement to Pekin for the defense costs. On December 4, 2000, Allstate also filed an answer. On February 9, 2001, Allstate filed a motion for judgment on the pleadings requesting that the court declare that Pekin was the sole primary liability insurer of the insured and his business. The trial court entered judgment on the pleadings in favor of Allstate.\nPekin filed a timely appeal alleging that the trial court erred in allowing judgment on the pleadings because Allstate was estopped from raising defenses to coverage for failure to properly respond to the tender of defense.\nBACKGROUND\nPekin\u2019s action for declaratory judgment against Allstate arises from an action for damages brought by Rose Stolzenberg and Linda White, individually and as guardian of Nava R. Stolzenberg, an 11-year-old minor. The action named Trevor Cary, French Cary III and Corals & Critters Pet Store (Corals & Critters) as party defendants. The Stolzenberg action alleged that Nava Stolzenberg was attacked and injured by Trevor Cary\u2019s dog while in his pet store. On August 7, 2000, in a jury trial, Trevor Cary and Corals & Critters were found liable for the injuries resulting from the dog bite. French Cary III was dismissed from the case. The jury assessed damages at $50,000, jointly and severally, against Trevor Cary and Corals & Critters. Pekin issued an insurance policy to Corals & Critters, under which Trevor Cary was an insured, that was in effect during the time of the incident. Trevor Cary and Corals & Critters tendered their defense to Pekin. Pekin contacted Allstate asking Allstate to extend coverage to Trevor Cary in the defense of the Stolzenberg action. On November 14, 1999, Allstate corresponded with Pekin with carbon copies to Trevor Cary advising that its homeowner\u2019s policy was excess to Pekin\u2019s commercial policy and did not extend coverage to business pursuits. The correspondence also advised Pekin that the Pekin commercial policy provides that it is undoubtedly primary.\nOn August 3, 2000, Pekin filed its claim for declaratory judgment against Allstate, four days before the jury in the Stolzenberg action found Trevor Cary and Corals & Critters liable. On December 4, 2000, Allstate filed a counterclaim for declaratory judgment against Pekin alleging that Pekin was the sole primary insurer in the Stolzenberg action. The trial court entered judgment on the pleadings in favor of Allstate pursuant to a motion for judgment on the pleadings filed by Allstate on February 9, 2001. The trial court found that Pekin was the sole primary insurer and Allstate\u2019s policy was excess to Pekin\u2019s commercial policy.\nPekin appeals. We affirm.\nANALYSIS\nI\nThis matter arose from the granting of Allstate\u2019s motion for judgment on the pleadings pursuant to the Code of Civil Procedure (735 ILCS 5/2\u2014615(e) (West 1992)). The disposition of a judgment on the pleadings is not discretionary; therefore, our standard of review is de novo. Board of Trustees of the University of Illinois v. City of Chicago, 317 Ill. App. 3d 569, 571, 740 N.E.2d 515 (2000). A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint. Village of Worth v. Hahn, 206 Ill. App. 3d 987, 990, 565 N.E.2d 166 (1990). The motion requires the trial court to examine the pleadings and determine whether there is an issue of fact or whether the controversy can be resolved as a matter of law. Village of Worth, 206 Ill. App. 3d at 990. On appeal, the reviewing court must ascertain whether the trial court correctly determined that the pleadings presented no issue of material fact and, if there was no such issue, whether the court correctly entered the judgment. TDC Development Corp. v. First Federal Savings & Loan Ass\u2019n of Ottawa, 204 Ill. App. 3d 170, 174, 561 N.E.2d 1142 (1990).\nPekin argues that the trial court erred in granting judgment on the pleadings because Allstate was estopped from raising noncoverage as a defense. Pekin claims that Allstate did not defend the Stolzenberg action under reservation of right or seek a declaratory judgment that no coverage exists after receiving a tender of defense. See La Grange Memorial Hospital v. St. Paul Insurance Co., 317 Ill. App. 3d 863, 870, 683 N.E.2d 947 (2000).\nOur supreme court has held that when a complaint against the insured alleges facts within or potentially within the scope of the policy coverage, the insurer taking the position that the complaint is not covered by the policy has two options. It must either defend the suit under reservation of right or seek a declaratory judgment that there is no coverage. State Farm Fire & Casualty Co. v. Martin, 186 Ill. 2d 367, 371, 710 N.E.2d 1228 (1999). If the insurer refuses to defend under reservation or seek declaratory judgment, it may be found to have breached its duty to defend. La Grange, 317 Ill. App. 3d at 870. When an insurer has breached its duty to defend, it is estopped from raising any policy defenses based on noncoverage. La Grange, 317 Ill. App. 3d at 870.\nAllstate responds that the estoppel rule does not apply to this situation because an action for declaratory judgment was filed by Pekin prior to the resolution of the Stolzenberg action. Allstate relies on Sears, Roebuck & Co. v. Seneca Insurance Co., 254 Ill. App. 3d 686, 694, 627 N.E.2d 173 (1993). In that case the plaintiff brought a declaratory judgment action against the defendant insurance company to determine the issue of coverage. The court in Sears held that whether the plaintiff or defendant initiated the declaratory judgment action is irrelevant, and the estoppel rule does not apply when one party actively seeks, through a motion for summary judgment, an adjudication of its rights and duties. Sears, 254 Ill. App. 3d at 694. See also Village of Melrose Park v. Nautilus Insurance Co., 214 Ill. App. 3d 864, 867, 574 N.E.2d 198 (1991); Ayers v. Bituminous Insurance Co., 100 Ill. App. 3d 33, 35 n.l, 424 N.E.2d 1316 (1981).\nIn the instant case, Pekin brought an action for declaratory judgment on August 3, 2000. The underlying suit was resolved on August 7, 2000. The action for declaratory judgment, even though initiated by Pekin, was brought prior to the resolution of the Stolzenberg action. Allstate actively sought an adjudication of its rights by filing a counterclaim for declaratory judgment and a motion for judgment on the pleadings. As a result, Pekin\u2019s estoppel argument fails. State Farm, 186 Ill. 2d at 374 (holding that an insurer will not be estopped from denying coverage merely because the underlying case proceeds to judgment before the declaratory judgment action is resolved).\nAllstate also argues that it had no duty to defend. In their correspondence, Allstate claims that Pekin is solely responsible for defending Trevor Cary because it is the primary insurer and Allstate\u2019s policy is an excess policy. Allstate further claims that because Pekin did not reply to Allstate\u2019s letter and proceeded to defend Trevor Cary, Pekin acknowledged that Allstate had no duty to defend. However, we need not address that issue in light of our holding that Allstate was not barred by the estoppel doctrine from contesting the claim that it had a duty to defend because Pekin filed an action for declaratory judgment against Allstate while the suit against the insured was pending.\nII\nIn its counterclaim for declaratory judgment, Allstate further contends that its homeowner\u2019s policy is excess to Pekin\u2019s primary commercial policy and, thus, all coverage under Pekin\u2019s policy must first be exhausted. Universal Underwriters Insurance Group v. Griffin, 287 Ill. App. 3d 61, 74, 677 N.E.2d 1321 (1997) (reversed on other grounds). Pekin claims that both policies are excess policies and, therefore, both insurers must contribute equally to the defense and loss of the insured. North American Specialty Insurance Co. v. Liberty Mutual Insurance Co., 297 Ill. App. 3d 595, 598, 697 N.E.2d 347 (1998).\nThe relevant provisions of Pekin\u2019s insurance policy are as follows:\n\u201cH. OTHER INSURANCE\n1. If there is other insurance covering the same loss or damage, we will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance, whether you can collect it or not. But we will not pay more than the applicable Limit of Insurance.\n2. Business Liability Coverage is excess over any other insurance that insures for direct physical loss or damage ***.\u201d\nThe relevant provision of Allstate\u2019s policy is as follows:\n\u201c8. Other Insurance \u2014 Coverage X \u2014 Family Liability Protection. This insurance is excess over any other valid and collectible insurance except insurance that is written specifically as excess over the limits of liability that apply to this policy.\n* * *\n12. We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person.\u201d\nIn our view, Pekin\u2019s commercial insurance policy is not an excess policy. Pekin\u2019s policy states that \u201cif there is other insurance covering the same loss or damage, then [Pekin] will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance.\u201d In this case, there is no \u201cother insurance\u201d that covers the \u201csame loss or damage.\u201d\nThe Allstate policy is a homeowner\u2019s liability policy that was issued to Cary that insures his home and family. In addition, Allstate\u2019s policy contains an exclusion of coverage for bodily injury resulting from business pursuits. Pekin\u2019s commercial liability policy was issued to Corals & Critters and insures Carey\u2019s business from fire loss, physical damage to the store and third-party liability from claims arising from operations of the business. This incident took place at Cary\u2019s place of business, and, therefore, Pekin is the primary insurer. Accordingly, the trial court did not err in granting judgment on the pleadings in favor of Allstate.\nFor the forgoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nCOHEN, EJ., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Donald J. Kindwald and Jeffrey W Gott, both of Moltzen & Kindwald, Ltd., of Chicago, for appellant.", "Peter C. Morse, of Morse & Bolduc, of Chicago, for appellee." ], "corrections": "", "head_matter": "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201401\u20141594\nOpinion filed March 29, 2002.\nDonald J. Kindwald and Jeffrey W Gott, both of Moltzen & Kindwald, Ltd., of Chicago, for appellant.\nPeter C. Morse, of Morse & Bolduc, of Chicago, for appellee." }, "file_name": "0046-01", "first_page_order": 64, "last_page_order": 69 }