{ "id": 5435844, "name": "RONNIE L. LYONS, Plaintiff-Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant", "name_abbreviation": "Lyons v. State Farm Fire & Casualty Co.", "decision_date": "2004-05-27", "docket_number": "No. 5-02-0597", "first_page": "404", "last_page": "415", "citations": [ { "type": "official", "cite": "349 Ill. App. 3d 404" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "466 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1095-96" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596668 ], "year": 1984, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0150-01" ] }, { "cite": "430 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1082-83" } ], "opinion_index": 0 }, { "cite": "88 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082811 ], "year": 1981, "pin_cites": [ { "page": "451-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0444-01" ] }, { "cite": "649 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "949" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249081 ], "year": 1995, "pin_cites": [ { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0898-01" ] }, { "cite": "553 N.E.2d 1181", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "1185" }, { "page": "1185", "parenthetical": "the sexually assaulted victim's resultant emotional injuries should have been anticipated by the insured and consequently were expected injuries" } ], "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2480299 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0131-01" ] }, { "cite": "451 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "882" }, { "page": "882", "parenthetical": "the supreme court found that the insured, who had intentionally shot the victim and was later convicted, had expected the injury because injuries were practically certain to result from the conduct" } ], "opinion_index": 0 }, { "cite": "96 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114017 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "493" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0487-01" ] }, { "cite": "281 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "51 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390255 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0143-01" ] }, { "cite": "18 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438680 ], "year": 1857, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill/18/0403-01" ] }, { "cite": "680 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "275" }, { "page": "279" }, { "page": "279" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "199" }, { "page": "207" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "66 Colum. L. Rev. 917", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1966, "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "435 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "448" }, { "page": "449" } ], "opinion_index": 0 }, { "cite": "91 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092944 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "81" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0069-01" ] }, { "cite": "976 F.2d 1037", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11291771 ], "year": 1992, "pin_cites": [ { "page": "1041", "parenthetical": "cites to Dial for this proposition" } ], "opinion_index": 0, "case_paths": [ "/f2d/976/1037-01" ] }, { "cite": "668 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "230", "parenthetical": "cites to Dial for this proposition" }, { "page": "230" }, { "page": "231" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159476 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "139", "parenthetical": "cites to Dial for this proposition" }, { "page": "139" }, { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0129-01" ] }, { "cite": "411 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481086 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "556-57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0548-01" ] }, { "cite": "781 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521976 ], "year": 2002, "pin_cites": [ { "page": "1031" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/1026-01" ] }, { "cite": "776 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "595" }, { "page": "595-96" } ], "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486540 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "878" }, { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0871-01" ] }, { "cite": "111 N.E.2d 516", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "517-18" } ], "opinion_index": 0 }, { "cite": "415 Ill. 16", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2682181 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill/415/0016-01" ] }, { "cite": "144 N.E. 161", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "312 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5121664 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ill/312/0525-01" ] }, { "cite": "131 U.S. 100", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5698490 ], "weight": 9, "year": 1889, "pin_cites": [ { "page": "121" }, { "page": "67" }, { "page": "762" }, { "page": "121" }, { "page": "67" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/us/131/0100-01" ] }, { "cite": "411 N.E.2d 1157", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "1159" }, { "page": "1159" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5539340 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "619" }, { "page": "619" }, { "page": "622" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0617-01" ] }, { "cite": "644 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "495-96" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381913 ], "year": 1994, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0501-01" ] }, { "cite": "473 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "411" }, { "page": "411" }, { "page": "411" } ], "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490015 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "1096" }, { "page": "1097" }, { "page": "1097" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1089-01" ] }, { "cite": "578 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1991, "pin_cites": [ { "page": "930" }, { "page": "930" }, { "page": "933" }, { "page": "930" }, { "page": "930" }, { "page": "932" }, { "page": "933" } ], "opinion_index": 0 }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "73" }, { "page": "74" }, { "page": "78" }, { "page": "73" }, { "page": "73-74" }, { "page": "77-78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1212" }, { "page": "1221" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "108" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "702 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221488 ], "year": 1998, "pin_cites": [ { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0797-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "28" }, { "page": "28" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "193" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0187-01" ] }, { "cite": "777 N.E.2d 986", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "989" }, { "page": "990" } ], "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 404", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521952 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "407" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0404-01" ] }, { "cite": "708 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "1129" }, { "page": "1135" }, { "page": "1136" }, { "page": "1135" }, { "page": "1135" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243917 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "138" }, { "page": "151" }, { "page": "153" }, { "page": "151-52" }, { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0127-01" ] } ], "analysis": { "cardinality": 1154, "char_count": 27375, "ocr_confidence": 0.749, "pagerank": { "raw": 2.461266654016444e-07, "percentile": 0.8055340292040192 }, "sha256": "be567da98f6c9ddab073e0e8b503d42891e2ee501194097c5d73918eb51712e2", "simhash": "1:3b281f58bff43c84", "word_count": 4478 }, "last_updated": "2023-07-14T17:18:36.100393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KiTEHN and DONOVAN, JJ., concur." ], "parties": [ "RONNIE L. LYONS, Plaintiff-Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CHAPMAN\ndelivered the opinion of the court:\nThe plaintiff, Ronnie L. Lyons, filed a complaint for a declaratory judgment in the circuit court of Williamson County. He sought a determination of whether the defendant, State Farm Fire and Casualty Company (State Farm), had a duty to defend and indemnify him under a homeowner\u2019s policy against a neighbor\u2019s lawsuit claiming trespass, permanent injunction, and replevin. The trial court found in Lyons\u2019 favor, ordering State Farm to provide a defense in the underlying claim. State Farm appeals. We affirm in part and reverse in part.\nI. BACKGROUND\nOn May 9, 2001, Tony and Deena Rendleman, who owned property that adjoined property owned by Lyons, filed a lawsuit against Lyons in the circuit court of Perry County, cause No. 01 \u2014 CH\u201411. The Rendlemans made the following allegations in their complaint: (1) trespass \u2014 that Lyons had built levees that protruded onto their property, (2) permanent injunction \u2014 that when Lyons would harvest fish from the pond that he had constructed for a commercial fish operation, he would drain the pond by diverting water onto the Rendlemans\u2019 property, in violation of article II of the Illinois Drainage Code (70 ILCS 605/2 \u2014 1 et seq. (West 2000)), and (3) replevin \u2014 that Lyons had wrongfully detained the Rendlemans\u2019 personal property (i.e., a brushcutter).\nLyons tendered his defense to his insurer State Farm under his homeowner\u2019s policy. State Farm refused to defend Lyons, raising policy defenses. In response, Lyons filed a complaint for a declaratory judgment in Williamson County and sought coverage and indemnification under the policy. State Farm and Lyons each filed a motion for a judgment on the pleadings. The trial court granted Lyons\u2019 motion, entering a judgment on the pleadings. State Farm appeals this final judgment, following the trial court\u2019s denial of its motion to reconsider..\nII. ANALYSIS\nA motion for a judgment on the pleadings is akin to a motion for a summary judgment, but it is limited to the pleadings. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999). We review a judgment on the pleadings on a de novo basis. State Farm Fire & Casualty Co. v. Tillerson, 334 Ill. App. 3d 404, 407, 777 N.E.2d 986, 989 (2002).\nThe issues before us are whether State Farm has a duty to defend and indemnify Lyons under its homeowner\u2019s policy against the complaint filed by the Rendlemans.\nFirst, we review the well-settled law regarding the construction of insurance policies as it relates to the rights and obligations of the parties. It is the general rule that the duty of the insurer is determined by the allegations of the underlying complaint. Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28 (1976). A duty to defend arises if the complaint\u2019s allegations fall within or potentially within the coverage provisions of the policy. Chandler v. Doherty, 299 Ill. App. 3d 797, 801, 702 N.E.2d 634, 637 (1998); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204, 1212 (1992). This is true even if the allegations are groundless, false, or fraudulent or if only one of several theories advanced is potentially within policy coverage. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926, 930 (1991); Peppers, 64 Ill. 2d at 194, 355 N.E.2d at 28. The threshold requirements for the complaint\u2019s allegations are low. Management Support Associates v. Union Indemnity Insurance Co. of New York, 129 Ill. App. 3d 1089, 1096, 473 N.E.2d 405, 411 (1984). In a court\u2019s determination of the duty to defend, the underlying complaint is to be liberally construed in favor of the insured, and doubts and ambiguities are to be construed in favor of the insured. Wilkin Insulation Co., 144 Ill. 2d at 74, 578 N.E.2d at 930. A determination regarding an exclusionary clause is subject to the same liberal standard. Wilkin Insulation Co., 144 Ill. 2d at 78, 578 N.E.2d at 933. The factual allegations of the complaint, rather than the legal theories, determine a duty to defend. Management Support Associates, 129 Ill. App. 3d at 1097, 473 N.E.2d at 411. \u201cAn insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaints that the allegations fail to state facts which bring the case within, or potentially within, the policy\u2019s coverage.\u201d (Emphasis in original.) Wilkin Insulation Co., 144 Ill. 2d at 73, 578 N.E.2d at 930.\nKeeping these principles in mind, we turn now to compare the allegations of the underlying complaint with the relevant portions of the insurance policy.\nThe underlying complaint was brought in three counts: count I \u2014 trespass, count II \u2014 permanent injunction, and count III \u2014 replevin. While State Farm argues against coverage on all three counts, Lyons does not argue for coverage on count II or count III, conceding at oral argument that coverage does not apply for those counts. Because the duty to defend a lawsuit arises even if only one of several theories of recovery is within the potential coverage of the policy, we therefore proceed to consider the potential for coverage on count I without the necessity of considering State Farm\u2019s arguments regarding counts II and III. See Wilkin Insulation Co., 144 Ill. 2d at 73-74, 578 N.E.2d at 930.\nCount I includes the following allegations: \u201cDefendant has trespassed on Plaintiffs\u2019 Property in that Defendant has constructed levees that protrude onto Plaintiffs\u2019 Property,\u201d and \u201cDefendant\u2019s actions constitute a wrongful interference with Plaintiffs\u2019 actual possessory rights in Plaintiffs\u2019 Property.\u201d\nLyons\u2019 liability policy provides coverage for \u201cdamages because of bodily injury or property damage to which this coverage applies, caused by an occurrence.\u201d It excludes coverage for property damage that \u201cis either expected or intended by the insured.\u201d The policy defines \u201coccurrence\u201d as \u201can accident, including exposure to conditions, which results in: a. bodily injury; or b. property damage.\u201d The policy also states as follows: \u201c \u2018[Pjroperty damage\u2019 means physical damage to or destruction of tangible property, including loss of use of this property. Theft or conversion of property by any insured is not property damage.\u201d\nOccurrence\nState Farm argues that the act of constructing levees was intentional and therefore was not an \u201coccurrence\u201d within the meaning of the policy, which defines \u201coccurrence\u201d as \u201can accident.\u201d It further argues that the levees are the \u201cnatural and ordinary consequences\u201d of the act of construction and therefore do not constitute \u201can accident.\u201d In support of these arguments, State Farm cites to several cases that define an accident as \u201c \u2018 \u201can unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character.\u201d \u2019 \u201d Tillerson, 334 Ill. App. 3d at 409, 777 N.E.2d at 990, quoting State Farm Fire & Casualty Co. v. Watters, 268 Ill. App. 3d 501, 506, 644 N.E.2d 492, 495-96 (1994), quoting Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619, 411 N.E.2d 1157, 1159 (1980).\nIn determining what constitutes an accident, Illinois adheres to the rule of law promulgated by the United States Supreme Court more than a century ago in United States Mutual Accident Ass\u2019n v. Barry, 131 U.S. 100, 33 L. Ed. 60, 9 S. Ct. 755 (1889). In the Barry case three men jumped to the ground from a platform several feet high. The three men were physicians who had just finished visiting a patient and were attempting to take a shortcut to their next destination. Two of the men landed safely; however, Dr. Barry landed awkwardly. He immediately became ill and died a few days later from a twisted duodenum caused by his bad landing. His insurer raised a policy defense contending that Dr. Barry\u2019s death was not accidental within the meaning of the policy. At the trial a jury found that the event had occurred accidentally. The United States Supreme Court upheld the verdict, approving the following instructions with regard to finding an accident under the policy:\n\u201cThe court properly instructed [the jurors] that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term \u2018accidental\u2019 was used in the policy in its ordinary, popular sense, as meaning \u2018happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected\u2019; that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.\u201d Barry, 131 U.S. at 121, 33 L. Ed. at 67, 9 S. Ct. at 762.\nThe court reasoned that while Dr. Barry intended to jump, he believed and intended that he would land safely from the jump; the fact that he did not land safely as expected constituted the accident. Barry, 131 U.S. at 121, 33 L. Ed. at 67, 9 S. Ct. at 762.\nThe Illinois Supreme Court adopted the Barry interpretation of \u201caccident\u201d in Christ v. Pacific Mutual Life Insurance Co., 312 Ill. 525, 144 N.E. 161 (1924). Some 60 years after Barry, the Illinois Supreme Court summarized the rule promulgated in the Barry case, in the case of Yates v. Bankers Life & Casualty Co., 415 Ill. 16, 111 N.E.2d 516 (1953):\n\u201c[I]f an act is performed with the intention of accomplishing a certain result, and if, in the attempt to accomplish that result, another result, unintended and unexpected, and not the rational and probable consequence of the intended act, in fact, occurs, such unintended result is deemed to be caused by accidental means.\u201d Yates, 415 Ill. at 19, 111 N.E.2d at 517-18.\nHere, we find that State Farm\u2019s application of the definition of an accident is misunderstood. The focus of the inquiry in determining whether an occurrence is an accident is whether the injury is expected or intended by the insured, not whether the acts were performed intentionally. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 77-78, 578 N.E.2d 926, 932 (1991); Aetna Casualty & Surety Co. v. O\u2019Rourke Bros., Inc., 333 Ill. App. 3d 871, 878, 776 N.E.2d 588, 595 (2002); American Family Mutual Insurance Co. v. Enright, 334 Ill. App. 3d 1026, 1031, 781 N.E.2d 394, 398 (2002). There is no question that Lyons intended to build levees surrounding his pond. The question determining policy coverage is whether he intended to build a part of the levees over the property line onto the Rendlemans\u2019 property. If Lyons did not intend to build a part of the levees onto the Rendlemans\u2019 property, then the result can be said to be unintended or unexpected. If answered in the affirmative, then he intended the injury, i.e., the trespass, and coverage would not apply. State Farm\u2019s corollary argument \u2014 that because the levees were the natural and ordinary consequence of Lyons\u2019 conduct (the intentional act of construction), they do not constitute an accident \u2014 is equally unavailing. If the focus of that inquiry had been injury- or result-oriented, the question then becomes whether building a part of the levees onto the Rendlemans\u2019 property is the \u201cnatural and ordinary consequence\u201d of the act of constructing levees. We believe that this question can obviously be answered in the negative.\nFurther, the extension of coverage from \u201caccident\u201d to \u201coccurrence,\u201d as in this policy, has generally been considered to broaden coverage. Freyer, 89 Ill. App. 3d at 619, 411 N.E.2d at 1159, citing 7A J. Appleman, Insurance Law and Practice \u00a7 4493 (1979).\nWe have reviewed the underlying complaint and are unable to find any allegations that even suggest that Lyons expected or intended to build the levees so that they extended onto the Rendlemans\u2019 property. Nevertheless, State Farm argues that because the complaint characterizes the intrusion upon the Rendlemans\u2019 property as a trespass, intent is implied as a necessary element of that tort. State Farm further contends that trespass cannot be premised upon negligent conduct, citing to the Illinois Supreme Court case of Dial v. City of O\u2019Fallon, 81 Ill. 2d 548, 411 N.E.2d 217 (1980). We reject outright State Farm\u2019s assertion that trespass cannot be based on negligent conduct. Contrary to State Farm\u2019s claim, the Dial court stated, \u201c[O]ne can be liable under present-day trespass for causing a thing or a third person to enter the land of another either through a negligent act or [through] an intentional act.\u201d Dial, 81 Ill. 2d at 556-57, 411 N.E.2d at 222; see also Millers Mutual Insurance Ass\u2019n of Illinois v. Graham Oil Co., 282 Ill. App. 3d 129, 139, 668 N.E.2d 223, 230 (1996) (cites to Dial for this proposition); Pipefitters Welfare Educational Fund v. Westchester Fire Insurance Co., 976 F.2d 1037, 1041 (7th Cir. 1992) (cites to Dial for this proposition). This legal premise comports with Prosser on Torts:\n\u201cThe defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong. Thus he is a trespasser although he believes that the land is his own ***. The interest of the landowner is protected at the expense of those who make innocent mistakes.\u201d W Prosser, Torts \u00a7 13, at 74 (4th ed. 1971).\nMoreover, it is the factual allegations of the complaint, rather than the legal theories, that determine a duty to defend. Management Support Associates, 129 Ill. App. 3d at 1097, 473 N.E.2d at 411.\nFinally, State Farm contends that the application of the Moorman doctrine prohibits recovery. Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982). State Farm argues that under the Moorman doctrine, in general, a tort does not lie absent an accident defined as a sudden and calamitous event. This argument mischaracterizes the doctrine. In Moorman Manufacturing Co., the plaintiff brought a products liability suit alleging that a defect in a grain-storage tank had caused it to crack. The Illinois Supreme Court held that solely economic losses are not recoverable in tort actions for products liability. Moorman Manufacturing Co., 91 Ill. 2d at 81, 435 N.E.2d at 448. The court then quoted with favor this definition of \u201ceconomic loss\u201d: \u201c \u2018damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits\u2014 without any claim of personal injury or damage to other property.\u2019 \u201d Moorman Manufacturing Co., 91 Ill. 2d at 82, 435 N.E.2d at 449, quoting Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966). Three exceptions to the economic loss rule were enumerated in Moorman Manufacturing Co.: \u201c(1) where the plaintiff sustained damage, i.e., personal injury or property damage, resulting from a sudden or dangerous occurrence [citation]; (2) where the plaintiff\u2019s damages are proximately caused by a defendant\u2019s intentional, false representation, i.e., fraud [citation]; and (3) where the plaintiff\u2019s damages are proximately caused by a negligent misrepresentation by a defendant in the business of supplying information for the guidance of others in their business transactions [citation].\u201d (Emphasis omitted.) In re Chicago Flood Litigation, 176 Ill. 2d 179, 199, 680 N.E.2d 265, 275 (1997).\nIn the instant case we find that the Rendlemans\u2019 complaint seeks consequential damages directly related to the damage caused by the trespass. \u201cA trespass is an invasion in the exclusive possession and physical condition of land.\u201d Millers Mutual Insurance Ass\u2019n of Illinois, 282 Ill. App. 3d at 139, 668 N.E.2d at 230. Depending upon the nature of the trespass, it can be said to be \u201c \u2018purely an injury to land.\u2019 \u201d Millers Mutual Insurance Ass\u2019n of Illinois, 282 Ill. App. 3d at 140, 668 N.E.2d at 231, quoting Reed v. Peoria & Oquawka R.R. Co., 18 Ill. 403, 404 (1857). Here, the destruction of the Rendlemans\u2019 property caused by the building of levees can be considered a pure injury to land. Additionally, the Rendlemans\u2019 complaint alleges that they have been dispossessed of their property. Because we find that the complaint does not seek solely economic damages, we have no need to consider State Farm\u2019s argument that the instant case does not come within one of the exceptions recognized under Moorman Manufacturing Co.\nIn the Illinois Supreme Court case In re Chicago Flood Litigation, 176 Ill. 2d 179, 680 N.E.2d 265 (1997), we find further support for our opinion that the Rendlemans\u2019 complaint seeks consequential damages. There, one issue raised was whether the Moorman doctrine applied to the plaintiffs\u2019 nuisance claims, brought as a result of the flooding of the tunnel beneath the Chicago River. The trial court distinguished between those cases which involved injury to persons or property and those which involved only economic loss, dismissing the latter under Moorman Manufacturing Co. The appellate court reversed the dismissals, holding that Moorman Manufacturing Co. did not apply to the tort of nuisance. The Illinois Supreme Court reversed, upholding the trial court\u2019s decision that the economic loss doctrine does apply to nuisance cases. The court then went on to point out that a recovery in tort was permissible for the consequential damages but not for the solely economic losses. Citing to its earlier decision in Schatz v. Abbott Laboratories, Inc., 51 Ill. 2d 143, 281 N.E.2d 323 (1972), the court stated, \u201cA plaintiff in a private nuisance action may recover all consequential damages flowing from the injury to the use and enjoyment of his or her person or property.\u201d In re Chicago Flood Litigation, 176 Ill. 2d at 207, 680 N.E.2d at 279. The Schatz case involved noxious odors emanating from a manufacturing plant. Nearby homeowners, as well as the owners of a nearby movie theatre, brought a suit alleging a nuisance. The homeowners claimed a loss in the use and enjoyment of their homes, and the theatre owners claimed a loss of profits. The trial court found in favor of the homeowners and the theatre owners. The appellate court reversed in part the homeowners\u2019 judgment and reversed outright the theatre owners\u2019 judgment. The Illinois Supreme Court reversed the appellate court and affirmed the trial court\u2019s judgments for consequential damages. Schatz, 51 Ill. 2d at 149, 281 N.E.2d at 326.\nConstruing the policy and complaint liberally and resolving all doubts in favor of the insured, we conclude that the allegations of the underlying complaint are potentially within the coverage under the policy.\nDamages\nWe find no merit in State Farm\u2019s contention that the underlying complaint does not allege property damage that comes within the policy\u2019s definition. The policy states: \u201c \u2018[Pjroperty damage\u2019 means physical damage to or destruction of tangible property, including loss of use of this property. Theft or conversion of property by any insured is not property damage.\u201d In count I of the underlying complaint there is no allegation of theft or conversion. Count I of the underlying complaint does allege that Lyons\u2019 actions interfere with the Rendlemans\u2019 \u201cactual possessory rights\u201d in their property. A more clear statement of a \u201closs of use\u201d could not be made without using the exact policy language. See In re Chicago Flood Litigation, 176 Ill. 2d at 207, 680 N.E.2d at 279.\nAdditionally, the prayer for damages seeks \u201cto remove that part of the levees that protrude [sic] onto Plaintiffs\u2019 Property and such other relief as this Court deems proper.\u201d Essentially, the Rendlemans are seeking to restore the property to its original condition, i.e., undo the damage done to the property from the construction of the levees. This appears to fit well within the policy\u2019s definition of property damage\u2014 \u201cphysical damage to or destruction of tangible property.\u201d\nExclusionary Clause\nState Farm next contends that any potential coverage based on the allegations of the underlying complaint is precluded by the policy clause excluding coverage for \u201cbodily injury or property damage which is either expected or intended by the insured.\u201d Our determination of the applicability of the exclusionary clause is controlled by the same liberal standard we apply to determine an insurer\u2019s duty to defend. Wilkin Insulation Co., 144 Ill. 2d at 78, 578 N.E.2d at 933.\nAdditionally, we essentially find no difference between the arguments found here and the earlier arguments that the allegations did not describe an occurrence because the levees are the natural and ordinary consequence of Lyons\u2019 alleged conduct. Therefore, we apply the same law with the same outcome \u2014 the allegations are potentially within the coverage. See Aetna Casualty & Surety Co. v. O\u2019Rourke Bros., Inc., 333 Ill. App. 3d 871, 879, 776 N.E.2d 588, 595-96 (2002).\nMoreover, we find that the three cases relied on by State Farm are inapposite. Bay State Insurance Co. v. Wilson, 96 Ill. 2d 487, 493, 451 N.E.2d 880, 882 (1983); West American Insurance Co. v. Vago, 197 Ill. App. 3d 131, 137, 553 N.E.2d 1181, 1185 (1990); Freyer, 89 Ill. App. 3d at 622, 411 N.E.2d at 1161. The courts in those cases excluded coverage under facts involving criminal or quasi-criminal conduct, finding that even though a specific injury had not been intended or expected, an injury should have been anticipated because of the conduct engaged in by the insured. Bay State Insurance Co., 96 Ill. 2d at 493, 451 N.E.2d at 882 (the supreme court found that the insured, who had intentionally shot the victim and was later convicted, had expected the injury because injuries were practically certain to result from the conduct); Vago, 197 Ill. App. 3d at 137, 553 N.E.2d at 1185 (the sexually assaulted victim\u2019s resultant emotional injuries should have been anticipated by the insured and consequently were expected injuries); Freyer, 89 Ill. App. 3d at 622, 411 N.E.2d at 1161 (injuries allegedly resulting from the violent assault and battery of a person and the intentional destruction of property with malice aforethought cannot be considered unexpected by the insured).\nWe believe that for the reasoning of these cases to be applicable to the case before us, there would need to be some logical connection between the intentional act and the resultant injury (i.e., an allegation that Lyons knew or should have known that his building a levee would result in a part of the levee encroaching onto the Rendlemans\u2019 property). The Rendlemans\u2019 complaint makes no such allegation. Applying the reasoning of these cases as State Farm suggests, without the necessary connection, would result in Lyons having intended or expected to build a part of the levee on the Rendlemans\u2019 property merely because he intended to build a levee. We find this to be an illogical result.\nEstoppel\nWe have found that State Farm had a duty to defend Lyons in the underlying action. We further find that State Farm breached that duty by failing to pursue the appropriate legal options, and we hold that State Farm is estopped from raising any policy defenses.\nWell-established Illinois law requires that an insurer that questions policy coverage must either (1) seek a declaratory judgment or (2) defend under a reservation of rights. Where a duty to defend exists but the insurer fails to take either course of action, its failure to defend is unjustified, and in a subsequent action by the insured against it, it is barred from asserting its defenses to coverage. Shell Oil Co. v. AC&S, Inc., 271 Ill. App. 3d 898, 902, 649 N.E.2d 946, 949 (1995). A recent Illinois Supreme Court case emphasized the importance of the estoppel doctrine in insurance coverage cases. \u201cIt [(the estoppel doctrine)] arose out of the recognition that an insurer\u2019s duty to defend under a liability insurance policy is so fundamental an obligation that a breach of that duty constitutes a repudiation of the contract.\u201d Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 151, 708 N.E.2d 1122, 1135 (1999). In declaring that an insurer cannot simply choose to refuse to defend, the court went on to state: \u201c[T]he insurer must either defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. If the insurer fails to take either of these actions, the estoppel doctrine applies.\u201d Ehlco Liquidating Trust, 186 Ill. 2d at 153, 708 N.E.2d at 1136. The doctrine bars the insurer even from raising those defenses that might have been successful had the insurer not breached its duty to defend. Ehlco Liquidating Trust, 186 Ill. 2d at 151-52, 708 N.E.2d at 1135. The courts have only recognized one exception to the estoppel doctrine, i.e., a serious conflict of interest, which does not apply to the case before us. Ehlco Liquidating Trust, 186 Ill. 2d at 152, 708 N.E.2d at 1135; Murphy v. Urso, 88 Ill. 2d 444, 451-52, 430 N.E.2d 1079, 1082-83 (1981).\nWe conclude that the estoppel doctrine applies to the case before us, barring State Farm from asserting any policy defenses.\nDuty to Indemnify\nFinally, State Farm contends that the trial court erred in entering a final judgment which included a duty to indemnify. State Farm argues that the court\u2019s finding that it had a duty to defend is not dispositive of whether it also had a duty to indemnify. We agree that a finding of a duty to indemnify was premature.\nBecause we found that the underlying cause of action presented a case of potential coverage, the general rule of estoppel was triggered. Having breached its duty to defend, State Farm is consequently estopped from raising policy defenses at subsequent proceedings involving the underlying cause of action. However, we stop short of ruling on a duty to indemnify, pending the outcome of the Rendlemans\u2019 lawsuit. While State Farm can no longer argue, due to estoppel, that the resulting loss or damage was not covered or was excluded, \u201ca 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.\u201d Outboard Marine Corp., 154 Ill. 2d at 127, 607 N.E.2d at 1221. A declaratory judgment action to determine indemnification is premature if brought before a determination of the insured\u2019s liability. Maryland Casualty Co. v. Chicago & North Western Transportation Co., 126 Ill. App. 3d 150, 156, 466 N.E.2d 1091, 1095-96 (1984).\nIII. CONCLUSION\nAccordingly, we affirm the trial court\u2019s ruling on State Farm\u2019s duty to defend Lyons under his homeowner\u2019s policy, and we reverse regarding State Farm\u2019s present duty to indemnify Lyons.\nAffirmed in pact and reversed in part.\nKiTEHN and DONOVAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE CHAPMAN" } ], "attorneys": [ "Stephen W Thomson, of Thomson Law Offices, EC., of Edwardsville, for appellant.", "Brad K. Bleyer, of Marion, for appellee." ], "corrections": "", "head_matter": "RONNIE L. LYONS, Plaintiff-Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant.\nFifth District\nNo. 5\u201402\u20140597\nOpinion filed May 27, 2004.\nRehearing denied June 25, 2004.\nStephen W Thomson, of Thomson Law Offices, EC., of Edwardsville, for appellant.\nBrad K. Bleyer, of Marion, for appellee." }, "file_name": "0404-01", "first_page_order": 422, "last_page_order": 433 }