{ "id": 3600336, "name": "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. DAVID DIAL et al., Defendants-Appellees", "name_abbreviation": "Pekin Insurance v. Dial", "decision_date": "2004-12-16", "docket_number": "No. 5\u201403\u20140646", "first_page": "516", "last_page": "523", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 516" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349543 ], "year": 1999, "pin_cites": [ { "page": "807", "parenthetical": "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 policy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0800-01" ] }, { "cite": "201 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592618 ], "year": 1990, "pin_cites": [ { "page": "929", "parenthetical": "the insurer had no duty to defend or indemnify the insured for allegedly sexually assaulting four minors, because that activity was intentional as a matter of law and therefore excluded under the insurance policy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0921-01" ] }, { "cite": "96 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114017 ], "year": 1983, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0487-01" ] }, { "cite": "346 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833270 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "122" }, { "page": "119-20" }, { "page": "119-20" }, { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0113-01" ] }, { "cite": "89 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5539340 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "619" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0617-01" ] }, { "cite": "268 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381913 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "506" }, { "page": "507", "parenthetical": "even though a sexual offender had diminished capacity and could not form the intent to harm the children, his intent to harm was inferred as a matter of law and coverage of his sexual misconduct was precluded under the homeowner's policy" }, { "page": "511", "parenthetical": "the intent of the parties to the insurance contract was not to provide coverage for unintended bad consequences resulting from intentional sexual acts" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0501-01" ] }, { "cite": "84 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046540 ], "year": 1981, "pin_cites": [ { "page": "371", "parenthetical": "\"occurrence\" definition and exclusion provisions are not conflicting merely because they tend to overlap" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0365-01" ] }, { "cite": "186 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243901 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "374" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0367-01" ] }, { "cite": "129 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490015 ], "year": 1984, "pin_cites": [ { "page": "1097" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1089-01" ] }, { "cite": "298 Ill. App. 3d 1092", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073574 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "1094" }, { "page": "1094", "parenthetical": "where the underlying complaint alleges facts that, if true, would not be covered under the policy, the insurer has no duty to defend" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/1092-01" ] }, { "cite": "197 Ill. App. 3d 131", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2480299 ], "weight": 9, "year": 1990, "pin_cites": [ { "page": "136" }, { "page": "136" }, { "page": "133" }, { "page": "134" }, { "page": "137" }, { "page": "137" }, { "page": "137" }, { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0131-01" ] }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "390-91" }, { "page": "391" }, { "page": "390" }, { "page": "391" }, { "page": "391" }, { "page": "391" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] } ], "analysis": { "cardinality": 635, "char_count": 15022, "ocr_confidence": 0.686, "pagerank": { "raw": 1.49575837045063e-07, "percentile": 0.6638499001293126 }, "sha256": "7c3120de578bfa0c03b081e118a55c57d42d58fdfacdf2e41af27d2c23a5355e", "simhash": "1:abb507507647d474", "word_count": 2457 }, "last_updated": "2023-07-14T21:57:27.413698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. DAVID DIAL et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nCynthia Cain filed a sexual assault action against Dial Real Estate and Investments and David Dial (Dial), and Dial tendered the defense of Cain\u2019s action to his insurer, Pekin Insurance Company (Pekin). Pekin filed this action seeking a declaration that it had no duty to defend Dial in the Cain action. The trial court found that Pekin had a duty to defend Dial and that Pekin breached its duty to defend.\nOn appeal, Pekin argues that the trial court erred in finding that Cain\u2019s sexual assault allegations were covered by Pekin\u2019s insurance policy.\nWe reverse and enter a declaratory judgment for Pekin.\nFACTS\nPekin issued a commercial general liability insurance policy, with an effective policy period from January 31, 2000, to January 31, 2001, to Dial as the insured \u201cwith respect to the conduct of [the] business.\u201d The policy provided:\n\u201ca. We will pay those sums that the insured becomes legally obligated to pay as damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 to which this insurance applies. We will have the right and duty to defend any \u2018suit\u2019 seeking those damages. *** b. This insurance applies to \u2018bodily injury\u2019 and \u2018property damage\u2019 only if:\n(1) The \u2018bodily injury\u2019 or \u2018property damage\u2019 is caused by an \u2018occurrence\u2019 that takes place in the \u2018coverage territory\u2019 ***.\u201d\nThe policy defined the term \u201cbodily injury\u201d as \u201cbodily injury, sickness[,] or disease sustained by a person, including death resulting from any of these at any time,\u201d and defined the term \u201coccurrence\u201d as \u201can accident, including continuous or repeated exposure to substantially the same general harmful conditions.\u201d\nThe policy excluded the following from coverage:\n\u201ca. Expected or Intended Injury\n\u2018Bodily injury\u2019 or \u2018property damage\u2019 expected or intended from the standpoint of the insured.\u201d\nOn October 12, 2001, Cain filed her third amended complaint, alleging, in count I, that between May 20, 2000, and June 26, 2000, Dial negligently touched, fondled, and exposed himself to her with the misapprehension of her desires and wishes. In count II, Cain alleged that Dial repeatedly, willfully, and without provocation touched, fondled, and exposed himself to her. Cain alleged that as a result of Dial\u2019s conduct, she suffered an upset stomach, headaches, and a loss of a normal life.\nDial tendered the defense of Cain\u2019s action to Pekin, Pekin refused Dial\u2019s tender, and on June 20, 2001, Pekin filed its declaratory judgment action, seeking a declaration that it had no duty to defend Dial because Dial\u2019s alleged conduct was intentional, because Dial\u2019s alleged conduct did not arise out of or within the course of his employment, and because Cain did not seek damages for \u201cbodily injury\u201d as contemplated by the insurance policy.\nOn January 28, 2002, Dial assigned to Cain any rights he had against Pekin. On May 3, 2002, pursuant to the terms of Dial and Cain\u2019s joint stipulation, the trial court entered an amended judgment in favor of Cain on count I of her third amended complaint, awarded Cain $300,000, and entered a judgment in favor of Dial on count II.\nOn October 9, 2002, Cain filed a counterclaim against Pekin alleging that Pekin breached its duty of good faith in failing to defend Dial against her action. On November 18, 2002, Pekin filed a motion for a judgment on the pleadings. On December 13, 2002, Cain filed a motion for summary judgment, requesting that the court order Pekin to pay the judgment rendered in her tort action against Dial.\nOn June 9, 2003, the trial court heard arguments on the motions. On October 8, 2003, the trial court found that Cain\u2019s complaint pled a cause of action that was potentially covered by the insurance policy and that Pekin breached its duty to defend Dial. The court denied Pekin\u2019s motion for a judgment on the pleadings and granted Cain\u2019s motion for a summary judgment. On October 16, 2003, Pekin filed its timely notice of appeal.\nANALYSIS\nAlthough a summary judgment is a drastic means of disposing of litigation, it is appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390-91 (1993). \u201cThe construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court which are appropriate subjects for disposition by way of summary judgment. [Citations.]\u201d Crum & Forster Managers Corp., 156 Ill. 2d at 391. We review de novo the trial court\u2019s decision to enter a summary judgment. Crum & Forster Managers Corp., 156 Ill. 2d at 390.\nWhen construing an insurance policy, the court\u2019s primary function is to ascertain and enforce the parties\u2019 intentions as expressed in the agreement. Crum & Forster Managers Corp., 156 Ill. 2d at 391. The court must construe the policy as a whole, considering the type of insurance for which the parties contracted, the risks undertaken and purchased, the subject matter insured, and the purposes of the contract. Crum & Forster Managers Corp., 156 Ill. 2d at 391. If the policy\u2019s terms are plain and unambiguous, the court affords them their plain, ordinary meaning and applies them as written. Crum & Forster Managers Corp., 156 Ill. 2d at 391.\nTo determine whether an insurer has a duty to defend its insured in a lawsuit, a court should generally apply an \u201ceight corners rule\u201d \u2014 that is, the court should compare the four corners of the underlying tort complaint with the four corners of the insurance policy and determine whether the facts alleged in the underlying complaint fall within, or potentially within, the insurance policy\u2019s coverage. Crum & Forster Managers Corp., 156 Ill. 2d at 393; West American Insurance Co. v. Vago, 197 Ill. App. 3d 131, 136 (1990). Where the underlying complaint alleges facts that, if true, would not be covered under the policy, the insurer has no duty to defend. American Family Mutual Insurance Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1094 (1998). The factual allegations of the complaint, rather than the legal theory under which the action is brought, determine whether there is a duty to defend. Management Support Associates v. Union Indemnity Insurance Co. of New York, 129 Ill. App. 3d 1089, 1097 (1984). The allegations of the complaint must be construed liberally, and any doubts must be resolved in favor of the insured. Vago, 197 Ill. App. 3d at 136.\n\u201c[W]hen a complaint against the insured alleges facts potentially within the scope of the policy coverage, an insurer taking the position that the complaint is not covered by its policy must defend the suit under a reservation of rights or seek a declaratory judgment.\u201d (Emphasis in original.) State Farm Fire & Casualty Co. v. Martin, 186 Ill. 2d 367, 374 (1999). \u201cAn insurer will not be estopped from denying coverage merely because the underlying case proceeds to judgment before the declaratory judgment action is resolved.\u201d Martin, 186 Ill. 2d at 374.\nIn the present case, the policy provided coverage for bodily injury caused by an \u201coccurrence,\u201d and the policy defined \u201coccurrence\u201d as \u201can accident, including continuous or repeated exposure to substantially the same general harmful conditions.\u201d The policy further excluded coverage for bodily injury \u201cexpected or intended from the standpoint of the insured.\u201d To determine coverage, we construe the definition of \u201coccurrence\u201d together with the policy\u2019s specific exclusion for expected or intended injury. See Thornton v. Illinois Founders Insurance Co., 84 Ill. 2d 365, 371 (1981) (\u201coccurrence\u201d definition and exclusion provisions are not conflicting merely because they tend to overlap).\n\u201c[A]n occurrence which is defined as an accident involves the consideration of whether the injury was expected or intended from the standpoint of the insured.\u201d State Farm Fire & Casualty Co. v. Watters, 268 Ill. App. 3d 501, 506 (1994). In Aetna Casualty & Surety Co. v. Freyer, the reviewing court discussed the term \u201coccurrence,\u201d which was defined as an accident in the policy issued in that case, as follows:\n\u201cAn accident has been defined as an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character. The natural and ordinary consequences of an act do not constitute an accident. [Citation.] An injury caused by an assault and battery normally is not considered to be accidental [citation], even if the specific injury was not intended. [Citation.]\u201d Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619 (1980).\nWhen construing policy exclusions for bodily injury that is expected or intended by the insured, courts have held that the injury is \u201cexpected\u201d where the damages are \u201c \u2018of such a nature that they should have been reasonably anticipated (expected) by the insured.\u2019 \u201d Westfield National Insurance Co. v. Continental Community Bank & Trust Co., 346 Ill. App. 3d 113, 122 (2003), quoting Freyer, 89 Ill. App. 3d at 620. If the insured was consciously aware that the injuries were practically certain to be caused by his conduct, the injuries are considered \u201cexpected\u201d from the standpoint of the insured and are excluded from coverage under the policy. Bay State Insurance Co. v. Wilson, 96 Ill. 2d 487, 494 (1983).\nAn insurance company is under no duty to defend or indemnify an insured who sexually abuses a minor, because the nature of the conduct itself establishes as a matter of law that the insured expected or intended to injure the victim. Westfield National Insurance Co., 346 Ill. App. 3d at 119-20. Coverage is not triggered because the insured\u2019s child sexual abuse does not fall within the definition of \u201coccurrence\u201d and because the abuse is excluded as an \u201cexpected or intended\u201d act under the policy. Westfield National Insurance Co., 346 Ill. App. 3d at 119-20; see also Watters, 268 Ill. App. 3d at 507 (even though a sexual offender had diminished capacity and could not form the intent to harm the children, his intent to harm was inferred as a matter of law and coverage of his sexual misconduct was precluded under the homeowner\u2019s policy); Scudder v. Hanover Insurance Co., 201 Ill. App. 3d 921, 929 (1990) (the insurer had no duty to defend or indemnify the insured for allegedly sexually assaulting four minors, because that activity was intentional as a matter of law and therefore excluded under the insurance policy).\nIn Vago, a country club waitress filed the underlying tort complaint, alleging that, while she was working, the insured grabbed her from behind, locked his arms around her waist, prevented her from escaping, and thrust his pelvis against her buttock several times while he had an erection. Vago, 197 Ill. App. 3d at 133. Two insurance policies issued to the insured excluded coverage for bodily or personal injury \u201c \u2018which is expected or intended by the insured.\u2019 \u201d Vago, 197 Ill. App. 3d at 134. The court held that, even though the underlying complaint was couched in terms of negligence, the insurer had no duty to defend or indemnify the insured because the complaint alleged a course of conduct that was clearly intentional, and not merely negligent or accidental, because the insured would have been consciously aware that he was practically certain to cause emotional injuries to the waitress. Vago, 197 Ill. App. 3d at 137. The court concluded that the insured should have reasonably anticipated the waitress\u2019s injuries and that, therefore, the injuries were \u201cexpected\u201d and not covered because of the exclusionary clauses in the two policies. Vago, 197 Ill. App. 3d at 137; see also Hartford Insurance Co. of Illinois v. Kelly, 309 Ill. App. 3d 800, 807 (1999) (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 policy).\nIn the present case, Cain alleged that Dial fondled and touched her and exposed himself to her with the misapprehension of her desires and wishes. Similar to Vago, even though count I of Cain\u2019s complaint was couched in terms of negligence, the complaint alleged a course of conduct that was clearly intentional and not merely negligent or accidental. See Vago, 197 Ill. App. 3d at 137. If Dial engaged in the conduct alleged in Cain\u2019s complaint, he would have been consciously aware that he was practically certain to cause emotional injuries to Cain. See Vago, 197 Ill. App. 3d at 137. Cain\u2019s injuries were a natural and probable result of Dial\u2019s alleged conduct, whether or not he anticipated the precise injury Cain would suffer. See Westfield National Insurance Co., 346 Ill. App. 3d at 122 (the insurer had no duty to defend an aunt for her participatory conduct resulting in her husband\u2019s child sexual abuse because the aunt should have anticipated or \u201cexpected\u201d the minor\u2019s injuries, which were a natural and probable result of her enabling acts, regardless of whether she could anticipate their precise injury). Similarly, Dial should have reasonably anticipated Cain\u2019s injuries, and therefore, Cain\u2019s injuries were \u201cexpected\u201d and not covered under the policy. See Vago, 197 Ill. App. 3d at 137; see also Watters, 268 Ill. App. 3d at 511 (the intent of the parties to the insurance contract was not to provide coverage for unintended bad consequences resulting from intentional sexual acts). Cain\u2019s allegations of negligence were a transparent attempt to trigger insurance coverage. See Watters, 268 Ill. App. 3d at 510.\nCain failed to allege facts to bring her cause within or potentially within the coverage of the policy. See Chiczewski, 298 Ill. App. 3d at 1094 (where the underlying complaint alleges facts that, if true, would not be covered under the policy, the insurer has no duty to defend). Because the allegations in Cain\u2019s tort complaint were clearly excluded from coverage under the policy, Pekin had no duty to defend Dial. We therefore reverse the trial court\u2019s decision and enter a declaratory judgment that Pekin had no duty to defend Dial with respect to Cain\u2019s tort litigation.\nBased on our conclusion, we reject Cain\u2019s argument that Pekin had a duty to defend Dial because it failed to include a specific exclusion for sexual misconduct, and we need not address Cain\u2019s argument that Pekin is estopped from asserting contractual defenses because it breached its duty to defend.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Marion County is reversed, and we enter a declaratory judgment for Pekin.\nReversed; judgment entered.\nWELCH and CHAPMAN, JJ., concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "Robert Marc Chemers, of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.", "Christopher B. Daniels, of Daniels Law Office, of Centraba, for appellee Cynthia Cain." ], "corrections": "", "head_matter": "PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. DAVID DIAL et al., Defendants-Appellees.\nFifth District\nNo. 5\u201403\u20140646\nOpinion filed December 16, 2004.\nMotion to publish granted January 20, 2005.\nRobert Marc Chemers, of Pretzel & Stouffer, Chtrd., of Chicago, for appellant.\nChristopher B. Daniels, of Daniels Law Office, of Centraba, for appellee Cynthia Cain." }, "file_name": "0516-01", "first_page_order": 534, "last_page_order": 541 }