No. 3--04--0119
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2005
METROPOLITAN PROPERTY and ) Appeal from the Circuit Court
CASUALTY INSURANCE COMPANY, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 01--MR--208
)
JAMES M. PITTINGTON and )
PETE R. HARRISON, )
) Honorable Mark A. Vandeweile,
Defendants-Appellants. ) Judge, Presiding.
Modified Upon Rehearing
JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiff, Metropolitan Property and Casualty InsuranceCompany, issued a policy of insurance to defendant JamesPittington. On May 7, 2000, Pittington shot defendant PeteHarrison while both were at the Pittington residence. In aseparate case, Harrison's estate filed a negligence actionagainst Pittington seeking damages for bodily injury. Prior tothe filing of the bodily injury suit, Metropolitan filed thisdeclaratory judgment action seeking a declaration that the policyof insurance issued to Pittington would not indemnify him formonetary damages stemming from the shooting of Harrison. Thecircuit court of Rock Island County ultimately grantedMetropolitan's motion for summary judgment. Harrison appeals.
BACKGROUND
Following the shooting, Pittington was charged withattempted murder, aggravated battery with a firearm, and unlawfulpossession of a firearm without a Firearm Owner's IdentificationCard (FOID). During trial, an agreement between Pittington andthe State was reached wherein Pittington agreed to plead guiltyto reckless conduct in violation of section 12--5 of the CriminalCode of 1961 (720 ILCS 5/12--5 (West 2000)) and provide astatement that, based upon the evidence presented, heacknowledged that he would have been found guilty of the samecharge had the case proceeded to verdict. Pittington was alsofound guilty of unlawful possession of a firearm without a FOIDcard.
Metropolitan filed this declaratory judgment againstPittington and Harrison claiming that any damages which resultedfrom Pittington's actions were excluded from coverage. AfterPittington pled guilty to reckless conduct, Metropolitan filed amotion for summary judgment, which was denied by the trial court. Metropolitan then filed a motion for reconsideration, which wasalso denied by the trial court. Finally, Metropolitan filed a"renewed motion for reconsideration," which asked the trial courtto reverse its original ruling and grant Metropolitan's motionfor summary judgment. By order dated October 20, 2003, the trialcourt granted Metropolitan's renewed motion for reconsiderationand awarded Metropolitan summary judgment.
In its final order, the trial court stated, inter alia:
"Summary Judgment is appropriate if there is no
material issue of fact in dispute.
The Court has reviewed the transcript from the
criminal proceeding in 2000 CF 386. Counsel represent
that this is the same evidence that this Court would
hear in a civil trial.
The Court finds that there is no material issue
of fact. The Court further finds that the Metropolitan
Policy excludes coverage for this incident. Pittington's
loading and discharging a firearm was a criminal act.
The transcript further indicates that Pittington told
Capt. Chisholm that he intended to scare Harrison with
the gun and that it was loaded in case he needed it
later.
Pittington is the insured, he committed a criminal
act (reckless conduct) by loading and discharging the
shotgun. This is not a case where Pittington was
shooting at a river rat and Harrison walked around a
blind corner and was hit. Pittington was exiting the
same door Harrison was entering when the gun went off.
Pittington previously loaded the shotgun with
Harrison in mind. Pittington could have scared
Harrison without loading the gun. Pittington made the
statement to police that the gun was loaded in case
he needed it later. That indicates that Pittington
expected, anticipated or intended to shoot Harrison
at some point.
Plaintiff's policy excludes coverage for actions
by Mr. Pittington."
It is from this order that Pittington appeals.
ANALYSIS
The following issues were raised by the parties on appeal:(1) whether a question of material fact exists which wassufficient to preclude a summary judgment award to the plaintiff;(2) whether defendant's plea to reckless conduct has anycollateral effect on these proceedings; and (3) whether thePeppers doctrine requires that resolution of this case awaitfinal resolution of the underlying law suit.I. Question of Material Fact and Summary Judgment
In appeals from summary judgment orders, we conduct a denovo review. Outboard Marine Corp. v. Liberty Mutual InsuranceCo., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992). Summary judgment isappropriate when the pleadings, depositions, affidavits, andadmissions show that there are no genuine issues of material factand the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2000); Largosa v. Ford Motor Co., 303Ill. App. 3d 751, 708 N.E.2d 1219 (1999). In addressing thegranting of a motion for summary judgment, an appellate courtmust consider all facts revealed in the record and all groundsalleged by the parties in order to determine whether a genuineissue of material fact exists. Seefeldt v. Millikin NationalBank of Decatur, 154 Ill. App. 3d 715, 506 N.E.2d 1052 (1987). Summary judgment should be denied where a reasonable person coulddraw divergent inferences from undisputed facts. Outboard MarineCorp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607N.E.2d 1204, 1209 (1992). The construction of the language of aninsurance policy is a question of law properly decided on amotion for summary judgment, and as such, interpretation can bedetermined on review independent of the trial court's judgment. Dairyland Insurance Co. v. Linak, 208 Ill. App. 3d 892, 567N.E.2d 638 (1991).
If an insurance policy is clear and unambiguous, the wordsof the policy will be given their plain and ordinary meaning. United States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1,429 N.E.2d 1203 (1981). In determining whether there is anambiguity, the clause in question must be read in its factualcontext and not in isolation. Schnackenberg, 88 Ill. 2d at 5,429 N.E.2d at 1205.
The policy issued to Pittington from Metropolitan includesthe following exclusion:
"Coverage E - Personal Liability and Coverage F -
Medical Payments to Others do not apply to bodily
injury or property damage:
a. Which may reasonably be expected to result
from...criminal acts of an insured person, or which
are in fact expected, anticipated or intended by an
insured person."
The trial court found that based upon the "expected,anticipated or intended" clause of this exclusion, Metropolitanwas not obligated under the policy of insurance for any damageswhich Pittington may be legally liable to pay to Harrison. Defendant contends that the trial court's finding was error.
Initially, defendant maintains that there is a question ofmaterial fact that would preclude summary judgment as to whetherthe bodily injury to Harrison was in fact expected, anticipatedor intended by Pittington or merely the result of an accident. We agree.
After considering all of the facts revealed in the recordand all of the grounds alleged by the parties, we find that reasonable persons could draw divergent inferences from the factscontained within the record.
The parties agreed and the trial court took note of the factthat the parties anticipated that testimony in the case at barwould mirror that of Pittington's criminal trial. The trialcourt noted that its review of the criminal record indicated thatPittington expected, anticipated or intended to shoot Harrison atsome point. Undoubtedly, the trial court came to this opinionbased on the testimony of Deputy Randy Heisch, Deputy Mike Clary,and Captain Jeffery Chisholm. In fact, the trial courtidentified part of Captain Chisholm's testimony as a basis forits decision. Certainly, after reviewing those officers'testimony, one could form the reasonable opinion that Pittingtonintended to shoot Harrison.
However, it is also possible that after reviewing thetestimony of Charles Buttgen, Therese Murray Roof, Pete RayHarrison (the victim) and Deputy James Patterson, the divergentview that Pittington accidently shot Harrison may also bereasonable. Testimony at the criminal trial indicated thatHarrison told nurse Johnson, while receiving treatment, that theshooting was accidental. Theresa Roof, Harrison's sister,testified that she immediately went to her brother to renderfirst aid after the shooting and he stated, "It was an accident. Where is Mike?" Certainly, absent any testimony from Pittington,this testimony is sufficient to raise a genuine issue of materialfact regarding the nature of this shooting. As such, summaryjudgment is simply not appropriate.
Metropolitan stresses that since the parties stipulated thatthe evidence in a trial of the declaratory judgment action wouldbe the same as that which was produced in a criminal trial, thehearing on the motion for summary judgment was, in fact,converted to a trial on the merits. Metropolitan cites noauthority for this novel proposition. The trial court's order ofOctober 20, 2003, which ultimately granted Metropolitan's motionfor summary judgment indicates "[a]t the latest hearing on themotion to reconsider, all parties indicated that they did notanticipate the evidence that would be presented in this casewould be any different than presented in a criminal case." Metropolitan argues on appeal that Pittington stipulated that hewas guilty of the criminal offense of reckless conduct. Thisargument is simply not supported by the record. To the extentthat Pittington's counsel stipulated to anything in the face ofMetropolitan's summary judgment motion, it was only that therewould be no evidence other than that which had previously beenintroduced at the criminal trial. This is a far cry from astipulation to the facts selected by Metropolitan which supportits motion for summary judgment.
Metropolitan argues that somehow because the trial court,with the agreement of the parties, ruled on Metropolitan'ssummary judgment motion after reviewing the evidence contained inPittington's criminal trial, that the trial court's ruling on themotion for summary judgment was, in fact, a ruling on the meritsand, therefore, the correct standard of review for this court ismanifest weight of the evidence rather than de novo. This caseis before us on the trial court's ruling on a motion for summaryjudgment, not the trial court's ruling at the conclusion of abench trial. In a hearing on the merits, the trier of fact, inthis case, the trial judge, can appropriately resolve questionsof fact. In ruling on a motion for summary judgment, a trialcourt cannot resolve questions of material fact.
Metropolitan postured these issues in the trial court in theform of a motion for summary judgment. When the trial courtdenied the motion, Metropolitan could have asked that the case bemoved toward a hearing on the merits. Instead, it filed a motionto reconsider. When that motion was denied, it filed a "renewedmotion for reconsideration" which the trial court granted. Metropolitan cannot now complain of the de novo standard ofreview when it insisted this case be resolved below on summaryjudgment as opposed to a hearing on the merits. WhetherPittington's defense to a hearing on the merits would have beenany different, we have no way of knowing. We are confident thathe had the right to know whether, when the court took the matterunder advisement, it was ruling on a motion for summary judgmentor whether it was conducting a "paper trial." In addition to thefact that there is no case authority to support Metropolitan'sargument, we find that it would be totally unfair to let oneparty sandbag another by presenting a motion for summary judgmentto the court and then being allowed to argue that the favorableruling on the motion for summary judgment was actually a rulingon the merits, in which the trial court was allowed to resolvequestions of fact.
II. Collateral Effect of Guilty Plea
Metropolitan argues that, as a matter of law, Pittington'splea to reckless conduct (720 ILCS 5/12--5) (West 2000))collaterally estops Pittington from arguing that the injury toHarrison was not expected, anticipated, or intended. Wedisagree.
While criminal convictions can have an estoppel effect oncivil litigation such as this (see American Family MutualInsurance Co. v. Savickas, 193 Ill. 2d 378, 739 N.E.2d 445(2000); State Farm Fire & Casualty Co. v. Martin, 186 Ill. 2d367, 710 N.E.2d 1228 (1999)), three threshold requirements mustbe met before the doctrine is applied. Savickas, 193 Ill. 2d at387. The first requirement is that the issue decided in thecriminal adjudication must be identical with the one presented inthe declaratory judgment action. Savickas, 193 Ill. 2d at 387. Second, there must have been a final judgment on the merits inthe prior adjudication. Savickas, 193 Ill. 2d at 387. Third,the party against whom estoppel is asserted must have been aparty or in privity with a party to the prior adjudication. Savickas, 193 Ill. 2d at 387.
We agree with the trial court that Pittington's plea toreckless conduct has no estoppel effect on this declaratoryjudgment action. The court was correct when it stated, "The factthat Pittington pled guilty to reckless conduct is notdeterminative" to the outcome of this case.
The issue, given the wording of the exclusion inMetropolitan's policy, is whether Pittington "in fact expected,anticipated or intended" to cause bodily injury to Harrington. In pleading guilty to reckless conduct, Pittington admitted heperformed an act that caused the harm or endangered the safety ofHarrison with "conscious disregard" of a substantial andunjustifiable risk. See 720 ILCS 5/12--5, 4--6 (West 2000). Pittington's plea is in no way an admission that he expected,anticipated or intended to cause bodily harm to Harrington and,therefore, cannot meet the first part of the Savickas estoppeltest. Had Pittington pled or been found guilty of intentionallyharming Harrington (as was the case in Savickas and Martin), thenhis criminal conviction would satisfy the first prong of theSavickas estoppel test given the policy's exclusion for expected,anticipated, or intentional acts which cause bodily injury. However, Pittington did not plead guilty to an intentional act.
The Savickas court further noted that collateral estoppelwill not be summarily applied even when the three requirementsare satisfied. Savickas, 193 Ill. 2d at 387. The court stated,"Additionally, the party sought to be bound must actually havelitigated the issue in the first suit and a decision on the issuemust have been necessary to the judgment in the firstlitigation." Savickas, 193 Ill. 2d at 387. Defendants submitthat the State, by allowing Pittington to plead to recklessconduct in the middle of his attempted murder trial, renderedthat litigation a "side show," which would preclude any rulingsor admissions therein from being used collaterally. See Talaricov. Dunlap, 177 Ill. 2d 185, 196, 685 N.E.2d 325, 330 (1997). Weagree.
If one is charged with capital treason and allowed to pleadto driving with a loud muffler, any incentive to litigatevanishes; the plea will have no estoppel effect on collateralcivil litigation. Pittington was originally charged withattempted murder with a firearm, a Class X felony. 720 ILCS 5/8--4(c)(1) (West 2000)). While the normal sentencing range for aClass X felony is between 6 and 30 years (730 ILCS 5/5--8--1(a)(3) (West 2000)), the fact that he "personally discharged afirearm" during the incident mandated that "25 years or up to aterm of natural life shall be added to the term of imprisonmentimposed by the court." 720 ILCS 5/8--4(c)(1)(D) (West 2000). Pittington, if convicted, was looking at 31 years to natural lifein prison. The "practical realities" of Pittington's criminallitigation were such that when offered the chance to plead tomisdemeanor reckless conduct, he had little incentive to continuethe litigation in a "struggle to the finish." Talarico, 177 Ill.2d at 196. Even an innocent defendant would have to be of stoutheart to reject such an offer. For this reason, we agree withthe trial court that the plea is not determinative to the outcomeof this matter.
Metropolitan contends that this court ignores the objectiveprong of the exclusion at issue. Because we find that theconviction has no collateral effect, we hold that there remains aquestion of material fact relating to the "objective prong,"i.e., whether Pittington's conduct was criminal.
III. Peppers Doctrine
Defendant contends that under the Peppers doctrine, it wasimproper for the trial court to decide this issue prior to itsresolution in the underlying tort case. Maryland Casualty Co. v.Peppers, 64 Ill. 2d 187, 355 N.E.2d 24 (1976).
We disagree. We hold that this declaratory judgment actioncan proceed to resolution prior to the conclusion of theunderlying tort suit.
In Peppers, our supreme court stated:
"Under the principle of collateral estoppel the
finding in the declaratory judgment action that
the injury was intentionally inflicted could
possibly establish the allegations of the assault
count in the complaint and might preclude [the
victim's] right to recover under the other theories
alleged. [Citations.] In a case quite similar to
ours the appellate court held that the ruling and
judgment of the trial court in a declaratory judgment
action under such circumstances were 'premature' and
should be reversed. [Citation.] We agree with that
holding. The finding of the trial court in our case
that the injury was intentional was not proper in this
declaratory judgment action. This issue was one of
the ultimate facts upon which recovery is predicated
in the [underlying] personal injury action against
[the shooter] ***." Peppers, 64 Ill. 2d at 197.
Moreover, in a more recent case that also involved ashooting, declaratory judgment action, and underlying tort suit,our supreme court stated:
"We also uphold the rule that it is inappropriate
to resolve a declaratory judgment action in such a
manner as would bind the parties in the underlying
litigation on any issues therein." American Family
Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378,
387, 739 N.E.2d 445, 451 (2000).
In both Peppers and Savickas, the underlying tort suitsincluded negligence counts and intentional tort counts. Peppers,64 Ill. 2d at 193; Savickas, 193 Ill. 2d at 380-81. The recordon appeal in this case indicates that the underlying tort suit isbased solely on theories of negligence. Therefore, theresolution of this declaratory action would not decide any of the"ultimate facts" upon which recovery in the underlying tort suitis predicated. As such, we hold the Peppers doctrine does notprohibit this case from moving forward prior to the conclusion ofthe underlying tort suit.
CONCLUSION
In conclusion, we find that Pittington's criminal convictionhas no collateral effect under the circumstances, that there wasat least enough evidence that the shooting was accidental tocreate a question of material fact and therefore that summaryjudgment is inappropriate. Finally, we affirm the circuitcourt's decision to allow this declaratory judgment action toproceed to resolution prior to the conclusion of the underlyingtort suit.
Affirmed in part and reversed in part; cause remanded.
LYTTON and O'BRIEN, JJ., concur.