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Dobbs v. State Farm Fire & Casualty Co.
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0817 Rel
Case Date: 07/24/2002

 

Notice

Decision filed 07/24/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-00-0817

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


 

LARRY C. DOBBS, M.D., and  ) Appeal from the
SOUTHERN ILLINOIS ) Circuit Court of
OTOLARYNGOLOGY, INC.,  ) St. Clair County.
)
       Plaintiffs-Appellants and Cross-Appellees, )
)
v. ) No. 97-L-819A
)
STATE FARM FIRE AND CASUALTY )
COMPANY, ) Honorable
) Michael J. O'Malley,
       Defendant-Appellee and Cross-Appellant.  ) Judge, presiding.

 



JUSTICE KUEHN delivered the opinion of the court:

As complicated as this case may have been perceived from the briefs filed by bothsides, the case was simplified at oral argument by concessions. The only real issue iswhether the commercial umbrella policy issued by the defendant, State Farm Fire andCasualty Company (State Farm), to Southern Illinois Otolaryngology, Inc. (SIO), coveredthe plaintiffs, SIO and Dr. Larry C. Dobbs, for a suit based upon gender discrimination(1). Wefind that the policy does not provide for such coverage.

Gail Hite was employed by SIO. On November 27, 1989, Dr. Dobbs sent Gail Hitea letter by which he informed her that SIO was laying her off from work. Thereafter, onFebruary 1, 1990, Dr. Dobbs permanently terminated Gail Hite's employment. She filed acomplaint with the Equal Employment Opportunity Commission and ultimately received a"right to sue" letter. On May 22, 1990, she sued Dr. Dobbs and SIO. She sought backwages and reinstatement to her job, alleging that she was fired on the basis of genderdiscrimination. Gail Hite became pregnant during her SIO employment. She claimed thatDr. Dobbs was the child's father. She alleged that her employment termination wasperformed in a retaliatory way because of her pregnancy.

Apparently, about one year after the initial complaint was filed, the attorneys for theplaintiffs forwarded a copy of the summons and complaint to State Farm and requestedcoverage. The record does not contain a copy of this correspondence. State Farm's reply,dated April 22, 1991, confirms an April 15, 1991, telephone conversation at which timeState Farm denied coverage under a policy it had issued to SIO. The letter contains nospecific reference to the particular policy at issue, although a policy number is listed in theletter. The letter indicates that the complaint did not allege any bodily injury, propertydamage, or personal injury, as defined in the policy. State Farm's representative concludedthe letter by stating that if the complaint was amended in such a manner as to bring thecomplaint within the policy's coverage, State Farm would reconsider its denial.

The complaint was amended five times. The basis of the lawsuit never changed, andthe economic damages sought also remained the same. All versions of the complaint allegedthat Gail Hite's employment termination was based upon her gender. Ultimately, SIO andDr. Dobbs prevailed in this suit when Gail Hite voluntarily dismissed her suit on August 11,1994.

Sometime prior to April 14, 1997, an attorney representing SIO and Dr. Dobbscontacted State Farm seeking consideration of SIO's claim under the umbrella policy forreimbursement of the amount of money SIO expended in defense of Gail Hite's suit. OnApril 14, 1997, State Farm's representative wrote back to the attorney and denied coverage. In that letter, State Farm contends that it had previously denied coverage under the umbrellapolicy by letter dated April 22, 1991. We only find one 1991-dated letter in the record, butit bears a different policy number than the letter dated April 14, 1997. So, either there weretwo letters in 1991 (with only one of them contained in the record), or the State Farmrepresentative is incorrect. On April 14, 1997, State Farm denied coverage under theumbrella policy.

Thereafter, on September 15, 1997, SIO and Dr. Dobbs brought this suit againstState Farm. They seek $89,881.65 in damages for the costs expended in defense of GailHite's suit and monetary penalties for a vexatious refusal to defend SIO in that suit.

As the case proceeded, the parties filed numerous discovery and potentiallydispositive motions. On April 18, 2000, the trial court denied State Farm's motion for asummary judgment on the issue of its duty to defend the plaintiffs in Gail Hite's suit. At thesame time, the trial court granted the plaintiffs' motion on that issue. On August 28, 2000,the trial court granted the plaintiffs' motion for relief pursuant to section 2-701(c) of theCode of Civil Procedure (735 ILCS 5/2-701(c) (West 1998)) and awarded them $89,881.65in damages. On that same date, the trial court denied the plaintiffs' motion for a summaryjudgment on the vexatious-delay claim. On September 6, 2000, the trial court partiallygranted the plaintiffs' motion to compel the production of State Farm's file relative to thisclaim. On December 7, 2000, the trial court denied the plaintiffs' motion seeking a penalty,attorney fees, and prejudgment interest.

SIO and Dr. Dobbs appeal from the order denying them a summary judgment on theissue of the vexatious-delay claim, from the discovery order, and from the order denying thepenalty, fees, and interest. State Farm cross-appeals from the trial court's order finding thatit had a duty to defend the plaintiffs.

Because we find the issue of State Farm's duty to defend to be dispositive of this case,we do not reach the other issues.

In determining the appropriateness of a summary judgment, the trial court strictlyconstrues all evidence in the record against the movant and liberally in favor of theopponent. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). The courtmust consider all pleadings, depositions, admissions, and affidavits on file to decide if thereis any issue of material fact. Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72, 587N.E.2d 494, 497 (1992). On appeal, courts review summary judgment orders de novo. Myers, 225 Ill. App. 3d at 72, 587 N.E.2d at 497.

The commercial umbrella policy issued by State Farm to the plaintiffs providedcoverage for damages that the insured became legally obligated to pay because of personalinjury, property damage, or advertising injury as the result of an occurrence. Genderdiscrimination is the type of claim that would typically fall under the "personal injury"category. The policy defines "personal injury" to include racial or religious discrimination. The definition does not include gender discrimination. Even if this exclusionary languagewas somehow inapplicable, this particular State Farm policy contained a fire endorsementthat very specifically deleted certain personal-injury coverages. In relevant portions, thatendorsement provided:

"[T]his policy does not apply to liability arising out of the following:

***

(4) Discrimination, humiliation[,] and mental anguish."

Elsewhere in the policy, there was a sexual-molestation endorsement that provided:

"[State Farm] will indemnify the Insured for ultimate net loss *** which the Insuredshall become legally obligated to pay as damages because of injury to any personarising out of any actual, alleged[,] or threatened act of sexual molestation or sexualmisconduct which occurs during the term of this coverage."

Although the plaintiffs did not contend in their briefs that the policy language isambiguous, they did so at oral argument. The plaintiffs argue that the personal-injuryexclusion for discrimination liability conflicts with the sexual-molestation endorsement. They claim that this conflict naturally results in an ambiguity that must be construed againstState Farm. In that setting, the discrimination exclusion would not apply, and the plaintiffs'claim would be covered pursuant to the sexual-molestation/sexual-misconduct provision. The plaintiffs do not claim that coverage exists as a result of sexual molestation. Theplaintiffs believe that the term "sexual misconduct" encompasses everything but rapes,fondlings, and molestations. The plaintiffs argue that because pregnancy is uniquely sexual,both in terms of the act of conception and in the human gender necessary for pregnancy,pregnancy and gender discrimination could equate to sexual misconduct. The plaintiffs citeno authority for this argument.

Even if we were to agree with the plaintiffs that gender discrimination is included inwhat State Farm intended by the term "sexual misconduct," the sexual-misconductendorsement of the policy is further limited by a separate exclusionary clause whichindicates that such insurance does not apply to "any person who personally participated inany actual, alleged, or threatened act of *** sexual misconduct." This exclusion clearlyeliminates any coverage for sexual misconduct committed by SIO and its employee Dr.Dobbs. Who else but SIO, by Dr. Dobbs, terminated Gail Hite's employ?

We do not need to determine that issue, however, because we conclude that genderdiscrimination is not the same as sexual misconduct. The plaintiffs' interpretation requiresa contortion of our language. Humans are divided into two sexes. Because a female is atype of human sex, the plaintiffs argue that discrimination upon that basis is somehow sexualin nature. In our language, the connotation of the word "sexual," when used as an adjectiveto the word "misconduct," is different than when that same word is used as an adjective tothe word "discrimination." "Sexual" as in "sexual misconduct" refers to prurient conductof some nature. "Sexual" as in "sexual discrimination" refers to a human's gender.

We will not strain to find an ambiguity where none exists. Travelers Insurance Co.v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 293, 757 N.E.2d 481, 491 (2001) (relying onMcKinney v. Allstate Insurance Co., 188 Ill. 2d 493, 497, 722 N.E.2d 1125, 1127 (1999)).We conclude that the sexual-misconduct/sexual-molestation endorsement is not in conflictwith the fire-endorsement personal-injury exclusions.

The fire-endorsement personal-injury exclusion clearly, and unambiguously, excludescoverage for discrimination. Reviewing every version of Gail Hite's complaint, we concludethat she never varied her allegations from gender discrimination. Furthermore, she soughtonly economic damages as a result of her alleged gender discrimination. Accordingly,coverage for Gail Hite's claim was clearly excluded under the commercial umbrella policy.

As a matter of law, we find that State Farm did not have a duty to defend theplaintiffs in Gail Hite's gender discrimination suit.

For the foregoing reasons, we reverse the judgment of the circuit court of St. ClairCounty, and pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we entera judgment in favor of State Farm.

Reversed; judgment entered.

CHAPMAN, Melissa, and GOLDENHERSH, JJ., concur.

 

 

NO. 5-00-0817

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


 

LARRY C. DOBBS, M.D., and  ) Appeal from the
SOUTHERN ILLINOIS ) Circuit Court of
OTOLARYNGOLOGY, INC.,  ) St. Clair County.
)
       Plaintiffs-Appellants and Cross-Appellees, )
)
v. ) No. 97-L-819A
)
STATE FARM FIRE AND CASUALTY )
COMPANY, ) Honorable
) Michael J. O'Malley,
       Defendant-Appellee and Cross-Appellant.  ) Judge, presiding.

 



Opinion Filed: July 24, 2002

Justices: Honorable Clyde L. Kuehn, J. 

Honorable Melissa A. Chapman, J., and

Honorable Richard P. Goldenhersh, J.,

Concur


 Attorney George R. Ripplinger, George Ripplinger & Associates, 2215 West Main Street,

for Belleville, IL 62226-6692

Appellants


Attorney Stephen W. Thomson, Thomson Law Offices, P.C., P.O. Box 538, Edwardsville,

for IL 62025

Appellee


1. We recognize that the word "sex" is more proper for use in reference to a person'sbiological characteristics and the word "gender" more properly connotes social and culturalcharacteristics of males and females. However, we think our decision will be easier tofollow and to understand if we use the word "gender," which is commonly thought to besynonymous with the word "sex," when we refer to discrimination based upon a person'sbiological characteristics.

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