NOTICE Decision filed 05/27/04. 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. 5-02-0597
RONNIE L. LYONS, Plaintiff-Appellee, v. STATE FARM FIRE AND Defendant-Appellant. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Williamson County. No. 02-MR-14 Honorable |
PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:
The plaintiff, Ronnie L. Lyons, filed a complaint for a declaratory judgment in thecircuit 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 indemnifyhim under a homeowner's policy against a neighbor's lawsuit claiming trespass, permanentinjunction, and replevin. The trial court found in Lyons' favor, ordering State Farm toprovide a defense in the underlying claim. State Farm appeals. We affirm in part andreverse in part.
On May 9, 2001, Tony and Deena Rendleman, who owned property that adjoinedproperty owned by Lyons, filed a lawsuit against Lyons in the circuit court of Perry County,cause No. 01-CH-11. The Rendlemans made the following allegations in their complaint:(1) trespass-that Lyons had built levees that protruded onto their property, (2) permanentinjunction-that when Lyons would harvest fish from the pond that he had constructed for acommercial fish operation, he would drain the pond by diverting water onto the Rendlemans'property, in violation of article II of the Illinois Drainage Code (70 ILCS 605/2-1 et seq.(West 2000)), and (3) replevin-that Lyons had wrongfully detained the Rendlemans' personalproperty (i.e., a brushcutter).
Lyons tendered his defense to his insurer State Farm under his homeowner's policy. State Farm refused to defend Lyons, raising policy defenses. In response, Lyons filed acomplaint for a declaratory judgment in Williamson County and sought coverage andindemnification under the policy. State Farm and Lyons each filed a motion for a judgmenton the pleadings. The trial court granted Lyons' motion, entering a judgment on thepleadings. State Farm appeals this final judgment, following the trial court's denial of itsmotion to reconsider.
A motion for a judgment on the pleadings is akin to a motion for a summaryjudgment, but it is limited to the pleadings. Employers Insurance of Wausau v. EhlcoLiquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999). We review ajudgment 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).
The issues before us are whether State Farm has a duty to defend and indemnifyLyons under its homeowner's policy against the complaint filed by the Rendlemans.
First, we review the well-settled law regarding the construction of insurance policiesas it relates to the rights and obligations of the parties. It is the general rule that the duty ofthe insurer is determined by the allegations of the underlying complaint. Maryland CasualtyCo. v. Peppers, 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28 (1976). A duty to defend arises if thecomplaint's 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); OutboardMarine 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 oneof 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'sallegations are low. Management Support Associates v. Union Indemnity Insurance Co. ofNew York, 129 Ill. App. 3d 1089, 1096, 473 N.E.2d 405, 411 (1984). In a court'sdetermination of the duty to defend, the underlying complaint is to be liberally construed infavor 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 anexclusionary 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 legaltheories, determine a duty to defend. Management Support Associates, 129 Ill. App. 3d at1097, 473 N.E.2d at 411. "An insurer may not justifiably refuse to defend an action againstits insured unless it is clear from the face of the underlying complaints that the allegationsfail to state facts which bring the case within, or potentially within, the policy's coverage." (Emphasis in original.) Wilkin Insulation Co., 144 Ill. 2d at 73, 578 N.E.2d at 930.
Keeping these principles in mind, we turn now to compare the allegations of theunderlying complaint with the relevant portions of the insurance policy.
The underlying complaint was brought in three counts: count I-trespass, count II-permanent injunction, and count III-replevin. While State Farm argues against coverage onall three counts, Lyons does not argue for coverage on count II or count III, conceding at oralargument that coverage does not apply for those counts. Because the duty to defend alawsuit arises even if only one of several theories of recovery is within the potential coverageof the policy, we therefore proceed to consider the potential for coverage on count I withoutthe necessity of considering State Farm's arguments regarding counts II and III. See WilkinInsulation Co., 144 Ill. 2d at 73-74, 578 N.E.2d at 930.
Count I includes the following allegations: "Defendant has trespassed on Plaintiffs'Property in that Defendant has constructed levees that protrude onto Plaintiffs' Property," and"Defendant's actions constitute a wrongful interference with Plaintiffs' actual possessoryrights in Plaintiffs' Property."
Lyons' liability policy provides coverage for "damages because of bodily injury orproperty damage to which this coverage applies, caused by an occurrence." It excludescoverage for property damage that "is either expected or intended by the insured." Thepolicy defines "occurrence" as "an accident, including exposure to conditions, which resultsin: a. bodily injury; or b. property damage." The policy also states as follows: " '[P]ropertydamage' means physical damage to or destruction of tangible property, including loss of useof this property. Theft or conversion of property by any insured is not property damage."
State Farm argues that the act of constructing levees was intentional and therefore wasnot an "occurrence" within the meaning of the policy, which defines "occurrence" as "anaccident." It further argues that the levees are the "natural and ordinary consequences" ofthe act of construction and therefore do not constitute "an accident." In support of thesearguments, State Farm cites to several cases that define an accident as " ' "an unforeseenoccurrence, usually of an untoward or disastrous character or an undesigned sudden orunexpected event of an inflictive or unfortunate character." ' " Tillerson, 334 Ill. App. 3d at409, 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))).
In determining what constitutes an accident, Illinois adheres to the rule of lawpromulgated by the United States Supreme Court more than a century ago in United StatesMutual Accident Ass'n v. Barry, 131 U.S. 100, 33 L. Ed. 60, 9 S. Ct. 755 (1889). In theBarry case three men jumped to the ground from a platform several feet high. The three menwere physicians who had just finished visiting a patient and were attempting to take ashortcut to their next destination. Two of the men landed safely; however, Dr. Barry landedawkwardly. He immediately became ill and died a few days later from a twisted duodenumcaused by his bad landing. His insurer raised a policy defense contending that Dr. Barry'sdeath was not accidental within the meaning of the policy. At the trial a jury found that theevent had occurred accidentally. The United States Supreme Court upheld the verdict,approving the following instructions with regard to finding an accident under the policy:
"The court properly instructed [the jurors] that the jumping off the platform was themeans by which the injury, if any was sustained, was caused; that the question waswhether there was anything accidental, unforseen, involuntary, unexpected, in the actof jumping, from the time the deceased left the platform until he alighted on theground; that the term 'accidental' was used in the policy in its ordinary, popular sense,as meaning 'happening by chance, unexpectedly taking place, not according to theusual course of things, or not as expected'; that if a result is such as follows fromordinary means, voluntarily employed, in a not unusual or unexpected way, it cannotbe called a result effected by accidental means; but that if, in the act which precedesthe injury, something unforeseen, unexpected, unusual, occurs which produces theinjury, then the injury has resulted through accidental means." Barry, 131 U.S. at121, 33 L. Ed. 60, 9 S. Ct. at 762.
The court reasoned that while Dr. Barry intended to jump, he believed and intended that hewould land safely from the jump; the fact that he did not land safely as expected constitutedthe accident. Barry, 131 U.S. at 121, 33 L. Ed. 60, 9 S. Ct. at 762.
The Illinois Supreme Court adopted the Barry interpretation of "accident" in Christv. Pacific Mutual Life Insurance Co., 312 Ill. 525, 144 N.E. 161 (1924). Some 60 years afterBarry, the Illinois Supreme Court summarized the rule promulgated in the Barry case, in thecase of Yates v. Bankers Life & Casualty Co., 415 Ill. 16, 111 N.E.2d 516 (1953):
"[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." Yates, 415 Ill.at 19, 111 N.E.2d at 517-18.
Here, we find that State Farm's application of the definition of an accident ismisunderstood. The focus of the inquiry in determining whether an occurrence is an accidentis whether the injury is expected or intended by the insured, not whether the acts wereperformed 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'RourkeBros., Inc., 333 Ill. App. 3d 871, 878, 776 N.E.2d 588, 595 (2002); American Family MutualInsurance Co. v. Enright, 334 Ill. App. 3d 1026, 1031, 781 N.E.2d 394, 398 (2002). Thereis no question that Lyons intended to build levees surrounding his pond. The questiondetermining policy coverage is whether he intended to build a part of the levees over theproperty line onto the Rendlemans' property. If Lyons did not intend to build a part of thelevees onto the Rendlemans' property, then the result can be said to be unintended orunexpected. If answered in the affirmative, then he intended the injury, i.e., the trespass, andcoverage would not apply. State Farm's corollary argument-that because the levees were thenatural and ordinary consequence of Lyons' conduct (the intentional act of construction),they do not constitute an accident-is equally unavailing. If the focus of that inquiry had beeninjury- or result-oriented, the question then becomes whether building a part of the leveesonto the Rendlemans' property is the "natural and ordinary consequence" of the act ofconstructing levees. We believe that this question can obviously be answered in thenegative.
Further, the extension of coverage from "accident" to "occurrence," as in this policy,
has generally been considered to broaden coverage. Freyer, 89 Ill. App. 3d at 619, 411N.E.2d at 1159 (citing 7A J. Appleman, Insurance Law and Practice