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American Family Mutual Insurance Co. v. Savickas9/28/2000
Agenda 11-March 2000.
Michael Savickas stands convicted of the first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)) of Thomas S. Vinicky (Thomas). Elizabeth Vinicky, the administrator of Thomas's estate (Elizabeth), has sued Savickas for wrongful death and survival. Savickas tendered the defense of his suit to his insurer, American Family Mutual Insurance Company (American Family). American Family filed the instant declaratory judgment action to determine whether it must defend or indemnify Savickas. American Family contends that it should be excused from doing so because the policy did not apply to bodily injury "expected or intended by any insured." The circuit court of Cook County granted American Family summary judgment. Savickas and Elizabeth appealed, and the appellate court reversed, with one justice dissenting. 304 Ill. App. 3d 614. We granted leave to appeal (177 Ill. 2d R. 315(a)), and now reverse.
BACKGROUND
Savickas shot and killed Thomas outside the New Gold Coast Inn in March 1988. Elizabeth brought suit against Savickas in her capacity as the administrator of Thomas' estate, eventually filing the amended four-count complaint upon which American Family was granted summary judgment. Count I of the amended complaint, captioned "Intentional Tort/Murder/ Wrongful Death," brought a claim under the wrongful death act (Ill. Rev. Stat. 1987, ch. 70, par. 1 et seq.) for Thomas' childrens' loss of affection. Count II, captioned "Intentional Tort/Murder Survival Action," sought damages for Thomas' pain and suffering prior to his death. Count III, captioned "Negligence/Wrongful Death," was, like count I, a claim under the wrongful death act. However, this count alleged that Savickas had been negligent in shooting Thomas, in that he either negligently shot him, "negligently assessed a need for self defense" when he shot him, or both. Count IV, captioned "Negligence/Survival Action," sought damages for Thomas' pain and suffering prior to his death and contended that Savickas had been negligent in the same manner alleged in count III.
Savickas tendered his defense to his homeowner's insurer, American Family. American Family paid for Savickas' defense. However, American Family also filed the instant declaratory judgment action against Savickas and Elizabeth, seeking a determination that Savickas' acts were excluded from coverage and that as a result American Family owed him neither the duty to indemnify nor the duty to defend. Relying on language in its policy, American Family moved for summary judgment in the declaratory judgment action. The policy provides in relevant part that American Family would
"pay, up to our limit, all sums for which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy. We will defend any suit, even if the suit is groundless, false or fraudulent provided the suit resulted from bodily injury or property damage not excluded under this coverage." (Emphasis omitted.)
An "Exclusions" portion of the policy provided in part that the above coverage should not apply to bodily injury or property damage "which is expected or intended by any insured." American Family provided the court with a certified copy of Savickas' April 1990 conviction and a copy of the appellate court opinion affirming that conviction (People v. Savickas, 230 Ill. App. 3d 322 (1992)). American Family also attached excerpts from the transcript of Savickas' testimony at his criminal trial. In those excerpts Savickas admitted that the gun did not go off accidentally. He testified to the effect that he intentionally pointed the gun at the decedent and intentionally pulled the trig
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