 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Westfield National Insurance Co. v. Continental Community Bank and Trust Co.12/23/2003
defense to Westfield under her homeowner's policies in effect at the relevant times. In response, Westfield filed this declaratory judgment action claiming that it owed no duty to defend or indemnify the aunt because, inter alia, the underlying complaint alleged deliberate or intentional conduct on the part of the aunt, which enabled Valdez to molest the minors, and was therefore barred under the "expected or intended" exclusion of the Westfield policies. At the hearing on Westfield's motion for summary judgment, the minors sought leave to depose the aunt; the trial court denied the motion. Following a hearing, the trial court granted summary judgment in favor of Westfield, ruling that Westfield had no duty to defend or indemnify the aunt. The minors timely appeal.
The minors contend that the trial court erred when it granted summary judgment in favor of Westfield and argue that the applicable provisions of insurance did not preclude coverage to the aunt. The construction of an insurance policy and a determination of the rights and obligations arising under the policy are questions of law for the court, and summary judgment is an appropriate proceeding for resolving these questions. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). A trial court will enter summary judgment if the pleadings, depositions, admissions, and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Jones v. Chicago HMO Ltd. of Illinois , 191 Ill. 2d 278, 291 (2000). We apply a de novo standard of review to the trial court's decision to grant summary judgment. Jones, 191 Ill. 2d at 291.
Whether an insurer has a duty to defend its insured depends on whether the underlying complaint alleges facts within or potentially within coverage of the insurance policy. National Union Fire Insurance Co. of Pittsburgh v. R. Olson Construction Contractors, Inc., 329 Ill. App. 3d 228, 234 (2002). Where the underlying complaint alleges facts which, if true, would exempt the insured from coverage under the policy, the insurer has no duty to defend. American Family Mutual Insurance Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1094 (1998), citing State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993). In construing the insurance policy, we must construe the policy as a whole, taking into account the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured, and the purposes of the entire contract. Crum & Forster Managers Corp., 156 Ill. 2d at 391. If the words in the policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Crum & Forster Managers Corp., 156 Ill. 2d at 391.
Each policy in force during the relevant time period provided the following coverage:
"COVERAGE E - Personal Liability
If a claim is made or a suit is brought against an Insured for damages because of bodily injury, caused by an occurrence to which this coverage applies, we will:
1. pay up to our limit of liability for the damages for which the Insured is legally liable; and
2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent." (Emphasis added.)
Each policy also excluded from coverage bodily injury or property damage "which is expected or intended by the Insured." The policies also stated that personal injury insurance did not apply to "injury caused by a violation of a penal law or ordinance committed by or with the knowled
Page 1 2 3 4 5 6 7 8 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|