Insurance Law

Multi-vehicle accident, from tractor-trailer driving into a mini-bus, with claims of negligence in allowing trailer to be operated without proper brakes. Accident resulted in deaths of eight people and injuries to many others; total 12 underlying actions consolidated into one action. Insurer filed interpleader action to deposit the limits of Defendant truck driver's employer with circuit court clerk. Two defendants' liability stems directly from actions of defendant driver and his employer, thus both are "persons insured" under policy. Affidavit which contains legal conclusions and does not clearly state that affiant has personal knowledge of the policy or of other event at issue was properly stricken. Insurer cannot discharge its duty to defend by depositing policy limits with the court, as parties did not settle and judgment not entered in underlying cases, and policy limit was not "paid" to anyone. Trial court is not required to wait until underlying case concludes before awarding attorney fees to insured.

Insurer sold CGL policies with separate endorsements at additional premium to cover liability for home repair and remodeling Four underlying complaints, including one filed by Illinois Attorney General, alleged fraud, misrepresentation, deception, and abuse. Complaints failed to allege "occurrence" or property damage within purview of policies, and exclusions for expected or intended injury preclude coverage. Thus insuring agreement in endorsement is inapplicable; and no evidentiary materials such as affidavits were filed that create issues of material fact that would affect insurer's right to judgments on its complaints. Thus, court properly entered summary judgment in favor of insurer on all complaints.

(Court opinion filed 12/24/09 withdrawn.) Eleven-year old boy sustained eye injury at paintball facility. Suit was consolidated with declaratory judgment action as to reasonableness of insured's notice of occurrence. Trial court granted summary judgment for insurer and agent, and denied Plaintiff's motion for summary judgment. 11-month delay in notification to insurer of service of suit was not unreasonable as a matter of law, as insured facility owner lacked experience in insurance matters, and at time of incident a physician at the scene washed out child's eye, he seemed fine, and had no further contact with facility about injury. Questions of fact exist as to late notice of occurrence, thus summary judgment for plaintiff or for insurer improper.

Insurer refused to defend restaurant group owner for customer's suit against Oak Brook restaurant for food poisoning. CGL policy extended to 15 of owner's restaurants listed in the policy's schedule, but not the Oak Brook location. Allegations of complaint, compared with policy provisions, did not trigger insurer's duty to defend or indemnify. Location of injury determined whether insurer had duty to defend, and complaint unambiguously identified Oak Brook restaurant as location where Plaintiff sustained her injury, and that restaurant did not appear in policy at time of incident and was thus excluded from face of policy.

Underlying lawsuit was filed alleging assault, battery, and intentional infliction of emotional distress from two incidents occurring two years apart, where Defendant brandished steel pipe and what appeared to be end of pistol, and Plaintiff subdued and restrained him in response. Defendant tendered defense of suit to CGL insurers which had issued policies for the two time periods. Duty to defend insured is triggered by allegations of self-defense in the insured's counterclaim filed in response to underlying suit alleging the insured's intentional acts, where the policy contains exclusion for intentional acts and a self-defense exception to that exclusion.

Court considered validity of auto policy exclusion that precludes liability coverage when person driving the vehicle does not have a "reasonable belief" of being entitled to do so; trial courts had held coverage exclusion applicable to drivers without valid drivers license. Reasonable belief exclusion applies equally to named insured and anyone using the vehicle with the insured's permission; the average, ordinary reasonable person would understand that the exclusion applies to unlicensed drivers. Exclusion does not violate Illinois public policy. Auto insurers may limit their risk by excluding insureds and permissive users who lack a valid drivers license.

Original verified complaint alleged that injured truck driver did not give Defendant, who attempted to free driver from being pinned against truck but accidentally drove truck forward and into him, permission to drive the truck. Allegation of not giving permission was judicial admission binding on driver and on carrier of driver's employer as to its duty to defend, even though that allegation did not appear in amended complaint, as duty to defend is defined by allegations within four corners of complaint .

(Court opinion corrected 5/7/10). Insurance company insured moving company's two trucks. Moving company rented a truck from a rental company and was in collision in Illinois while en route from Illinois to Indiana, injuring a third party. Jurisdiction of ILCC is not limited solely to intrastate commerce, and extends to motor carriers of property. Cartage of household goods is within activities regulated by Transportation Act, thus moving company's policy with its insurer provides coverage. Rental company's policy provides primary coverage for public policy reasons, because rental company failed to offer moving company the choice of primary coverage; but moving company's insurer also provided primary coverage, thus two "excess" clauses cancel each other out, and loss is prorated between policies.

(Court opinion corrected 4/14/10.) Whenever vehicle liability coverage is increased above that provided under the previous policy, insurers must again offer uninsured motorist (UM) coverage equal to liability coverage, and must obtain signed election declining such equal coverage.

Court properly granted judgment on the pleadings for insurer; policy did not define "insured". “The insured seeking coverage”, within meaning of policy is the construction company named as an additional insured on two policies of its subcontractors, which is seeking coverage for the contribution claims. Because those claims are for bodily injuries to the company's employees allegedly suffered in furtherance of the company's projects, the insurer need not provide coverage for those claims, because of employer's liability exclusion in policies.