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Mcallister v. Hawkeye-security Ins. Co.

APRIL 5, 1966.

COY MCALLISTER, D/B/A COY MCALLISTER EXCAVATING CO., PLAINTIFF-APPELLEE,

v.

HAWKEYE-SECURITY INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 17th Judicial Circuit, Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The issue involved in this appeal is the construction of the liability insurance policy issued by defendant-appellant to plaintiff-appellee with reference to the meaning of the word "accident" as used therein. The word is not defined in the policy.

The pertinent facts of the case are undisputed. The plaintiff is in the excavating business. Grover Porter, the highway commissioner for Roscoe Township, engaged him to carry out earth moving activities incident to the repair of Pleasant Valley Road. Plaintiff was instructed to commence such work at the intersection of Pleasant Valley and Manchester Roads, permission having been obtained from the abutting property owner for the plaintiff to enter upon said property at this point.

In the course of his operations, the plaintiff mistakenly started the road work on the premises of Addison B. Foss, located at the intersection of Pleasant Valley and Prairie Hill Roads — a quarter of a mile south of where he had been instructed to work. Plaintiff performed certain earth moving activities there, believing that he was on the premises where the highway commissioner had directed him to work.

Foss thereupon filed suit against Porter, the highway commissioner, in Cause No. 80038, seeking damages for the trespass upon his land. Porter filed a third-party complaint in said action against the plaintiff herein, seeking reimbursement for any damages which he might be required to pay to Foss, contending that plaintiff was primarily responsible for the damage.

Prior to the date of this occurrence, the defendant issued its comprehensive liability policy to plaintiff, which was in effect at the time, whereby it agreed to pay on behalf of the insured, "all sums which the insured shall be legally obliged to pay as damages because of injury to or destruction of property, . . . caused by accident and arising out of the ownership, maintenance or use" of plaintiff's equipment, and to furnish a defense in any suit instituted to recover damages.

The plaintiff tendered the defense of the third-party action to the defendant, which, after investigation, the defendant refused, and stated that the policy did not cover the type of occurrence in question because it was not an accident.

Upon trial, a judgment was entered in favor of Foss and against Porter for $1,910.55, and in the third-party action, judgment was entered in favor of Porter and against the plaintiff herein, in the same amount.

Thereafter, plaintiff filed a declaratory judgment suit against the defendant seeking a judicial declaration that defendant was obligated to reimburse the plaintiff for the amount of the Porter third-party judgment. The trial court so held, entered judgment in favor of the plaintiff and against the defendant for $1,910.55 plus costs, and the defendant has appealed.

The defendant contends that the damage to Foss' property, resulting from the plaintiff having mistakenly carried out certain earth moving activities thereon, was not caused by accident, as required under the liability policy; that, therefore, there is no obligation on the part of the defendant to reimburse the plaintiff for the judgment rendered against him in the third-party suit; and that the judgment against the defendant herein should be reversed.

The plaintiff urges that the damage caused by his trespass by mistake onto Foss' land was "caused by accident" within the terms of the defendant's liability policy issued to him; and that since the Foss complaint and third-party complaint potentially stated a cause of action against the plaintiff within the coverage of the policy, defendant's denial of liability and refusal to accept the defense of the case, estopped it from asserting any defense as to payment on the ground of noncoverage.

If an ambiguity or uncertainty results from language used in an insurance policy, it is a basic rule of construction that all uncertainty should be resolved in favor of the insured. Iowa Nat. Mut. Ins. Co. v. Fidelity & Cas. Co. of New York, 62 Ill. App.2d 297, 303, 210 N.E.2d 622 (2nd Dist 1965); Caster v. Motors Ins. Corp., 28 Ill. App.2d 363, 366, 171 N.E.2d 425 (4th Dist 1961).

Defendant contends that plaintiff intended to operate his equipment and to perform earth moving activities; that he did what he intended to do; that his acts were deliberate, voluntary and intentional; that there was nothing unforeseen or unexpected about the thing done; and that the occurrence in question was not an accident and there was no liability under the rationale of Farmers Elevator Mut. Ins. Co. v. Burch, 38 Ill. App.2d 249, 187 N.E.2d 12 (4th Dist 1962). Defendant stresses the language at page 252 and 253, to wit:

"The policy covered only damages caused by accident. While the word `accident' does not have a settled legal signification, its generally accepted meaning is the same as the popular ...


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