Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GULF INSURANCE COMPANY v. DOOLEY

June 28, 1968

GULF INSURANCE COMPANY, PLAINTIFF,
v.
JOHN J. DOOLEY, ROZELLA M. DOOLEY, JOHN JAMES DOOLEY, JR., A MINOR, MARK TOTZKE, A MINOR AND EDWIN J. TOTZKE, FATHER AND NEXT FRIEND OF MARK TOTZKE, A MINOR, DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

MEMORANDUM AND ORDER

The plaintiff, Gulf Insurance Company, has filed this declaratory judgment suit to determine whether it has an obligation to defend a lawsuit now pending against one of its insureds. This court is of the opinion that this case is ripe for declaratory relief, but that the complaint and the exhibits on their face reveal that the plaintiff does have an obligation to defend.

There is, however, an initial question of whether this court should assume jurisdiction of this suit. In a declaratory judgment action, this court has discretion to dismiss suits which are not real and substantial controversies, or which request advisory opinions. E.g., Public Service Commission of Utah et al. v. Wycoff Company, Inc., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Zemel v. Rusk, Secretary of State et al., 381 U.S. 1, 19, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). Illinois law does not allow an insurance company to raise the question of a policy's coverage in the state court suit which the insurance company claims it does not have to defend. In fact, it is error to mention the existence of liability insurance. E.g., Kavanaugh v. Parret, 379 Ill. 273, 277, 40 N.E.2d 500 (1942). Therefore, for this plaintiff to find out whether its policy covers the occurrence in question, it would have to file another action in the state courts for a declaration of its rights. E.g., Sims v. Illinois National Casualty Co., 43 Ill. App.2d 184, 193 N.E.2d 123 (1963). Since the plaintiff is presently confronted with the defense of the state court suit, this is not a request for an advisory opinion or a "friendly" suit, but a real and substantial controversy. On these grounds, therefore, this court is of the opinion that it should exercise its discretion and assume jurisdiction. However, a study of the complaint and the exhibits shows that the proper interpretation of the insurance contract in question demands that the plaintiff defend the state court suit.

The plaintiff correctly states the Illinois law relating to an insurance company's obligation to defend its insureds, but does not apply it properly. In order for an insurance company to be relieved from its responsibility to defend, Illinois law requires that the complaint against the insured (here the suit by Totzke against Dooley) show, on its face, that it clearly falls outside the provisions of the insurance policy. Any doubt is to be resolved in favor of coverage. Sims v. Illinois National Casualty Co., supra; Palmer v. Sunberg, 71 Ill. App.2d 22, 217 N.E.2d 463 (1966). The plaintiff here contends that Count II of the state court complaint is clearly within the exclusion of liability for "bodily injury or property damage caused intentionally by or at the direction of the Insured." While it may be true that Count II does fall within this exclusion, it is also true that Count III is, on its face, covered by the plaintiff's policy.

Count II of the Totzke complaint does allege that the injuries were caused "wilfully, wantonly, and without just cause or provocation" and that "malice is the gist of this action." But Count III charges that the same injuries were caused by the negligence of the same parties. This is acceptable alternative pleading, and the complaint taken as a whole shows that it alleges enough to come within the following provision of the policy:

  "This company agrees with the named insured * * *
  [that] the Company shall defend any suit against
  the Insured alleging such bodily injury or
  property damage and seeking damages which are
  payable under the terms of this policy, even if
  any of the allegations of the suit are
  groundless, false or fraudulent. * * *"

This suit must, therefore, be dismissed. It is so ordered.

19680628

© 1992-2003 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.