which caused serious injury to the defendant, Mark Totzke, a
minor. The incident involved the discharge of a pellet gun.
Mr. Totzke filed a suit against Mr. Dooley in the state court.
John J. Dooley, Sr., was insured at that time by the plaintiff
under a homeowner's policy (No. H8-284-803). There is no
dispute that Mr. Dooley, Jr., was included under the policy.
The plaintiff contends that the suit filed by the defendant
Totzke only alleges that the harm was caused intentionally;
that its policy does not cover such intentional acts, and
that, therefore, it is not bound to come into the state court
suit and provide a defense for Mr. Dooley.
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 court is foreclosed by the Sims and Palmer cases, supra,
from attempting to determine what the proof will reveal