APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Relying on Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187, 355 N.E.2d 24, the trial court dismissed plaintiff's action for declaratory judgment by which it sought a determination that it had no duty to defend separate suits for wrongful death and for property damage brought against its insureds, Herbert Janson, Sr. and Herbert Janson, Jr. Plaintiff appeals, contending that the trial court misapplied Maryland because the allegations of the complaints in each action, as narrowed by an admission of the insured, fell without the scope of the policy's coverage and, alternatively, that the Maryland rule is an unsound proposition of law which, as applied in the instant case, is violative of the due process clauses contained in the Illinois and United States Constitutions.
The homeowners policy issued by plaintiff to Janson, Sr., was in effect at all times relevant to this appeal and included within its definition of the term "Insured" were Janson, Sr., as the named insured, and Janson, Jr., as the minor child residing in his father's household. The policy provided coverage for bodily injury and property damage caused by an insured upon premises other than the residence of the named insured, as follows:
"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applied, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient."
However, it was also provided that such coverage is not applicable "to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to nonbusiness pursuits" and "to bodily injury or property damage which is either expected or intended from the standpoint of the Insured."
On November 14, 1972, a fire occurred on the premises of Belmont Bowl, Inc. (Belmont), which resulted in the death of a business invitee, Maria Aguillera, and in property damage to the premises. Belmont submitted a damage claim to its fire insurer, Globe Indemnity Company, and received $21,170.48 in settlement. As Belmont's subrogee, Globe sued the Jansons for this amount alleging in count I that Janson, Jr., as a business invitee, negligently started the fire which caused the damage; in count II that Janson, Jr. did so wilfully and wantonly; and in count III that under the Parental Responsibility Law (Ill. Rev. Stat. 1971, ch. 70, par. 51 et seq.) Janson, Sr., was liable to the extent of $500 for the property damage wilfully caused by Janson, Jr.
Subsequently, Eulalio Sanchez, administrator of the estate of the deceased, Maria Aguillera, brought a wrongful death action against Belmont and the Jansons. The complaint alleged in count I that the Jansons were employees of Belmont, acting within the scope of their employment, when Janson, Sr., negligently allowed his son access to a closet containing electrical switches where he "set fire to the premises thereby causing the death of plaintiff's intestate." The complaint also alleged defendants, including Janson, Sr., were negligent in allowing access to the closet by keeping it unlocked, in allowing Janson, Jr., to go upon the premises when they knew of his pyromaniacal tendencies, in failing to warn of the fire after it had started and in not protecting business invitees. In count II, it alleged that the acts and omissions set forth in count I were done in a wilful and wanton manner and, in count III, that Janson, Jr., intentionally set the fire. The Jansons tendered the defense of both suits to plaintiff, which hired a private attorney to protect the Jansons' interests under a full reservation of rights.
Thereafter, plaintiff instituted the instant declaratory judgment action, alleging generally that the Sanchez and the Globe complaints, when considered in conjunction with an admission of Janson, Jr., that he deliberately started the fire, alleged only intentional injuries and damages. Thus, it asserted that neither of the underlying suits came within the policy's coverage and, therefore, that it had no duty to defend them.
After being advised by the submitted documents and the argument of counsel, the trial court's order stated:
"That this cause is dismissed without prejudice to any party to reraise the issues of the Complaint following the disposition of the underlying causes based upon the holding of Maryland [sic] v. Peppers, 64 Ill.2d 187 (1976), said cause being premature.
It is further ordered that Aetna Insurance Company may present any and all defenses to the policy in any future proceedings."
Plaintiff first contends that under Maryland the Sanchez complaint, which alleged that the Jansons were acting within the scope of their employment, came within the policy provision that coverage did not apply to bodily injury and property damage "arising out of business pursuits of any Insured" ...