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Reis v. Aetna Casualty & Surety Co.

OPINION FILED NOVEMBER 30, 1978.

MARILYN REIS, PLAINTIFF-APPELLANT,

v.

AETNA CASUALTY AND SURETY COMPANY OF ILLINOIS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding. MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

MR. JUSTICE ROMITI delivered the opinion of the court:

The issue in this case is whether a homeowner's insurer can refuse to defend its insured merely because part of the conduct complained of in the tort complaint allegedly occurred on business property and the policy excludes liability for injuries arising out of business pursuits of any insured, except activities ordinarily incident to nonbusiness activities. We hold that in light of the specific allegations of the tort complaint, the insurer was required to defend and, having failed to do so, cannot now deny coverage. We also hold that any ruling as to the insurer's liability for that amount of the judgment exceeding the policy limits was premature as the facts had not been fully developed. That issue may, however, now be moot. We remand for a determination of the amount of the damages.

On August 14, 1974, Ricky Wummel, as administrator of the estate of Clarence H. Wummel II, filed a suit against Harmony Machine Resource, Inc., Marilyn Reis, and Robert Aldal. The complaint alleged that Marilyn Reis was an officer and employee of Harmony, that Aldal was also an employee of Harmony, that Aldal was also Douglas Phillips' supervisor; that on October 7, 1970, prior to reporting to work at Harmony, Phillips consumed a quantity of alcoholic beverages and prescription medications at Marilyn Reis' home; that when Phillips reported to work, he was intoxicated and incapable of operating machinery or driving an automobile and that Aldal and Reis knew or ought to have known this and, that after Phillips arrived at Harmony's premises, Harmony, through Aldal and Reis:

1. Carelessly and negligently undertook to treat the said Douglas W. Phillips for his condition of intoxication;

2. Carelessly and negligently offered medication to the said Douglas W. Phillips;

3. Carelessly and negligently offered medication to the said Douglas W. Phillips, which medication aggravated the physical condition of the said Douglas W. Phillips;

4. Carelessly and negligently offered sleeping pills for which a prescription was necessary to the said Douglas W. Phillips;

5. Carelessly and negligently ordered the said Douglas W. Phillips to leave the premises of Harmony Machine and to drive his automobile back to his home;

6. Carelessly and negligently allowed the said Douglas W. Phillips to leave the premises in a condition of intoxication which was dangerous to other individuals in the area of the Harmony Machine premises and other individuals using the public thoroughfares in the area of the Harmony Machine premises;

7. Carelessly and negligently ordered the said Douglas W. Phillips to return to his home, knowing that his condition of intoxication made his driving of his car a danger to other motorists and individuals;

8. Otherwise carelessly and negligently caused an accident in which the automobile driven by Douglas W. Phillips collided with an automobile driven by the plaintiff's decedent, Clarence H. Wummell II.

After Phillips left the premises, he had an automobile accident in which plaintiff's decedent was killed.

Harmony Machines Inc. was insured by Crum and Forster Insurance Companies which had issued a workmen's compensation and employers' liability policy providing $100,000 for each accident. It does not appear from the record whether this policy protected Marilyn Reis in her capacity as officer of Harmony. Certainly, it did not protect her in her individual capacity. Crum and Forster on September 13, 1974, filed an appearance in the suit on behalf of the corporation and Reis. On September 18, 1974, Richard B. Harty also filed an appearance on behalf of Reis and Aldal.

• 1 Marilyn Reis was personally insured under an apartment owner's policy issued by Aetna Casualty and Surety Company in the amount of $50,000 per occurrence. Shortly after suit was filed, Reis sent a copy of the complaint to Aetna; this apparently was the first notice of the accident given to that insurer. On October 4, 1974, Aetna answered, agreeing to file an appearance temporarily on her behalf as additional counsel, *fn1 but reserving its right to deny coverage because (1) notice had not been promptly given as required by the policy (this contention has not been pursued); (2) it was questionable whether an "occurrence" as defined in the policy was alleged in the complaint (this contention also was later dropped) and (3) the policy did not provide coverage since it excluded bodily injury arising out of business pursuits. Aetna, in the letter, also pointed out that the ad damnum was for ...


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