APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THIS COURT.
Plaintiff, Aetna Casualty & Surety Company (Aetna), appeals from an order of the Circuit Court of Du Page County which awarded a total of $153,165.29 to defendants Julie Young *fn1, its insured, and the Gary-Wheaton Bank (as administrator of the estate of Joseph Young), a judgment creditor of the insured.
The instant lawsuit was commenced when Aetna filed a complaint for declaratory judgment against defendant Julie Young requesting the following relief: (a) a declaration that a claim contained in a complaint filed by the Gary-Wheaton Bank as administrator of the estate of Joseph Young, Jr., naming Julie Young as defendant is not covered by Aetna's Homeowner's Insurance Policy; (b) a declaration that Aetna has no duty to defend Julie Young against the allegations set forth in that complaint; and (c) a declaration that Aetna has no duty to indemnify Julie Young against any judgment which may be entered against her on the allegations set forth in that complaint.
The complaint which Aetna refers to in its declaratory judgment action charges Julie Young with killing her husband and prays an award of money damages for the benefit of the minor child of the parties. Julie Young did, in fact, kill her husband, although she was found not guilty of his murder by reason of insanity in the criminal trial. Subsequent to her acquittal, the trial court in the criminal case found Julie Young had regained her sanity.
Aetna grounds its complaint for declaratory judgment on the assertions that its policy does not apply to "bodily injury * * * which is either expected or intended from the standpoint of the insured" and the complaint filed by Gary-Wheaton Bank charging Julie Young with the death of her husband "alleges only injury or damage expected or intended by Julie Young." As the death of her husband was either "expected" or "intended" by Julie Young, Aetna claims it has no duty to defend or indemnify her in the civil action filed by the administrator of her husband's estate.
Julie Young filed an answer to Aetna's complaint for declaratory judgment denying its material allegations and requesting the trial court to direct Aetna to provide a defense to and indemnify her from all claims set forth in the complaint filed by Gary-Wheaton Bank. Thereafter, Aetna filed a motion to add the Gary-Wheaton Bank to its declaratory judgment action as an additional party defendant so that the Bank could assert any interest it might have in the controversy between Aetna and Julie Young.
During the same time span, the Gary-Wheaton Bank twice amended its complaint in its suit against Julie Young by adding two additional counts. Count II alleged that Julie Young inflicted the blows which killed her husband "in a state of legal insanity" and count III alleged that she was negligent and careless in that (a) she consumed various medications which made her irrational; (b) she failed to secure psychiatric treatment; (c) she negligently permitted herself to inflict the blows which killed her husband. Count III of the amended complaint was dismissed on motion before trial. Aetna acknowledges that after the filing of each amended complaint it was tendered the defense of the suit but each time refused on the same basis as its first refusal, i.e., that the complaint charging Julie Young with battering her husband was not covered by Aetna's Homeowner's Policy.
While Aetna's declaratory judgment action was pending, the underlying action of the Gary-Wheaton Bank versus Julie Young went to trial in the Circuit Court. That trial resulted in a verdict and judgment in favor of the Gary-Wheaton Bank against Julie Young in the amount of $150,000.
After the judgment was entered, Julie Young filed a counterclaim against Aetna in the declaratory judgment proceeding alleging that Aetna failed to defend her despite timely demands by her that it do so; that the jury returned a verdict against her in the amount of $150,000 and prayed for damages from Aetna in the amount of $100,000 which was the limit of Aetna's policy. The Gary-Wheaton Bank also filed an appearance and counterclaim against Aetna alleging that it was a judgment creditor of Julie Young as a result of the judgment it obtained against her and prayed for the entry of an order directing Aetna to pay $150,000 plus interest and costs to satisfy the judgment.
Aetna filed a motion to strike and dismiss Julie Young's counterclaim and an answer to Gary-Wheaton's counterclaim in which it alleged that it was unaware of the trial date in the case of Gary-Wheaton Bank versus Julie Young.
The Gary-Wheaton Bank then moved for summary judgment on its counterclaim and Aetna moved for summary judgment on its complaint for declaratory judgment and a dismissal of the counterclaims of both defendants.
Pursuant to the motions of the parties, the trial court entered its final judgment order denying Aetna's motion for summary judgment and all of its relief; granting Gary-Wheaton's motion for summary judgment on its counterclaim and entering judgment against Aetna in the amount of $150,000; and granting Julie Young attorneys' fees of $3,165.29 for Aetna's wrongful refusal to defend her. Aetna filed a post-trial motion attacking the judgment requesting, inter alia, that the trial court state "the findings and conclusions upon which the Court's judgment is based." Aetna's post-trial motion was denied and this appeal ensued.
On appeal Aetna contends (1) that it had no contractual duty to defend Julie Young in the action brought against her by the Gary-Wheaton Bank, (2) that it had no duty to indemnify the insured against the adverse judgment entered against her, and (3) that in no event was it liable for any amount in excess of the $100,000 policy limits.
Gary-Wheaton Bank has argued that Aetna should be estopped from asserting the defense of non-coverage in this action because it breached its duty to defend its insured, Julie Young, in the prior civil action for ...