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Grinnell Mutual Reinsurance Co. v. Frierdich

OPINION FILED DECEMBER 27, 1979.

GRINNELL MUTUAL REINSURANCE COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,

v.

ANNETTE FRIERDICH ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. DAVID W. COSTELLO, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Grinnell Mutual Reinsurance Company filed this declaratory judgment action in the Circuit Court of St. Clair County seeking a determination of its rights and liabilities under a comprehensive personal liability insurance policy. Grinnell's insureds, James and Shirley Griffith, were sued for personal injuries sustained by Annette Frierdich. Grinnell sought a declaratory judgment that it had no duty to defend the Griffiths because of an exclusionary clause in the insurance policy which provided that it did not cover injury "caused intentionally by or at the direction of the insured." After both plaintiff and defendants had moved for summary judgment, the circuit court held that questions of fact as to the nature of the Griffiths' conduct should be resolved by a jury in the personal injury suit, and therefore dismissed the declaratory judgment action without prejudice to its refiling after Frierdich's action against the Griffiths was concluded.

On appeal, the insurance company urges that the record below conclusively showed that the bodily injuries sustained by Frierdich were intentionally caused by the Griffiths, and therefore the trial court should have entered judgment in the company's favor. The appellees contend that the complaint in the personal injury action alleged facts within the coverage of the policy, establishing the duty of the company to defend, and that a ruling in the declaratory judgment action on the nature of the defendants' conduct would deprive the parties of their right to have the ultimate facts in issue determined by a jury.

The insurance policy in question required Grinnell to defend any suit for personal injuries brought against its insureds, even if the allegations of the suit were groundless, false or fraudulent. Two counts of Frierdich's complaint alleged intentional acts constituting battery upon her by both of the Griffiths. Two other counts alleged that those same acts were done "willfully, wantonly and maliciously." The company's position, both here and in the court below, is that the allegations of the complaint, taken together with certain deposition testimony attached to its motion for a summary judgment, conclusively show that Frierdich's action alleges injuries "caused intentionally" by the Griffiths, and therefore is not within the coverage of the policy.

The underlying lawsuit grew out of an argument and fight between Frierdich and the Griffiths. Frierdich's complaint alleged that Shirley Griffith intentionally assaulted her and intentionally did the following acts:

"(a) Ripped off all of the Plaintiff's clothing from the upper half of her body;

(b) Forced the Plaintiff to the ground;

(c) Pulled hair from the Plaintiff's head;

(d) Scratched the Plaintiff;

(e) Punched the Plaintiff in various portions of her body; and

(f) Other acts of physical and forceful violence to Plaintiff."

The complaint further alleged that James Griffith intentionally kicked Frierdich in the head. Each of these same acts by both Shirley and James Griffith were alleged in other counts to have been done "willfully, wantonly and maliciously."

In her deposition, Frierdich testified that the Griffiths' acts were intentional. In Shirley Griffith's deposition, she testified that she became angry after Frierdich called her husband names, and that she grabbed Frierdich's blouse, whereupon the two of them fell to the ground; she hit Frierdich only when Frierdich would not let go of her hair.

Although we think that it is clear that Frierdich's complaint alleges intentional acts, that does not necessarily mean that the Griffiths intentionally injured her, nor does the complaint allege a specific intent to injure. As the court said in Cowan v. Insurance Company of North America (1974), 22 Ill. App.3d 883, 318 N.E.2d 315, ...


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