APPEAL from the Circuit Court of Putnam County; the Hon.
CHARLES M. WILSON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 23, 1980.
Plaintiff Illinois Casualty Company filed a complaint for declaratory judgment in the circuit court of Putnam County to determine its rights and obligations under certain insurance policies issued to defendants Bernice and Robert McLean in conjunction with the operation of the Wagon Wheel Tavern and Restaurant in Magnolia, Illinois. After a bench trial, the court held that plaintiff had an obligation to defend and indemnify the above defendants as to two of three counts of the related cause, and plaintiff perfected this appeal.
On August 31, 1977, defendant Mary Turpen filed a three-count complaint in the circuit court of Putnam County against defendants McLean and others seeking compensatory and exemplary damages for various personal injuries. The complaint alleges the injuries were sustained as a result of Turpen being "assaulted" by Robert McLean the evening of March 5, 1977, at the tavern and restaurant. Count I of the pleading alleges that Bernice McLean was negligent in failing to fulfill certain duties and in retaining Robert and allowing him to conduct the alleged assault. Count II alleges that Bernice sold or gave Robert alcoholic beverages which caused him to become intoxicated and that the alleged intoxication was the cause of Turpen's injuries within the meaning of the Liquor Control Act. (Ill. Rev. Stat. 1977, ch. 43, par. 135.) Count III of the complaint frames the alleged occurrence in terms of wilful and wanton misconduct, and no error is assigned to the trial court's finding that plaintiff has no duty to defend or indemnify defendants McLean as to this count.
On appeal plaintiff contends the decision of the trial court is contrary to the manifest weight of the evidence. Before addressing this ultimate question, we must first consider defendant Turpen's contention that the existence of an insurer's duty to defend must be determined on the basis of the pleadings in the action potentially occasioning insurance coverage. The general rule is well stated in Thornton v. Paul (1978), 74 Ill.2d 132, 144, 384 N.E.2d 335, 339:
"As a general rule, the duty of an insurer to defend an action brought against the insured is to be determined solely from the allegations of the complaint. If the complaint alleges facts within or potentially within policy coverage, the insurer is obliged to defend even if the allegations are groundless, false, or fraudulent. (Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187; 7A J. Appleman, Insurance sec. 4683 (Supp. 1974).) In addition, in Illinois the duty is not annulled by the knowledge of the insurer that the allegations are untrue."
1 In the case at bar, the trial court considered both the allegations of the complaint and the evidence presented at the bench trial of the cause. Defendant interposed no objection to this procedure at trial nor in her motion after judgment, but avails herself of the benefit of the well-established rule permitting an appellee to defend a judgment on review by raising an issue not previously ruled upon by the trial court, where the necessary factual basis for the determination of the issue is contained in the record. E.g., Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 324 N.E.2d 417.
2 Plaintiff contends that it would be incorrect to ignore evidence presented to the trial court, pointing out that the court considered both testimony and written statements in Farmers Automobile Insurance Association v. Medina (1975), 29 Ill. App.3d 224, 329 N.E.2d 430. While evidence was considered by the Medina court, the question of the propriety of the procedure whereby the trial court interpreted an exclusionary clause was apparently never raised by the parties litigant nor considered by the court. We therefore find that the duty to defend in the case at bar should be determined on the basis of the allegations of the underlying complaint.
Count I of the complaint alleges in pertinent part:
"5. That Defendant, BERNICE McLEAN, did then and there owe a duty to Plaintiff and others lawfully upon Defendant's premises to keep the premises reasonably safe for her customers and patrons, but notwithstanding Defendant's duty as aforesaid, she was nevertheless guilty of one or more of the following acts of negligence or negligent omissions:
A. Struck beat and assaulted Plaintiff by and through her agent, servant and employee, ROBERT McLEAN.
B. Negligently and carelessly failed to supervise and maintain order on the premises.
C. Negligently and carelessly employed, retained or left in charge of the premises a person, to-wit, ROBERT ...