Appeal from the Circuit Court of Madison County; the Hon.
Victor Mosele and the Hon. John W. Day, Judges, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 20, 1982.
This is an appeal by the Bay State Insurance Company (Bay State) from two judgments of the circuit court of Madison County. The cases originated from an incident wherein James B. Johnson (Johnson) shot Gerald Wilson (Wilson) in the back with a .12-gauge shotgun fired at point-blank range. The appeal turns upon an interpretation of an exclusionary clause contained in a personal liability section of a homeowners insurance policy issued by Bay State to Johnson.
The shooting incident occurred in August of 1972. The facts attending the shooting may be briefly stated. Joyce Vaughn, Wilson's girlfriend, lived in a basement apartment in Johnson's home in Alton. She decided to move to another apartment, and Wilson and two of his friends went with her during daylight hours to help with the move. Ms. Vaughn stayed in the car while Wilson and the others went to her apartment. Wilson did not have a key and was endeavoring to gain entrance without one, apparently through a window. The noise attracted Johnson who stuck his head out an upstairs window and asked Wilson what he was doing. Johnson knew Wilson through Wilson's prior visits to the apartment to see Ms. Vaughn. Wilson, aged 22 at the time, told Johnson, aged 72 at the time, that he was going to get the furniture. Johnson then said something to the effect, "Oh no you ain't, get off my property." Johnson then disappeared from the window, got his .12-gauge shotgun and went outside to confront Wilson and the others. The two accounts of what happened next differ but little. Johnson testified that as he went outside Wilson separated himself from the others, his right hand was in his right pocket and his back was partially toward the others. The other two men left quickly. Wilson stayed, "made a flash" out of his pocket with his right hand, and Johnson shot him. Wilson testified that when Johnson came out with the shotgun, he, Wilson, said, "O.K., I'm leaving." He took one step backward and turned to the right, whereupon Johnson shot him. Wilson's version of the incident was corroborated by Ms. Vaughn. Wilson, in fact, had no weapon, and he received serious and permanent injuries from the shooting.
The shooting gave rise to four lawsuits. The first was a criminal prosecution of Johnson. He was initially charged with attempted murder. Subsequently, the charge was reduced to aggravated battery, and on October 16, 1973, in a trial before the court sitting without a jury, defendant was found guilty of aggravated battery.
The second case to arise from the shooting incident sounded in tort for damages for personal injury. A one-count complaint was filed December 18, 1972, alleging that Johnson had maliciously, intentionally and feloniously assaulted Wilson with a loaded shotgun. Johnson's personal attorneys filed a responsive pleading and tendered defense of the action to Bay State pursuant to the provisions of a homeowners insurance policy. Bay State denied coverage since the complaint alleged an intentional act by the insured for which there was no coverage under the policy. Johnson's personal attorneys then filed a third-party complaint against Bay State to require them to defend Johnson in the pending action. The third-party complaint was dismissed upon motion.
Plaintiff filed an amended complaint, adding count II which charged Johnson with "negligence in use and possession" of the shotgun. Again the defense of the action was tendered to Bay State, and it again refused as to count I. However, it agreed to provide a defense to count II, which sounded in negligence, under a reservation of rights. The firm of Reed, Armstrong, Gorman and Coffey was retained by Bay State for this defense, and it entered an appearance for defendant on May 16, 1973.
Subsequently, Wilson amended count II of his complaint to allege that Johnson had "failed to appreciate, evaluate and assess the circumstances of plaintiff's presence on the premises" in determining that there was a need for self-defense. Wilson then also added a count III to his complaint, which alleged that defendant was "reckless and wanton" in his assessment of the need for self-defense.
Still later, count I of the complaint was amended so as to allege that defendant unreasonably "used excessive force with a loaded shotgun" in shooting plaintiff in the back. Count I, as amended, was dismissed by plaintiff immediately prior to trial. Reed, Armstrong, Gorman and Coffey filed on behalf of defendant denials of all material allegations of counts II and III and pleaded as an affirmative defense self-defense by Johnson in that any action taken by him was reasonably believed necessary to defend himself and prevent death or great bodily harm.
Prior to trial, Johnson's personal attorney demanded of Bay State that it tender the policy limits in settlement of the case. The demand was refused, and on March 25, 1975, the case went to trial before the court sitting without a jury. After hearing the evidence, the court entered judgment for Wilson upon count II, that which charged negligence, but found in favor of defendant on count III, that which charged reckless and wanton misconduct. Damages were assessed at $100,000. Reed, Armstrong, Gorman and Coffey filed a post-trial motion, which was denied. The case was appealed to the Appellate Court for the Fifth District. In a Rule 23 order issued on December 14, 1977, this court, with one judge dissenting, affirmed the judgment. (54 Ill. App.3d 1114.) Petition for leave to appeal to the supreme court was denied.
On September 5, 1974, Reed, Armstrong, Gorman and Coffey had written Bay State advising it of a conflict of interest that existed because of the duty of the firm to afford defendant "the best defense possible." The letter further advised Bay State that the Reed firm would be unable to participate in any way in the determination of the policy coverage question. Bay State thereupon retained the services of another firm of attorneys to file a declaratory judgment action in order to determine the policy coverage question. This declaratory judgment action was the third lawsuit to arise from the shooting incident. Wilson filed an answer and a counterclaim in the declaratory judgment action, alleging that Bay State had negligently or in bad faith refused to settle for their policy limits. The counterclaim prayed for the payment of the $100,000 judgment that had been rendered in his favor in the underlying lawsuit. This counterclaim for negligence or bad faith in refusing to settle the tort claim within policy limits was the fourth lawsuit to arise from the shooting incident. The counterclaim was dismissed upon motion by Bay State, apparently because Wilson had no personal cause of action against the insurer.
A second answer and counterclaim was filed by Wilson in the declaratory judgment action on July 20, 1978. Motions to dismiss were again filed by Bay State. The motions were denied on August 17, 1978.
The defendant in the underlying tort action, James B. Johnson, died on January 2, 1977, and a suggestion of death was filed. On September 5, 1979, the personal representative of the estate of James B. Johnson, deceased, assigned to Wilson the cause of action asserted against Bay State for its refusal to settle within its policy limits.
The declaratory judgment action was severed from the counterclaim for trial and was tried before the court sitting without a jury. During the trial it was stipulated by both parties that "James Berry Johnson recklessly and wantonly determined that he was justified in the use of lethal force against Gerald Wilson in the defense of his person and property, and that as a result of that evaluation by James Berry Johnson he fired his shotgun intentionally at Gerald Wilson, causing the injury which gave rise to this action." Additionally, the record of the conviction of James B. Johnson of the crime of aggravated battery for the shooting of Wilson was introduced into evidence. Wilson's attorney objected to any consideration of the criminal proceeding.
Following trial of the declaratory judgment action upon stipulated evidence, the court found (1) Johnson's primary intent was that of self-defense rather than that of injury to Wilson, (2) neither wilful, wanton nor reckless misconduct amounts to a specific intent to cause injury, and (3) therefore, Johnson lacked the specific intent to harm Wilson required to bring his act within the scope of the exclusionary clause of the policy. No finding was made regarding that portion of the exclusionary clause which provided no coverage if the act by the insured was "expected" to cause injury or property damage. Judgment in the declaratory judgment action was accordingly rendered against Bay State. This meant that the court found that there was coverage under the policy terms for the shooting incident involved.
Subsequently, in the severed trial of the counterclaim, another judge of the court ruled that the assignment of the policy coverage claim of Johnson against Bay State was valid and that Bay State had been guilty of bad faith in its refusal to settle the underlying tort case within its policy limits. Accordingly, judgment was rendered ...