Appeal from the Circuit Court of Macoupin County; the Hon.
John W. Russell, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendants, Edward S. Smith and James D. Osborne, appeal a summary declaratory judgment entered by the circuit court of Macoupin County on March 17, 1982. The judgment declared that plaintiff, Mid America Fire and Marine Insurance Company, owes no duty to defend Osborne in an underlying suit brought by Smith against Osborne and arising from an incident of July 11, 1979, or any other suit arising from that incident. The judgment also declared plaintiff had no duty to indemnify Osborne for any judgment or settlement arising from that suit or that incident. We affirm.
The undisputed evidence before the court when ruling on plaintiff's motion for summary judgment showed that, during an altercation between Osborne and Smith on July 11, 1979, Osborne kicked Smith in the head, causing injury to Smith.
Plaintiff's complaint for declaratory judgment was filed on September 14, 1981, and an amended complaint was filed on October 15, 1981. After issue was drawn, plaintiff moved for summary judgment. The motion was supported by various documents, the most important of which were transcripts of defendants' deposition testimony and copies of pleadings from the suit between defendants. In that case, Smith alleged he had been injured by Osborne's negligent conduct. Plaintiff had issued a homeowner's insurance policy extending various coverages to Osborne including that for liability. Of crucial importance in the case were the following provisions of the policy:
We promise to pay on behalf of an insured for damages resulting from bodily or property damage caused by an occurrence if the insured is legally obligated.
Liability and Medical Payments, Coverages A & B does not apply to bodily injury or property damage:
1. Caused intentionally by or at the direction of an insured. * * *
Occurrence in Section 1 means an accident, including continuance or repeated exposure to conditions which results in bodily injury or property damage."
Plaintiff does not dispute that Osborne inflicted injuries upon Smith on July 11, 1979. Plaintiff contends, however, that the injuries did not result from an "accident" as required by the policy but rather resulted from an intentional act of Osborne thereby excluding coverage from the consequence of the incident.
Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57(3)) stated that summary judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material ...