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Tuell v. State Farm Fire & Casualty Co.

OPINION FILED APRIL 9, 1985.

JACK TUELL ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE (ROGER W. SEELE, SPECIAL ADM'R OF THE ESTATE OF STUART J. SEELE, DECEASED, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Ogle County; the Hon. Lawrence F. Lenz, Judge, presiding. JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Defendant, State Farm Fire and Casualty Company (hereinafter State Farm) appeals from a summary judgment entered against it in favor of plaintiffs, Jack and Jacqueline Tuell. The judgment held State Farm liable to plaintiffs on a homeowner's policy of insurance and required payment of a judgment of $40,000 levied against the Tuells and the expense of fees and costs incurred by them in a prior wrongful death action. That latter suit had been brought by the special administrator of the estate of Stuart J. Seele, deceased, who allegedly came to his death in an occurrence involving the operation of a motorcycle by Kevin Tuell, plaintiffs' son. Kevin was the owner of the motorcycle. Tuells cross-appeal from the disallowance of attorney fees in prosecuting the declaratory judgment action.

The following is the pertinent sequence of events:

State Farm issued to plaintiffs a policy of insurance covering the period June 27, 1979, to June 27, 1980.

On August 8, 1979, a collision occurred between motorcycles operated by Stuart Seele, a minor, deceased, and Kevin Tuell, age 17, on a dirt path. (This allegation is found in the Seele complaint.)

On July 1, 1982, an action for wrongful death of Stuart Seele was filed, naming Kevin, Jack and Jacqueline Tuell as defendants. Thereupon, defense of this action was tendered to State Farm and refused by State Farm on the ground that there was no coverage under said policy.

On July 11, 1983, a jury verdict was entered in favor of Seele and against Jack and Jacqueline Tuell on counts IV and V of the second amended complaint, judgment thereon for $40,000 being entered on July 25, 1983.

Tuells' suit for declaratory judgment was started on October 6, 1983, and there followed denial of State Farm's motion for judgment on the pleadings, and allowance of Tuells' motion for summary judgment. It is from the latter that State Farm appeals.

Appellant raises three issues on appeal:

1. That the court below erred in finding that the policy in question afforded coverage for the wrongful death claim raised in the underlying action;

2. That the trial judge improperly employed his recollection of testimony in the tort action, this being dehors the record in the declaratory judgment action; and

3. That the trial court erred in finding that State Farm was estopped to deny policy coverage by reason of its refusal to defend in the wrongful death suit.

Because we affirm the judgment below on the ground of estoppel, we consider appellant's first two points only as they relate to the question of estoppel.

The second amended complaint included counts of negligence and wilful and wanton conduct against Kevin Tuell. Count IV alleged a claim against the senior Tuells for negligent supervision of Kevin's operation of a motorcycle, and count V, against the same defendants, raised a claim for negligent entrustment of the motorcycle.

The relevant coverage section of the policy in ...


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