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Warren v. Lemay

OPINION FILED JUNE 5, 1986.

TERRY WARREN ET AL., PLAINTIFF-APPELLEES,

v.

ROBERT LEMAY ET AL., DEFENDANTS (SHAND, MORAHAN & COMPANY AND EVANSTON INSURANCE COMPANY, GARNISHEE-APPELLANT).



Appeal from the Circuit Court of St. Clair County; the Hon. Roger Scrivner, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 2, 1986.

The garnishee, Shand, Morahan & Company, Inc., and Evanston Insurance Company, appeals from the circuit court of St. Clair County's denial of its motion for summary judgment and the grant of the plaintiffs', Terry and Rondice Warrens', motion for summary judgment in a garnishment action. The garnishee raises the following issues on appeal: (1) whether the insured's actions as characterized by the jury's finding were excluded coverage in the insurance policy; (2) whether the policy excludes coverage for the punitive damages; (3) whether the policy provides coverage for attorney fees and costs assessed against the insured for statutory violations; and (4) whether the plaintiffs are entitled to attorney fees and costs for the garnishment action. We affirm.

This appeal is a second appeal from a jury trial in Warren v. Lemay, No. 5-84-0542 (filed March 24, 1986). When the plaintiffs commenced this action, they alleged in their complaint that defendant Century 21 Baebler Realtors (insured) was guilty of wilful and wanton misconduct, in violation of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5701 et seq.) and rules of the Department of Registration and Education promulgated thereunder. They also alleged that defendants Orkin and the insured violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 261 et seq.). In the action, the jury returned a general verdict in favor of the plaintiffs and against defendants, insured and Orkin in the amount of $34,700 for actual damages. The jury also rendered separate verdicts against the defendants in the amount of $25,000 each for punitive damages. The jury also answered numerous special interrogatories. In its responses, it found that the plaintiffs had failed to meet their burden of proof on their claim against defendants Lemays, but had proved all of their claims against Orkin and the insured. The jury found that defendants Orkin and the insured had each shown an utter indifference to or conscious disregard for plaintiffs. The circuit court entered judgment on the jury's verdicts. Thereafter, the court granted the plaintiffs' petition for attorney fees and costs pursuant to section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 270a(c)), but reduced the fees from $37,563.75 to $17,464.50 and awarded only $335.42 of the $3,959.85 requested in costs.

Following the verdict, both defendants appealed. This court affirmed the judgment but remanded the case to assess the requested attorney fees and costs expended on the appeal. In this court's opinion, it found ample evidence from which the jury could conclude that the insured through one or more of its employees acted in such a manner indicating a wilful and wanton disregard for the plaintiff's rights. Furthermore, this court affirmed the attorney fees and costs under section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act. This court also found that the intent of section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act entitled a prevailing party to "all fees and costs reasonably incurred in connection with the claim brought pursuant to its terms." Thus, this court granted the plaintiffs' motion to recover its fees and costs expended for the appeal.

Prior to the pendency of the first appeal in this action, the plaintiffs instituted a garnishment action on August 20, 1984. They sought to garnish an insurance policy issued by the garnishee, Shand, Morahan & Company, Inc., and Evanston Insurance Company, to the insured. After numerous pleadings, on April 3, 1985, the plaintiffs filed a motion for summary judgment with their motion or suggestion in support of its motion and supporting documents. On April 22, 1985, the garnishee filed its motions for summary judgment with its supporting memoranda. On April 25, 1985, the trial court held a hearing on the motions for summary judgment. After hearing the arguments, the trial court granted the plaintiffs' motion for summary judgment in the amount of $59,700 plus interest to date of $5,505.49 on the jury verdict and in the amount of $17,799.92 plus interest to date of $1,610.57 on the judgment for attorney fees and costs plus costs of garnishment action in the amount of $57.64. The total judgment was $84,673.62. From this judgment the garnishee appeals.

• 1-3 A summary judgment is an appropriate tool in the administration of justice where the issues are defined and the parties agree that only a question of law exists. (Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App.3d 752, 754-55, 488 N.E.2d 1338, 1340.) In this case, the parties filed cross-motions for summary judgment. In their motions as well as in this appeal, the parties did not and do not argue that a genuine issue of facts still exists. Rather, the parties argue over, in each issue, the interpretation, construction and legal effect of the exclusion provision of the insurance contract. Such issues are determined by the court as questions of law. (Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App.3d 990, 992, 403 N.E.2d 622, 623.) Thus, a trial court may grant a summary judgment where the pleadings, depositions and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.) On appeal, the reviewing court will reverse the order of summary judgment if it is based upon an erroneous interpretation of the law. (Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App.3d 752, 488 N.E.2d 1338.) This court finds that the trial court properly granted the plaintiffs' motion for summary judgment and did not base its decision on an erroneous interpretation of the law.

• 4, 5 Since the issues on appeal involve the interpretation of the exclusion provision within the insurance policy, this court will follow the general rules of interpretation. This court will enforce a policy exclusion if it is clear and unambiguous and does not contravene public policy. (Severs v. Country Mutual Insurance Co. (1982), 89 Ill.2d 515, 521, 434 N.E.2d 290, 292.) In applying these rules of interpretation, the words in the policy are given their plain and ordinary meaning. This court will not search for ambiguities. United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill.2d 1, 5, 429 N.E.2d 1203, 1205.

• 6 The garnishee's first issue on appeal involves the application of the following provision in the insurance policy:

"THE EXCLUSIONS

1. This Policy Does not Apply:

(a) to any judgment or final adjudication based upon or arising out of any dishonest, deliberately fraudulent, criminal, maliciously or deliberately wrongful acts or omissions committed by or at the direction of the insured. However, notwithstanding the foregoing, the Company will provide a defense for any such claims without any liability on the part of the Company to pay such as the insured shall become legally obligated to pay as damages; * * *." (Emphasis added.)

In the first issue, the garnishee argues that the characterization of the insured's actions by the jury and by this court in its opinion in the first appeal "clearly and unambiguously" excludes the insured's acts from coverage under the insurance policy. Since the issue specifically involves the interpretation and application of the words "dishonest, deliberately fraudulent, criminal, maliciously or deliberately wrongful acts or omissions" within the exclusion provision of the policy, the doctrine of noscitur a sociis is applicable. The doctrine states that the meaning of questionable words may be ascertained by reference to the words associated with them. In this case, the words in the provision as a group refer to intentional acts by the insured. Thus, for the garnishee to prevail in this appeal, it must establish that the jury characterized the insured's acts as intentional. Further, the garnishee must also establish that our opinion in the first appeal characterized the insured's actions as intentional.

• 7 The garnishee specifically contends in the first issue that the jury's finding that the insured's actions violated the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5701 et seq.) and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 262) characterized the acts as dishonest and fraudulent. The garnishee's argument involves the construction of the statutes under section 15 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. ...


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