APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
531 N.E.2d 913, 176 Ill. App. 3d 858, 126 Ill. Dec. 286 1988.IL.1666
Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
Plaintiff, State Farm Fire & Casualty Company, filed a complaint for declaratory judgment seeking a ruling that it had no duty to defend or indemnify its insured, Theaster Shelton, in a wrongful death action. The trial court granted State Farm's motion for summary judgment on its complaint, finding that since Shelton had been convicted of voluntary manslaughter for the shooting death of the victim, his actions were excluded from coverage under the insurance policy.
Shelton appeals, contending that the trial court improperly took judicial notice of the facts and results of the criminal proceeding and that the declaratory judgment action was premature.
On January 15, 1983, Theaster Shelton, the insured, shot and killed Thomas Haseman. The facts surrounding that incident are contained in an unpublished Supreme Court Rule 23 order (107 Ill. 2d R. 23), in which Shelton's conviction of murder after a bench trial was reduced to voluntary manslaughter by the appellate court. People v. Shelton (1st Dist. 1985), No. 84 -- 1265.
Thereafter, Haseman's wife filed a wrongful death action against Shelton seeking damages. Her second amended complaint alleges in count I that the shooting was intentional. Counts II and III sound in negligence. After Shelton was served with the lawsuit, he tendered it to State Farm Fire & Casualty Company, his insurer, which agreed under a reservation of rights to defend the case. Shelton selected his own attorneys.
State Farm then filed its complaint for declaratory judgment, seeking a declaration that it had neither a duty to defend nor to indemnify Shelton because his conduct in the underlying shooting caused "intentional or expected" injury, which is excluded under the policy. State Farm moved for summary judgment on the basis that the criminal conviction for voluntary manslaughter established as a matter of law that Shelton's conduct was intended or expected.
Shelton's attorney opposed the motion without filing affidavits or other evidentiary material. He argued that the declaratory action and summary judgment motion were premature because the underlying tort suit had not been resolved and the declaratory action court's decision on the nature of the insured's conduct may improperly resolve contested issues in the tort litigation.
The trial court, believing itself bound to take judicial notice of the Rule 23 order, granted State Farm's motion for summary judgment on ...