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02/16/89 the Western Casualty & v. Adams County Et Al.

February 16, 1989

THE WESTERN CASUALTY & SURETY COMPANY, PLAINTIFF-APPELLANT

v.

ADAMS COUNTY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

534 N.E.2d 1066, 179 Ill. App. 3d 752, 128 Ill. Dec. 621 1989.IL.194

Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiff Western Casualty and Surety Company (Western) appeals the order of Adams County circuit court denying its motion for summary judgment in a declaratory judgment action brought against its insured, Adams County (County). The trial court granted the County's motion for summary judgment and ruled Western had a duty to defend. We affirm.

On March 18, 1987, Western filed a complaint for declaratory judgment pursuant to section 2-701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701), requesting the court to establish the rights and legal relations of the parties under certain insurance policies issued to the County from May 1978 through May 1983. A general liability policy, including automobile coverage, and an umbrella policy were in effect each of the five years in question.

The County demanded Western defend under the policies after Courtney Stephens and other Adams County landholders (collectively referred to as plaintiffs) brought a six-count action against Adams County, two of its township assessors, two supervisors of assessments, and various members of the County Board of Review (collectively referred to as defendants). The events forming the basis of the complaint occurred from 1972 through 1985.

The first four counts alleged deprivations of due process and equal protection in violation of the Civil Rights Act (42 U.S.C. § 1983 (1982)). Counts I through III alleged certain defendants annually "purposefully assessed" plaintiffs' property in excess of legal limits despite repeated challenges to the assessments which were ultimately resolved in plaintiffs' favor by the property tax appeal board or by judicial decision. In addition, plaintiffs alleged County officials assessed the farmland on a productivity basis rather than on fair cash value, failed to assess quadrennially, and failed to equalize assessments. In count IV, plaintiffs alleged an equal protection violation based on the defendant supervisors of assessments' purposeful failure to properly train and supervise township assessors, resulting in excessive assessments made on a productivity basis rather than on a fair cash value basis, and annual rather than quadrennial assessments.

Counts V and VI allege various defendants knowingly neglected certain duties in violation of sections 322 and 323 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1985, ch. 120, pars. 803, 804). Specifically, the counts claimed supervisors of assessments failed to maintain complete sets of property cards, failed to reassess properties upon plaintiffs' application, failed to reassess the properties for diminution of assessed valuation relating to destruction of buildings, and failed to convene a public hearing to discuss equalized assessed valuation of farmland. Count VI alleged defendants knowingly neglected their duties by failing to keep a complete set of property cards, failing to reassess as required by law, and failing to figure assessments using a productivity index. Plaintiffs claimed the County officials' actions prevented or hindered proceedings in which plaintiffs sought reduction and equalization of assessed valuations, and resulted in assessments higher than that of comparable property.

In its complaint for declaratory judgment, Western claimed no coverage existed because (1) the events described in the Stephens complaint did not fall within the definition of "occurrence" provided in the policies; (2) the complaint did not allege a cause of action for personal injury or property damage as defined in the policies; and (3) the complaint appeared to allege a cause of action for intentional overassessment of property tax, which the policies did not cover. Attached to the complaint were various excerpts from the policies in effect during the applicable time; however, complete copies of the policies appear in the record.

The parties filed cross-motions for summary judgment. On March 9, 1988, the trial court granted the County's motion for summary judgment and ordered Western to defend. This appeal followed.

Western argues principally that the Stephens complaint alleges intentional conduct which by definition cannot be termed an occurrence, and consequently, is clearly not covered by the policy. The County contends the Stephens complaint alleges an occurrence potentially within the ambit of the policies' coverage. It also contends the complaint states a cause of action for personal injury or property damage sufficient to trigger Western's duty to defend.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22, 25.) The reviewing court will reverse the order granting summary judgment if it determines ...


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