These duties are separate and distinct, the duty to defend being the broader of the two. Id. We begin our analysis with Avemco's duty to defend.
The duty to defend hinges on a liberal reading of the underlying complaint: to the extent that a single cause of action is potentially within the policy coverage, the duty to defend is triggered, Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28 (1976), even if the insurer discovers that the allegations are groundless, false or fraudulent. Thornton v. Paul, 74 Ill. 2d 132, 144, 384 N.E.2d 335, 339, 23 Ill. Dec. 541 (1978). "Unless the complaint, on its face, clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend." Aetna Casualty, 195 Ill. App. 3d at 664, 553 N.E.2d at 41 (citing Reis v. Aetna Casualty & Sur. Co., 69 Ill. App. 3d 777, 387 N.E.2d 700, 25 Ill. Dec. 824 (1st Dist. 1978)). A court may look beyond the allegations of the complaint "only if the coverage issue involves such ancillary matters as whether the insured paid the premiums or whether he is the proper insured under the policy." Bituminous Casualty Corp. v. Fulkerson, 212 Ill. App. 3d 556, 562, 156 Ill. Dec. 669, 571 N.E.2d 256, 261 (5th Dist. 1991); State Farm Fire & Casualty Co. v. Shelton, 176 Ill. App. 3d 858, 867, 531 N.E.2d 913, 919, 126 Ill. Dec. 286 (1st Dist. 1988); cf. Fidelity & Casualty Co. of New York v. Envirodyne Eng., 122 Ill. App. 3d 301, 306-08, 461 N.E.2d 471, 475-76, 77 Ill. Dec. 848 (1st Dist. 1983) (looking beyond the allegations of the underlying complaint where duty to defend hinged solely on the nature of the services performed by the insured, an issue which could not be considered an "ultimate fact" upon which recovery is predicated in the underlying case).
The gravamen of Avemco's current challenge is that the trip to Florida was for the personal benefit of Robert Lucente, Larry Lucente, James McCrone and Warren Watterson. As such, Avemco contends that they were not acting within the scope of their employment and, consequently, Acer is not an "insured person" under the Policy. In the alternative, if it is determined that the trip was for Acer's purposes, i.e., Robert Lucente and his passengers were acting within the scope of their employment, Avemco, relying on exclusion 3(b) of Part I,
claims that it has no duty to defend Acer because workers' compensation was available to all claimants. These alternative theories set forth by Avemco revolve around the employment status of Robert Lucente and his passengers. If, however, this court were to hold that Robert Lucente, his son and sons-in-law were not acting within the scope of their employment at the time of the crash, plaintiffs in the underlying suit would be estopped from raising a theory of recovery against Acer, i.e., liability based on the doctrine of respondeat superior. Accordingly, we will not look beyond the allegations of the underlying complaint in order to determine Avemco's duty to defend Acer.
The complaint filed in the Circuit Court of Cook County clearly alleges that the flight was for the benefit of Acer, and that Robert Lucente was acting within the scope of his employment with Acer at the time of the crash. The definition of an "insured person" under the Policy includes "a person or organization using or responsible for the use of [Robert Lucente's] aircraft with [Robert Lucente's] permission." Under the circumstances as alleged in the underlying complaint, we conclude that Acer is potentially covered as an "insured person" under the Policy, thus triggering Avemco's duty to defend Acer.
Having held that Avemco is obligated to defend Acer in the underlying tort action, we turn to Avemco's duty to indemnify. The duty to indemnify, unlike the duty to defend, "turns upon the facts of the underlying suit." United Nat'l Ins. Co. v. Dunbar & Sullivan Dredging Co., No. 89-8922, 1990 U.S. Dist. LEXIS 12188, at*2 (N.D. Ill. Sept. 14, 1990) (interpreting Illinois law), aff'd, 953 F.2d 334 (7th Cir. 1992). As such, the duty to indemnify is triggered, "only after the insured becomes legally obligated to pay damages in the underlying action." Aetna Casualty 195 Ill. App. 3d at 664, 553 N.E.2d at 41 (citing Zurich Ins. Co. v. Raymark Indus., Inc., 118 Ill. 2d 23, 514 N.E.2d 150, 112 Ill. Dec. 684 (1987)); see also Dunbar, 953 F.2d at 338 (citing Maryland Casualty Co. v. Chicago & Northwestern Transp. Co., 126 Ill. App. 3d 150, 466 N.E.2d 1091, 81 Ill. Dec. 289 (1st Dist. 1984)); Doran v. Corn Products-U.S., Div. of CPC Int'l, 776 F. Supp. 368, 374-75 (N.D. Ill. 1991) (interpreting Illinois law). To date, no determination has been made in the underlying suit respecting Acer's liability. Accordingly, Avemco's current action, seeking a declaration of its duty to indemnify Acer, is premature and must await resolution of the underlying suit. Indeed, Avemco concedes as much: "Plaintiff agrees that should this court determine that plaintiff has a duty to defend [Acer], a determination as to whether plaintiff has a duty to indemnify Acer would be premature."
Avemco's Response to Mary Lucente's Motion to Dismiss at 2. To the extent that Counts I, III and IV seek a declaration of Avemco's duty to indemnify Acer, they are dismissed without prejudice.
For the reasons set forth above, we declare that Avemco is obligated to defend Acer in the underlying action filed in the Circuit Court of Cook County, No. 90 L 18100. To the extent that Counts I, III and IV seek a declaration of Avemco's duty to indemnify Acer, they are dismissed without prejudice. It is so ordered.
MARVIN E. ASPEN
United States District Judge