The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is the United States' (Third-Party Plaintiff) Motion
for Summary Judgment on its third-party claim. [Doc. # 15]. Country
Mutual Insurance Company ("Country Mutual"), the Third-Party Defendant,
has filed a response to the United States' motion [Doc. # 22] and a
Motion for Summary Judgment against the United States. [Doc. # 21]. For
the reasons that follow, the United States' Motion for Summary Judgment
is denied, and Country Mutual's Motion for Summary Judgment is granted.
On February 10, 1992, Patricia Dittmer, a postal driver for the United
States postal service, was driving her own automobile to deliver mail. As
Dittmer was backing her automobile out of a private driveway onto a
public road, her automobile collided with the Plaintiff's automobile.
Dittmer has an automobile insurance policy issued by Country Mutual.
On July 19, 1993, Plaintiff filed a claim under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. § 1346 (b), against the United States for
injuries and damages arising out of this accident. Plaintiff did not
assert any claims against Dittmer.*fn1 The United States, in response,
filed an answer denying Plaintiff's allegations and also filed a
third-party complaint against Country Mutual. The United States in its
third-party complaint sought a declaration that the United States was an
insured under Country Mutual's policy and that Country Mutual is required
to indemnify the United States for any amounts that Plaintiff may be
awarded against the United States.
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there is no genuine issue of material fact.
As to materiality the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be
As to genuine issue, summary judgment will not lie if the dispute about
a material fact is "genuine," that is, if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As stated in
Anderson, "at the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249, 106 S.Ct. at 2510. When a properly supported motion for
summary judgment is made, the adverse party must set forth specific facts
showing that there is a genuine issue for trial. There is no issue for
trial unless there is sufficient evidence favoring the non-moving party
for a jury to return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, or is no more than a
scintilla, a summary judgment may be granted.
In its memorandum supporting its motion for summary judgment, the
United States asserts that it is an insured entitled to coverage under
Patricia Dittmer's automobile insurance policy.*fn2 Furthermore, the
United States asserts that the relevant exclusionary clause in the policy
"is void because it is vague and ambiguous as a matter of law, too
comprehensive in scope and violative of public policy." The exclusion at
issue provides, "[w]e do not provide coverage under Section 1 for: . . .
any obligation for which the United States may be held liable under the
Federal Tort Claims Act." Country Mutual contends that this provision is
valid and enforceable.
"Under Illinois law, `[t]he construction of [an] insurance polic[y]
presents [a] question of law to be decided by the court.'" Transamerica
Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir. 1992) (quoting Community
State Bank v. Hartford Ins. Co., 187 Ill. App.3d 110, 134 Ill.Dec. 810,
812, 542 N.E.2d 1317, 1319 (1989)). An exclusionary clause will be
applied to exclude coverage under the insurance policy if "its
applicability [is] clear and free from doubt." Id. If the exclusion is
ambiguous, it "should be construed most favorable to the insured." Id. An
exclusionary clause is ambiguous "if it is subject to more than one
reasonable interpretation." Id. A court, however, "will not create an
ambiguity where none exists; if a provision is clear and unambiguous
there is no need for construction and the provisions will be applied as
written." Id. Furthermore, to "determin[e] whether an ambiguity exists,
the provision in question must be read in its factual context, not in
isolation." Id. The insurer has the burden of showing that a policy does
not apply because the claim falls within an exclusion. Id. However, an
insurer has no duty to defend if "it is clear from the face of the
underlying complaint that the allegations fail to state facts which
bring the case within, or potentially within, the policy's coverage. . . ."
Travelers Ins. Companies v. Penda Corp., 974 F.2d 823, 827 (7th Cir.
1992) (quoting United States Fidelity & Guar. Co. v. Wilkin Insulation
Co., 144 Ill.2d 64,
161 Ill.Dec. 280, 284-85, 578 N.E.2d 926, 930-31 (1991).
The United States asserts that the exclusion is ambiguous as applied to
an employee or to a third party.*fn3 The United States claims that if
the exclusion is ambiguous in any context, it is, as a result, invalid as
to the United States. The United States relies on Ogima v. Rodriguez,
799 F. Supp. 626 (M.D.La. 1992), to support this proposition. The United
States' reliance on this case for such a proposition, however, is without
merit. In Ogima, the exclusion at issue provided, "WHEN COVERAGE DOES NOT
APPLY . . . For damages for which the United States might be liable for
the insured's use of any vehicle." Id. at 629. The court found that this
language "does not identify which insureds it intends to exclude, is
overly comprehensive and of uncertain import." Id. at 630. In Ogima, the
court never stated that if an exclusion is invalid as to one insured it
will be invalid as to all other insureds. The court in Ogima actually
determined that because the clause failed to specifically identify which
insureds were covered, it was, obviously, invalid as to any insured. In
this case, however, the Court finds that the exclusion clearly identifies
the United States as an insured subject to this exclusion.*fn4
Consequently, the United States' contention that Ogima is dispositive of
this case is without merit.
In addition, the Court finds that it may not consider any set of facts
to determine whether Country Mutual has a duty to defend but may only
consider the facts as stated in Plaintiff's Complaint to make this
determination.*fn5 Travelers, 974 F.2d at 827. As a result, the Court
may only consider the facts as alleged within the Complaint to determine
whether the exclusion is ambiguous. In this case, the Complaint indicates
that Plaintiff is only suing the United States for damages under the
Federal Tort Claims Act. [Doc. # 1]. Therefore, the United States'
contention — i.e., an exclusion is ...