The opinion of the court was delivered by: Richard Mills, District Judge:
Is the insurance company required to defend here?
"John Doe," "James Doe," "John Smith," "John Brown," and
"John Jones" (Defendants) have filed a Complaint in the Sangamon
County Circuit Court against Defendant Joseph Havey (Father
Havey), a Catholic Priest, and the Diocese of Springfield
(Diocese), along with other members of the Roman Catholic Church.
The Complaint alleges Father Havey sexually abused Defendants
during the period between 1978 and 1981. At the time, Defendants
were approximately eleven or twelve years old.
The state court complaint alleges Defendants are from
devoutly catholic families and Father Havey was a frequent and
honored guest in Defendants' homes. In 1978 Father Havey began
supplying Defendants with pornography, cigarettes, alcohol and
marijuana. Father Havey encouraged Defendants to masturbate with
him while viewing the pornography. Father Havey then began having
Defendants perform bizarre masochistic acts to him for his own
Father Havey and the Diocese submitted Defendants' case to
the Plaintiff — Maryland Casualty Company — for defense and, if
necessary, indemnification. Maryland Casualty agreed to defend
the Diocese; however, it refused to defend Father Havey. Maryland
Casualty has filed this declaratory judgment action asking the
Court for a declaration that under its insurance policies it has
no duty to defend Father Havey. Maryland Casualty
and Father Havey have each filed motions for summary judgment.
Under Fed.R.Civ.P. 56(c), summary judgment shall be granted
if the record shows 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." Black v. Henry Pratt Co., 778 F.2d 1278,
1281 (7th Cir. 1985). The moving party has the burden of
providing proper documentary evidence to show the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue
of material fact exists when "there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in
determining whether a genuine issue of material facts exists, the
evidence is to be taken in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90
S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met
its burden, the opposing party must come forward with specific
evidence, not mere allegations or denials of the pleadings, which
demonstrates that there is a genuine issue for trial. Howland v.
Kilquist, 833 F.2d 639 (7th Cir. 1987). "A scintilla of evidence
in support of the nonmovant's position is insufficient to
successfully oppose summary judgment; `there must be evidence on
which the jury could reasonably find for the [nonmoving party].'"
Brownell v. Figel, 950 F.2d 1285 (7th Cir. 1991) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.
2505, 2511, 91 L.Ed.2d 202 (1986)).
The Supreme Court of Illinois has set forth the standard to
be used when determining if an insurance company has a duty to
defend its insured.
To determine an insurer's duty to defend its
insured, the court must look to the allegations of
the underlying complaints. If the underlying
complaints allege facts within or potentially
within policy coverage, the insurer is obliged to
defend its insured even if the allegations are
groundless, false, or fraudulent. (Thornton v.
Paul (1978), 74 Ill.2d 132, 23 Ill.Dec. 541,
384 N.E.2d 335.) An insurer may not justifiably refuse
to defend an action against its insured unless it
is clear from the face of the underlying
complaints that the allegations fail to state facts
which bring the case within, or potentially within,
the policy's coverage. (Conway v. Country
Casualty Insurance Co. (1982), 92 Ill.2d 388, 65
Ill.Dec. 934, 442 N.E.2d 245.) Moreover, if the
underlying complaints allege several theories of
recovery against the insured, the duty to defend
arises even if only one such theory is within the
potential coverage of the policy. Maryland
Casualty Co. v. Peppers, (1976), 64 Ill.2d 187,
355 N.E.2d 24.
United States Fidelity & Guar. Co. v. Wilkin Insulation Co.,
144 Ill.2d 64, 73, 161 Ill.Dec. 280, 284, 578 N.E.2d 926, 930 (1991)
(emphasis in original). When making these determinations, the
complaint and insurance policy must be construed liberally in
favor of the insured. Id. Furthermore, any ...