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MARYLAND CAS. CO. v. HAVEY

May 22, 1995

MARYLAND CASUALTY COMPANY, PLAINTIFF,
v.
JOSEPH HAVEY; JOHN DOE; JAMES DOE; JOHN SMITH; JOHN BROWN AND JOHN JONES, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

Declaratory Judgment.

Is the insurance company required to defend here?

No.

I. Background

"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 gratification.

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.

II. 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)).

III. Analysis

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 ...


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