Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.
Petition for Leave to Appeal Denied April 3, 1996.
The Honorable Justice McNULTY, delivered the opinion of the court: Cousins, P.j., concurs. T. O'brien, J., specially concurs.
The opinion of the court was delivered by: Mcnulty
The Honorable Justice McNULTY delivered the opinion of the court:
Plaintiff Marshall Spiegel appeals from a trial court order granting summary judgment in favor of defendant State Farm Fire and Casualty Company (State Farm) in plaintiff's declaratory judgment action. We affirm.
Plaintiff was involved in an altercation with his neighbors, as a result of which he was charged with criminal battery. Plaintiff sought coverage for the defense of the criminal charge under the State Farm umbrella insurance policy that had been issued to him. State Farm denied coverage on the basis that the battery was based on criminal intent, and the policy excluded intentional acts from coverage. Plaintiff was later acquitted of the battery charge.
Plaintiff filed a declaratory judgment action against State Farm, seeking a declaration that State Farm improperly denied coverage for plaintiff's defense of the criminal charge. The trial court granted State Farm's motion for summary judgment, holding that the State Farm policy did not provide coverage to defend against the criminal complaint filed against plaintiff because the criminal complaint was not an action for damages. Plaintiff appeals, contending that the trial court erred in determining that the criminal battery charge was excluded from coverage on the basis that it was not an action for damages and was an intentional act.
An insurer is obligated to defend those actions where the complaint alleges facts potentially within the coverage of the policy, even if the allegations are groundless, false or fraudulent. ( Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, 23 Ill. Dec. 541.) Here, however, plaintiff has failed to show any facts demonstrating potential coverage.
The State Farm policy provides that, "If you are legally obligated to pay damages for a loss, we will pay your net loss minus the retained limit." The policy defines "loss" as "an accident that results in personal injury or property damage during the policy period" and "net loss" as "the amount you are legally obligated to pay as damages for personal injury or property damage." "Personal injury" is defined under the policy as "bodily harm, sickness, disease shock, mental anguish or mental injury," "false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation," "libel, slander, defamation of character or invasion of rights of privacy" and "assault and battery."
Plaintiff seeks to recover defense costs from State Farm on the basis of the policy language providing coverage for battery. State Farm claims and the trial court agreed that the although the policy provides coverage for damages resulting from a battery, the criminal charges brought against plaintiff do not seek the recovery of damages. In Shelter Mutual Insurance Co. v. Bailey (1987), 160 Ill. App. 3d 146, 513 N.E.2d 490, 112 Ill. Dec. 76, a criminal battery charge was brought against the insured, and the insured sought reimbursement of defense fees from the insurer. The court found that the insurer had no duty to defend, stating:
"Only suits for damages are to be defended under the policies involved in the instant case. A criminal complaint does not seek damages. It is penal in nature. Furthermore, the automobile liability and homeowner's insurance policies in the instant case provide that the 'Company shall defend any suit alleging such bodily injury or property damage and seeking damages.'" ( Shelter, 160 Ill. App. 3d at 156.)
Plaintiff asks us to depart from the rule set forth in Shelter on the basis that the Uniform Code of Corrections (Code) provides that a sentencing judge may order that a defendant pay restitution, and in cases where the victim is 65 or older, the judge must order restitution. (730 ILCS 5/5-5-6 (West 1994).) Plaintiff claims that restitution is comparable to damages since the Code provides that the amount of restitution is to be determined by the "actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim" (730 ILCS 5/5-5-6(b) (West 1994).) and the order of restitution is enforceable as a civil judgment for damages (730 ILCS 5/5-5-6(m) (West 1994)).
Plaintiff has produced no evidence suggesting that restitution was sought in the criminal battery complaint that was filed against him. Plaintiff did not provide a copy of the criminal complaint to State Farm when requesting defense and coverage, nor has he provided the court with a copy of the complaint. An appellant has a duty to present the reviewing court with a complete record, and any doubts arising from an incomplete record are therefore resolved against the appellant. ( Firkus v. Firkus (1990), 200 Ill. App. 3d 982, 558 N.E.2d 554, 146 Ill. Dec. 591.) We do not address the issue of whether restitution constitutes damages under plaintiff's insurance policy with State Farm. Because plaintiff has not shown us that restitution was even a possibility in the criminal case, he has shown no potential coverage under the State Farm policy.
The State Farm policy also excludes coverage for personal injury or property damage which is either intended or expected by plaintiff. The offense of battery is defined in ...