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04/30/97 MASSACHUSETTS BAY INSURANCE COMPANY v.

April 30, 1997

MASSACHUSETTS BAY INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
UNIQUE PRESORT SERVICES, INC.; BRIGITTE PESCIA, ADM'X OF THE ESTATE OF FREDERICK PESCIA, DECEASED; BRIGITTE PESCIA, INDIV.; DANIELLE PESCIA, A MINOR, BY MOTHER AND NEXT FRIEND, BRIGITTE PESCIA; LAURELINE PESCIA, A MINOR, BY HER MOTHER AND NEXT FRIEND, BRIGITTE PESCIA; MARIANNE PESCIA, A MINOR, BY HER MOTHER AND NEXT FRIEND, BRIGITTE PESCIA; JEAN-MARC LEPILLEZ, INDIV.; WANDA LEPILLEZ, INDIV.; KARINE LEPILLEZ, A MINOR, BY HER MOTHER AND NEXT FRIEND, WANDA LEPILLEZ; MELINDA LEPILLEZ, A MINOR, BY HER MOTHER AND NEXT FRIEND, WANDA LEPILLEZ; AND ANNE-CHRISTINE LEPILLEZ, A MINOR, BY HER MOTHER AND NEXT FRIEND, WANDA LEPILLEZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 95--MR--0209. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication May 30, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Geiger, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Plaintiff, Massachusetts Bay Insurance Company (MBI), appeals the trial court's ruling in a declaratory judgment action that MBI has a duty both to defend and to indemnify its insured, Unique Presort Services, Inc. (Unique Presort), in a tort action. MBI contends that the trial court erred in finding that the allegations of the underlying complaint trigger a duty for MBI; erred in relying on unpublished Rule 23 orders in making its ruling; erred in ruling against MBI in its motion for judgment on the pleadings by failing to follow established Illinois precedent; and erred in finding both a duty to defend and a duty to indemnify. We reverse.

This action arises out of an underlying tort action in which the insured, Unique Presort, was sued by members of two families who were involved in a motor vehicle collision with a truck owned by Unique Presort and operated by a driver employed by Unique Presort. The families' complaint alleges that the truck driver was under the influence of cannabis at the time of the collision. The complaint alleged in count XXVII that Unique Presort was liable to the families because it failed to conduct federally mandated drug tests of the truck driver. See 49 C.F.R. ยง 5391.83(a) (1993). The question on appeal is whether count XXVII triggers MBI's duty to defend under its policy with Unique Presort.

The insurance policy, a commercial general liability policy, carried an express automobile accident exclusion provision. When Unique Presort was served with notice of the underlying action, it tendered requests for defense to both its vehicle insurer and to MBI. MBI filed the instant action seeking a declaratory judgment pursuant to the section 2--701 of the Code of Civil Procedure (735 ILCS 5/2--701 (West 1992)) that it owed no duty to defend or indemnify Unique Presort in the underlying action because it arose out of an automobile collision. Unique Presort argued in response that the count alleging liability under the federal drug-testing statute was not automatically excluded by the auto accident provision and thus, at a minimum, triggered MBI's duty to defend.

MBI filed a motion for judgment on the pleadings. At the hearing on the motion, MBI presented pertinent appellate authority supporting its position, and Unique Presort endeavored to distinguish that authority.

The court stated that it had knowledge of certain Rule 23 orders which disclosed this court's position on the legal issue raised in the motion and entered an order denying the motion for judgment on the pleadings.

At the hearing on a motion to reconsider, MBI argued the impropriety of the court relying on Rule 23 orders in denying the motion for judgment on the pleadings.

Counsel for MBI then asked the court to cite for the record the particular decisions upon which it relied. The court responded: "I can't give you the cases right off the top of my head, but I think that is the state of the law."

On appeal, MBI contends that the trial court erred in finding that the insurance contract at issue made MBI liable for coverage with regard to the underlying complaint; erred in failing to follow established Illinois precedent in denying MBI's motion for judgment on the pleadings; erred in relying on unpublished orders in rendering its judgment; erred in finding MBI liable to defend and indemnify Unique Presort; and erred in finding MBI liable to indemnify Unique Presort because the issue of the duty to indemnify was "premature" until liability was adjudicated in the underlying action.

A motion for judgment on the pleadings is brought pursuant to section 2--615(e) of the Code of Civil Procedure (735 ILCS 5/2-615 (e) (West 1992)). On a motion for judgment on the pleadings, if the pleadings put in issue one or more material facts, evidence must be taken to resolve such issues, and judgment may not be entered on the pleadings. In re Estate of Davis, 225 Ill. App. 3d 998, 1000, 168 Ill. Dec. 40, 589 N.E.2d 154 (1992). On review, the court must determine whether any genuine issue of material fact exists and, if not, whether the moving party was indeed entitled to judgment as a matter of law. State Farm Fire & Casualty Co. v. Kleckner, 194 Ill. App. 3d 371, 375, 141 Ill. Dec. 231, 551 N.E.2d 224 (1990). Our review of motions brought pursuant to section 2--615 of the Code of Civil Procedure is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 189 Ill. Dec. 31, 619 N.E.2d 732 (1993).

As both parties correctly note, an insurer's duty to defend arises if the complaint alleges facts that fall within, or potentially within, the policy's coverage. Oakley Transport, Inc. v. Zurich Insurance Co., 271 Ill. App. 3d 716, 719, 208 Ill. Dec. 177, 648 N.E.2d 1099 (1995). It is well settled that the allegations of the complaint are dispositive of the insurer's duty to defend, and not the findings of the underlying litigation. Oakley, 271 Ill. App. 3d at 719. However, the suggestion made by Unique Presort that the trial court may consider only the facial allegations and may not consider the intent of the statute under which the count is brought is an overstatement. See Oakley, 271 Ill. App. 3d at 719 n.2; Fidelity & Casualty Co. v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 77 Ill. Dec. 848, 461 N.E.2d 471 (1983). An insurance policy is not intended to be interpreted in a factual vacuum and without regard to the purpose for which the insurance policy was written. Oakley, 271 Ill. App. 3d at 726. Rather, the court must determine whether any genuine issue of material fact ...


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