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11/17/97 INTERNATIONAL INSURANCE COMPANY v. ALLIED

November 17, 1997

INTERNATIONAL INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
ALLIED VAN LINES, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 92 CH 5250. Honorable Margaret Stanton McBride, Judge Presiding.

Released for Publication January 22, 1998.

The Honorable Justice O'brien delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Former employees Gerald Oberg, Nicholas Tautz, and Steven Adams filed a class action complaint against Allied Van Lines, Inc. (Allied) alleging Allied terminated their employment in violation of the Age Discrimination In Employment Act of 1967 (ADEA) (29 U.S.C. ยง 626 (1994). Allied tendered the matter to its insurer, International Insurance Company (International), for defense pursuant to its comprehensive general liability policy (CGL policy) International denied coverage and filed the instant action seeking a declaration of the parties' rights and liabilities under the CGL policy. Following a hearing on cross-motions for summary judgment, the trial court entered summary judgment in favor of International and against Allied. Allied appeals. We affirm.

Summary judgment is proper only where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996). We review the matter de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992).

As a general rule, International has a duty to defend Allied unless it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the case within, or potentially within, the policy's coverage." (Emphasis added.) Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 439, 641 N.E.2d 395, 204 Ill. Dec. 171 (1994); Thornton v. Paul, 74 Ill. 2d 132, 384 N.E.2d 335, 23 Ill. Dec. 541 (1978) (reaffirming Illinois' adherence to the general rule). Here, however, the procedural posture of the case--an appeal from a grant of summary judgment-permits this court to look beyond the face of the complaint and take into consideration the affidavits, depositions, admissions, exhibits, and pleadings on file. See 735 ILCS 5/2-1005(c) (West 1996) (in rendering summary judgment, court should take into consideration affidavits, depositions, admissions, exhibits, and pleadings on file and construe them against the movant); Associated Indemnity Co. v. Insurance Co. of North America, 68 Ill. App. 3d 807, 386 N.E.2d 529, 25 Ill. Dec. 258 (1979) (in appeal from grant of summary judgment in favor of insurer, court considered "true but unpleaded facts" indicating the underlying claim was at least potentially within the policy's coverage); Kufalk v. Hart, 636 F. Supp. 309 (N.D. Ill. 1986) (in appeal from grant of summary judgment in favor of insurer, court considered allegations in discovery deposition taken in the underlying action indicating the underlying claim was at least potentially within the policy's coverage).

International's CGL policy provided the following relevant coverage:

"Coverage A. Bodily Injury and Property Damage Liability

1. Insuring Agreement.

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damages' to which this insurance applies. *** This insurance applies only to 'bodily injury' *** caused by an 'occurrence.'"

The policy defined "bodily injury" as "bodily injury, sickness or disease sustained by a person" (hereinafter, "bodily injury coverage").

The CGL policy also included an endorsement that enhanced the policy's liability coverage. It added the following:

"A. Employee Benefits Liability ...


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