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Pekin Insurance Company v. Willett

December 30, 1998

PEKIN INSURANCE COMPANY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
ROSS WILLETT, D/B/A PERSONAL TOUCH POOL SERVICE, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT (ROBERT SIMMONS, DEFENDANT- APPELLEE).



Appeal from the Circuit Court of Lake County. No. 97--MR--412 Honorable Henry C. Tonigan III, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The plaintiff, Pekin Insurance Company (Pekin), appeals the granting of summary judgment in favor of the defendants, Ross Willett, doing business as Personal Touch Pool Service, Inc. (Willett), and Robert Simmons (Simmons), and the denial of the plaintiff's motion for judgment on the pleadings in a declaratory judgment action. Further, Willett cross-appeals the denial of his motion for attorney fees. Willett has also filed a motion for attorney fees incurred on appeal. We took this motion with the case. We reverse in part, affirm in part, and deny Willett's motion.

The following facts are taken from the pleadings. On May 1, 1996, Willett entered into a contract with Simmons to service, paint, clean, and prepare for summer use the in-ground swimming pool at Simmons's home. The agreement provided that Willett was to empty the pool, paint it, and fill it with water and the requisite chemicals so that it was ready for use. After Willett painted the pool and before he filled the pool with water, a heavy rainstorm caused the pool to push up out of the ground.

On May 16, 1997, Simmons filed a two-count complaint against Willett alleging negligence and breach of contract. The complaint alleged that Willett was negligent in the performance of painting and maintenance work on Simmons's swimming pool in that Willett either failed to understand and recognize the dangers associated with allowing the pool to remain empty for a significant period of time and take appropriate precautionary measures to prevent damage to the structure and/or failed to fill the pool at the earliest opportunity. The complaint also alleged that, as a result of Willett's failure to timely fulfill his painting and maintenance contract and protect the swimming pool during the work performed on it, the empty pool was severely damaged when it was pushed out of the ground on May 20, 1996.

Willett tendered his defense to Pekin under a commercial general liability insurance policy issued by Pekin to Willett. The insurance policy provided coverage for "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage'" caused by an "occurrence." An "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general conditions." Pekin denied coverage and filed a complaint for declaratory judgment against Willett and Simmons. Pekin denied coverage based on two exclusions contained in the policy.

On November 25, 1997, Willett filed an answer to Pekin's complaint for declaratory judgment and a motion for summary judgment and attorney fees. In the answer and motion, Willett admitted that he had not completed the painting and maintenance work on Simmons's pool when the pool was damaged on May 20, 1996. Simmons filed a motion adopting Willett's motion for summary judgment and attorney fees. In light of Willett's admission that he had not completed the work when the swimming pool was pushed out of the ground, Pekin filed a cross-motion for judgment on the pleadings pursuant to section 2--615(e) of the Code of Civil Procedure. 735 ILCS 5/2--615(e) (West 1996).

The trial court denied Pekin's motion for judgment on the pleadings and granted Willett's motion for summary judgment. The trial court found that the damage to the pool was covered under the Pekin policy but denied Willett's motion for attorney fees. Pekin appeals the trial court's denial of its motion and the granting of Willett's and Simmons's motion for summary judgment. Willett cross-appeals the trial court's denial of his motion for attorney fees. Simmons filed a notice of appeal challenging the trial court's denial of attorney fees but failed to file a brief discussing the issue.

"Judgment on the pleadings is only appropriate when an examination of the pleadings discloses the absence of any material issue of fact, and the rights of the parties can be declared as a matter of law." Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 786 (1997).

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). Insurance policies are contracts and, as such, must be interpreted in accordance with the rules of contract construction. Willison v. Economy Fire & Casualty Co., 294 Ill. App. 3d 793, 797 (1998). Because the construction of an insurance policy is a question of law, it is subject to de novo review. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479-80 (1997).

It is well established that, when construing the language of an insurance policy, courts must ascertain and give effect to the intention of the parties as expressed in their agreement. Koloms, 177 Ill. 2d at 479. Thus, courts must accord terms contained in the policy their plain and ordinary meaning and apply those terms as written unless such application contravenes public policy. State Farm Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436, 441-42 (1998). In addition, a court must construe exclusions liberally in favor of the insured and against the insurer. Villicana, 181 Ill. 2d at 442. However, if an exclusion is clear and unambiguous and does not contravene public policy, it must be applied as written. Safeco Insurance Co. v. Seck, 225 Ill. App. 3d 397, 400 (1992).

The standards by which a court determines whether an insurer is obligated to defend its insured are clear. Ordinarily, a court looks to the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy. Koloms, 177 Ill. 2d at 479. The insurer's duty to defend arises if the facts alleged in the complaint fall within, or potentially within, the language of the policy. Koloms, 177 Ill. 2d at 479.

Willett and Simmons do not argue that the exclusions at issue in this case are ambiguous. After reviewing the exclusions, we determine that they are clear and unambiguous. Thus, we must apply the plain and ordinary meaning of the language contained in the exclusions. See Seck, 225 Ill. App. 3d at 400.

Applying the plain and ordinary meaning of the exclusions at issue, it is clear that both sections j(5) and j(6) exclude coverage for the incident in question in this case. Section j(5) of ...


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