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State Farm Fire and Casualty Co. v. Leverton

June 26, 2000

STATE FARM FIRE AND CASUALTY COMPANY, PLAINTIFF-APPELLEE,
v.
GEORGE G. LEVERTON, AS FATHER AND NEXT FRIEND OF TIFFANY NICHOLE LEVERTON, AND GEORGE G. LEVERTON, INDIVIDUALLY, DEFENDANTS-APPELLANTS, AND JEFF PRESSWOOD, DEFENDANT.



Appeal from Circuit Court of Logan County No. 95MR39 Honorable David L. Coogan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendants, George Leverton, as father and next friend of Tiffany Nichole Leverton and individually, appeal from the circuit court's declaratory judgment that State Farm had no duty to indemnify its insured, Jeff Presswood, for injuries that he, Leverton, received during a barroom scuffle between the two men. Leverton argues that State Farm's coverage exclusion for intentional conduct is inapplicable because Presswood's acts were negligent, rather than intentional. We affirm.

I. BACKGROUND

In June 1994, Presswood was in the Alley Bi Saloon in Lincoln, Illinois. Leverton arrived, accompanied by Shannon Follis, Presswood's former girlfriend. Follis approached Presswood and asked him to speak with her outside in the alley. Presswood accompanied Follis outside and stood with his back to the alley door as they spoke. Leverton watched them through the back door, eventually exiting and stating, "havin' a fuckin' problem?" Although Leverton denies being the aggressor, Presswood testified that Leverton shoved him in the back, causing Presswood to bump into Follis. According to Presswood, he turned quickly and, in a backhand motion, swung the beer bottle in his right hand in the direction of the shove. Leverton was struck in the face with the beer bottle and injured. Presswood was charged with aggravated battery after the incident and ultimately convicted.

In November 1994, Leverton filed a two-count civil complaint against Presswood. Count I of the civil complaint alleged that Presswood "violently assaulted" Leverton and "wrongfully struck him *** with a beer bottle," constituting a "willful and malicious" assault and battery. Count II alleged that Presswood negligently swung the beer bottle while in close proximity to Leverton, creating an unreasonably dangerous condition.

Presswood tendered the defense in the civil action to State Farm, his homeowner's insurer. State Farm defended under a reservation of rights and filed this declaratory judgment action. State Farm sought a ruling that it was not required either to defend or indemnify Presswood under his homeowner's policy because Presswood's acts were intentional and excluded from coverage.

State Farm moved for summary judgment and the motion was initially denied. However, on a motion for reconsideration, the circuit court reversed its prior ruling, granting summary judgment to State Farm. On appeal, we reversed and remanded because the ruling was premature. The circuit court was obligated to abstain from deciding the coverage issue in the declaratory judgment action until the culmination of Leverton's civil suit. State Farm Fire & Casualty Co. v. Leverton, 289 Ill. App. 3d 855, 683 N.E.2d 476 (1997).

Leverton's civil case against Presswood proceeded to trial. Before trial, Leverton voluntarily dismissed the count alleging "willful and malicious" assault and battery, leaving only the negligence count at issue. The jury found Presswood at fault, rendering a verdict in the amount of $160,889.66. The jury reduced Leverton's recovery by 10%, finding him contributorily negligent.

Subsequently, the trial court conducted a bench trial in this declaratory judgment action. On June 5, 1998, the court entered judgment in favor of Presswood and against State Farm. After reviewing the record and the testimony at trial, the circuit court concluded that Leverton's injury was "due to Presswood's unreasonable use of force in self-defense and therefore not excluded from coverage." (Emphasis added.) State Farm again moved for reconsideration. The circuit court ultimately agreed with State Farm and vacated its June 5, 1998, order.

The circuit court's order of September 3, 1998, holds that Leverton's injuries were expected or intended and therefore excluded from coverage; Presswood's actions were intentional and not an "accident"; and the facts presented did not constitute an "occurrence" that would trigger coverage. The court denied Leverton's motion to vacate the September 3, 1998, order and this appeal followed.

II. ANALYSIS

The rules of civil procedure permit circuit courts to "make binding declarations of rights" in certain matters, including "the construction of *** [a] contract or other written instrument." 735 ILCS 5/2-701(a) (West 1998). The grant or denial of such declaratory relief is discretionary, and we will only reverse upon a showing of an abuse of discretion. Bodine Electric v. City of Champaign, 305 Ill. App. 3d 431, 435, 711 N.E.2d 471, 474 (1999). "Abuse of discretion" means clearly against logic; the question is not whether the appellate court agrees with the circuit court, but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether, in view of all the circumstances, ...


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