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Westfield National Insurance Co. v. Continental Community Bank and Trust Co.

December 23, 2003

WESTFIELD NATIONAL INSURANCE COMPANY, PLAINTIFF-APPELLEE,
v.
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, AS NEXT FRIEND AND GUARDIAN OF THE ESTATES OF J.S. AND S.S., MINORS, DEFENDANT-APPELLANT (JILL WOOD VALDEZ, DEFENDANT).



Appeal from the Circuit Court of Kane County. No. 01-MR-49 Honorable Michael J. Colwell, Judge, Presiding.

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

UNPUBLISHED

In 2001 plaintiff, Westfield National Insurance Company (Westfield), brought a declaratory judgment action seeking a judicial determination that it was not obligated to defend or indemnify its insured, Jill Wood Valdez (the aunt), in a civil suit filed against her by defendant, Continental Community Bank and Trust Company, as next friend and guardian of the estates of J.S. and S.S., minors (collectively, the minors) (No. 00-LK-625). The underlying civil suit, filed in December 2000, arose from allegations that, between early 1995 and continuing to November 1996, the aunt's husband, Librado Valdez, sexually molested the minors during their visits to the Valdez home. Valdez later pleaded guilty and was criminally convicted for these incidents (No. 96-CF-2395). The minors appeal the trial court's order granting summary judgment in favor of Westfield. The aunt has not appealed the trial court's ruling and is not a party to this appeal. We affirm.

In the underlying civil suit, the minors alleged that their aunt owed "a duty to protect each child from harm and danger which she knew or should have known existed." The minors further alleged that, notwithstanding that duty, the aunt "was guilty of the following wrongful acts of commission or omission":

"(a) Report to the parents of [the minors] the sexual molesting of [the minors] which she knew or should have known because of the conduct of her husband ***[;]
(b) Advised the parents of [the minors] of the prior criminal involvement with minors involving *** Valdez in the State of Florida;
(c) Report to the parents of [the minors] inappropriate physical encounters which were occurring involving [the minors] and *** Valdez;
(d) Desist from bringing [the minors] to sit on the lap of *** Valdez;
(e) Desist from creating a sexually charged atmosphere by promoting a collective viewing of movies which involved naked actors and actresses;
(f) Desist during said movie viewings the encouragement of comments involving the naked bodies of actresses applicable to the pubescent and pre-pubescent [minors];
(g) Ascertain the activities of *** Valdez at such times as he would leave the marital bedroom and visit the bed of [the minors];
(h) Desist from directing *** [the minors] to sit on the lap of the partially clad *** Valdez for the purposes of keeping him warm;
(i) Investigate reason why she discovered [one of the minors] locked in the bathroom and crying after an encounter with *** Valdez;
(j) Desist from providing and encouraging [the minors] from wearing minimal and provocative clothing when interacting with *** Valdez;
(k) Desist from the isolating of [the minors] from each other so as to secure a one-on-one intimacy with *** Valdez." The ...

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