Appeal from the Circuit Court of Du Page County. No. 02-MR-817. Honorable Bonnie M. Wheaton, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendant, Robert Long, appeals from an order of the circuit court of Du Page County granting judgment on the pleadings (735 ILCS 5/2- 615(e) (West 2002)) in favor of plaintiffs, Westfield National Insurance Company and Westfield Insurance Company. Plaintiffs filed this suit against defendant, their insured, for a declaration (see 735 ILCS 5/2- 701 (West 2002)) that they have no duty to defend or indemnify him in an underlying suit alleging defendant's liability under the Drug Dealer Liability Act (the Act) (740 ILCS 57/5 et seq. (West 2002)). We affirm.
On May 13, 2002, Janice Aeschlimann (Janice), the plaintiff in the underlying suit, filed a first amended complaint (the Aeschlimann complaint) against defendant and others for acts that led to the death of Sara L. Aeschlimann (Sara), Janice's daughter. The Aeschlimann complaint alleged that on May 14, 2000, Garrett Harth (Harth) placed a methamphetamine drug in Sara's drink, causing a toxic overdose that caused her death. Count VII of the Aeschlimann complaint was directed against defendant and alleged that defendant "knowingly participated in the chain of distribution of an illegal drug that was actually digested by the [p]laintiff's decedent, Sara L. Aeschlimann." Upon being sued, defendant tendered the suit to plaintiffs for defense and indemnification. Westfield National Insurance Company insured defendant under a homeowner's policy that was in effect at the time of Sara's death. Westfield Insurance Company insured defendant under a personal umbrella policy, also in effect at the time of Sara's death. Both policies contained the following exclusion:
"We do not provide coverage for: Bodily injury *** arising out of the use, sale, manufacture, delivery, transfer or possession by any person of a Controlled Substance(s) as defined by the Federal Food and Drug Law."
Plaintiffs filed their declaratory judgment suit on August 13, 2002, seeking a declaration that the above exclusion, among others enumerated in the policies, relieved them from their duty to defend or indemnify defendant. After defendant filed an answer to the declaratory judgment complaint, plaintiffs filed a motion for judgment on the pleadings. The trial court granted judgment on the pleadings on the basis of the drug exclusion, ruling that the allegations against defendant in the Aeschlimann complaint "fall squarely" within this exclusion. Defendant filed a timely appeal.
A motion for judgment on the pleadings under section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2000)), like a motion for summary judgment, is limited to the pleadings. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999). Judgment on the pleadings is proper if the admissions in the pleadings disclose that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Employers Insurance, 186 Ill. 2d at 138. For purposes of resolving the motion, the court must consider as admitted all well-pleaded facts set forth in the pleadings of the nonmoving party and the fair inferences drawn therefrom. Employers Insurance, 186 Ill. 2d at 138. The court must also examine the pleadings to determine whether an issue of material fact exists and, if not, determine whether the controversy can be resolved solely as a matter of law. Employers Insurance, 186 Ill. 2d at 138. Copies of written instruments attached to a pleading as an exhibit are considered a part of the pleading. Employers Insurance, 186 Ill. 2d at 139. Our review of the disposition of a case on judgment on the pleadings is de novo. Mount Vernon Fire Insurance Co. v. Heaven's Little Hands Day Care, 343 Ill. App. 3d 309, 314 (2003).
Insurance policies are to be liberally construed in favor of coverage. Mount Vernon, 343 Ill. App. 3d at 314. The duty of an insurer to defend its insured is much broader than its duty to indemnify. Mount Vernon, 343 Ill. App. 3d at 314. When determining whether the insurer has a duty to defend, the court must compare the allegations contained in the underlying complaint to the language contained in the policy. Mount Vernon, 343 Ill. App. 3d at 314. An insurer has no duty to defend its insured if the underlying complaint alleges facts that, if true, would exempt the insured from coverage under the policy. American Family Mutual Insurance Co. v. Chiczewski, 298 Ill. App. 3d 1092, 1094 (1998).
Defendant contends that the drug exclusion in the insurance policies does not apply because the allegations of the Aeschlimann complaint do not directly link defendant to the act that caused Sara's death. The Aeschlimann complaint seeks to hold defendant liable in money damages under the Act. One of the purposes of the Act is to provide a civil remedy for damages to persons in a community injured as a result of illegal drug use. 740 ILCS 57/5 (West 2002). To foster this purpose, the legislature provided that "[a] person who knowingly participates in the illegal drug market within this State is liable for civil damages as provided in this Act." 740 ILCS 57/20(a) (West 2002). The Act defines "illegal drug market" as "the support system of illegal drug related operations, from production to retail sales, through which an illegal drug reaches the user." 740 ILCS 57/15 (West 2002). "Illegal drug" means a drug whose distribution is a violation of State law. 740 ILCS 57/15 (West 2002). We are not called upon to decide whether defendant is liable under the Act, but whether he would potentially be covered by plaintiffs' insurance policies. See Empire Fire & Marine Insurance Co. v. Clarendon Insurance Co., 267 Ill. App. 3d 1022,1026 (1994).
The Aeschlimann complaint alleges the following against defendant:
"2. Defendant, Robert Long, knowingly distributed in the chain of distribution an illegal drug that was actually digested by the [p]laintiff's decedent, Sara L. Aeschlimann.
3. Defendant, Robert Long, knowingly participated in the chain of distribution of an illegal drug that was actually digested by the ...