United States District Court, C.D. Illinois, Urbana Division
December 8, 2004.
CINCINNATI INSURANCE COMPANY, Plaintiff,
TIMOTHY ALLEN and SEAN, BLANKENSHIP, Defendants.
The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
This case is before the court for ruling on cross motions for
judgment on the pleadings. Following this court's careful review
of the documents submitted by the parties and the arguments of
the parties, this court rules as follows: (1) Defendant Timothy
Allen's Motion for Judgment on the Pleadings (#5) is DENIED; and
(2) Plaintiff's Cross-Motion for Judgment on the Pleadings (#9)
On October 22, 2004, Plaint iff, Cincinnati Insurance Company,
filed its Complaint for Declaratory Judgment (#1) against
Defendants, Timothy Allen and Sean Blankenship. This court's
jurisdiction is based upon diversity of citizenship. Plaintiff
alleged that it is an Ohio corporation with its principal place
of business in Ohio. Plaintiff also alleged that it issued a
Homeowner's Policy and Umbrella Policy to Defendant Allen, a
citizen of Illinois. Plaintiff further alleged that Defendant
Blankenship, also a citizen of Illinois, filed a Complaint
against Allen in the circuit court of Macon County. Plaintiff sought a declaration from this court
that it has no coverage obligation under the policies it issued
to Allen, including to defend, indemnify, or reimburse Allen,
with respect to the underlying lawsuit filed by Blankenship.
Plaintiff at tached a copy of the underlying Complaint at Law
for Battery filed by Blankenship. In his Complaint, Blankenship
alleged that, on November 15, 2003, he was in Oreana, Illinois,
and was sitting in his vehicle in the driveway of a neighbor of
Allen, speaking with Allen's wife, Kathy Allen, and other
individuals. Blankenship further alleged that Allen approached
him and, through the open door of the vehicle, reached in and
slapped Blankenship. Blankenship also alleged that Allen then
pushed his wife back towards their residence. Blankenship alleged
that he exited his vehicle and Allen punched and struck him,
causing him to fall and strike his head on the driveway,
resulting in a significant brain injury. Blankenship alleged that
Allen's conduct was a direct and proximate cause of his injury
and constituted a willful and wanton battery upon him.
Blankenship alleged that he has been permanently injured and
disabled and has suffered significant damages, including lost
earnings. In his Complaint, Blankenship sought compensatory and
exemplary damages from Allen.
Plaintiff also attached a copy of the Homeowner's Policy and
Umbrella Policy it had issued to Allen. Both policies provided
that Plaintiff would pay damages for "bodily injury" arising out
of an "occurrence." The policies also both defined an
"occurrence" as an "accident" which resulted in bodily injury.
The Homeowner's policy specifically excluded coverage for "bodily
injury" which "may reasonably be expected to result from the intentional or
criminal acts of one or more `insureds' or which is in fact
expected or intended by one or more `insureds', even if the
injury or damage is of a different degree or type than actually
expected or intended." The policy stated that this exclusion did
not apply when the "bodily injury" resulted from "the use of
reasonable force to protect persons or property." The Umbrella
Policy provided coverage for damages in excess of the coverage
provided by the underlying Homeowner's Policy or for damages
excluded or not covered by the Homeowner's Policy. However, the
Umbrella Policy included substantially identical provisions
excluding expected or intended acts unless resulting from the use
of reasonable force to protect persons or property.
On November 5, 2004, Allen filed his Answer to Complaint for
Declaratory Judgment (#4). Allen attached a copy of his Answer to
Blankenship's Complaint against him in which he alleged, as an
affirmative defense, that he struck Blankenship "only as a matter
of self-defense after first being struck in the face by Sean
Blankenship." In addition, on November 5, 2004, Allen filed a
Motion for Judgment on the Pleadings (#5). Allen argued that,
under the terms of his policy, Plaintiff has a duty to defend him
in the underlying lawsuit filed by Blankenship.
On November 19, 2004, Plaintiff filed a Cross-Motion for
Judgment on the Pleadings (#9) and a Memorandum (#10) in support
of its Motion and in opposition to Allen's Motion. Plaintiff
argued that Allen's Motion should be denied and its Cross-Motion
should be granted because the allegations in the underlying
Blankenship case do not fall within the coverage of the policies
because they do not allege an "occurrence" and because they are excluded
by the intentional acts exclusion of the policies.
Allen filed his Response to Plaintiff's Cross-Motion (#13) on
December 1, 2004. Allen stated that the pleadings in the
underlying case have evoked the "self-defense" exception to the
intentional acts exclusion. Allen therefore contended that
Plaintiff has the duty to defend him in the Blankenship lawsuit.
Defendant Blankenship has not filed an answer in this case or any
response to Plaintiff's Cross-Motion for Judgment on the
On December 7, 2004, Plaintiff filed a Motion for Leave to File
Reply in Opposition to Allen's Response to [Plaintiff's]
Cross-Motion for Judgment on the Pleadings (#14). This court
allowed the Motion and Plaintiff's Reply (#15) was filed in this
I. STANDARD FOR JUDGMENT ON THE PLEADINGS
After the close of pleadings, a party may file a motion for
judgment on the pleadings under Rule 12(c) of the Federal Rules
of Civil Procedure to attempt to dispose of the case on the basis
of the underlying substantive merits. See Alexander v. City of
Chicago, 994 F.2d 333, 336 (7th Cir. 1993); Crowley v.
McKinney, 2002 WL 31101287, at *1 (N.D. Ill. 2002). The
appropriate standard for such a motion is that applicable to
summary judgment, except that the court may consider only the
contents of the pleadings. See Alexander, 994 F.2d at 336;
Ohio Cas. Ins. Co. v. PetsMart, Inc., 2003 WL 22995160, at *2
(N.D. Ill. 2003). Judgment on the pleadings is proper where the
pleadings raise only questions of law and no questions of material fact.
Utica Mut. Ins. Co. v. David Agency Ins., Inc., 327 F. Supp. 2d 922,
926 (N.D. Ill. 2004). A Rule 12(c) motion should not
be granted unless no genuine issues of material fact remain to be
resolved and unless the moving party is entitled to judgment as a
matter of law. See Alexander, 994 F.2d at 336; Memisovski v.
Maram, 2004 WL 1878332, at *2 n. 3 (N.D. Ill. 2004); Fid. &
Guar. Life Ins. Co. v. Payne, 2003 WL 22143249, at *2 (N.D. Ill.
2003). In this case, both sides essentially agree on the material
facts and raise only issues of law as to Plaintiff's duty to
defend and indemnify Allen. See Utica Mut. Ins. Co.,
327 F. Supp. 2d at 926. In addition, the parties agree that Illinois law
applies. See Utica Mut. Ins. Co., 327 F. Supp. 2d at 926.
II. APPLICABLE LAW
Under Illinois law, it is well settled that an "insurer's duty
to defend its insured is much broader than its duty to
indemnify." Utica Mut. Ins. Co., 327 F. Supp. 2d at 926,
quoting Outboard Marine Corp. v. Liberty Mut. Ins. Co.,
607 N.E.2d 1204, 1220 (Ill. 1992). "Whether an insurer must defend
the insured is a question resolved by comparing the allegations
of the underlying complaint against the insured to the insurance
policy." Conn. Indem. Co. v. DER Travel Serv., Inc.,
328 F.3d 347, 349 (7th Cir. 2003), citing Lapham-Hickey Steel Corp.
v. Prot. Mut. Ins. Co., 655 N.E.2d 842, 847 (Ill. 1995); see
also Cincinnati Ins. Co. v. Dawes Rigging & Crane Rental,
Inc., 321 F. Supp. 2d 975, 980 (C.D. Ill. 2004). As a general
rule, it is only the allegations of the underlying complaint,
considered in the context of the relevant policy provisions, that
should determine whether an insurer owes a duty to defend an action brought against the
insured. Lexmark Int'l, Inc. v. Transp. Ins. Co.,
761 N.E.2d 1214, 1221 (Ill.App.Ct. 2001). The insurer has an obligation to
defend if any part of the underlying lawsuit could require it to
indemnify the insured, even if the complaint alleges several
causes of action and only one of those may be covered. Utica
Mut. Ins. Co., 327 F. Supp. 2d at 926; Skylink Techs., Inc. v.
Assurance Co. of Am., 2004 WL 42365, at *4 (N.D. Ill. 2004). The
legal labels used by a plaintiff in the underlying case are not
dispositive as to whether a duty to defend exists. Conn. Indem.
Co., 328 F.3d at 349; Cincinnati Ins. Co. v. E. Atl. Ins. Co.,
260 F.3d 742, 745 (7th Cir. 2001). However, an insurer does
not have a duty to defend where it is "clear from the face of the
underlying complaint that the allegations fail to state facts
which bring the case within, or potentially within, the policy's
coverage." Conn. Indem. Co., 328 F.3d at 349, quoting U.S.
Fid. & Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d 926, 930
The construction of an unambiguous insurance policy is a
question of law, and the policy's terms are to be applied as
written unless those terms are contrary to public policy. Am.
Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 448-49 (Ill.
2000); see also Hawkeye-Security Ins. Co. v. Bob Propheter
Constr., L.L.C., 2002 WL 31176183, at *5 (N.D. Ill. 2002).
Therefore, a determination of the rights and obligations under an
insurance policy is an appropriate subject for disposition as a
matter of law. See Skylink Techs., Inc., 2004 WL 42365, at
*3, citing Lexmark Int'l, Inc., 761 N.E.2d at 1220.
Unambiguous terms will be interpreted using the plain ordinary
meaning of the terms and will be given effect as written. Dawes
Rigging, 321 F. Supp. 2d at 980. Well-settled doctrine requires this court to liberally construe the underlying
complaint in favor of the insured and to resolve any doubt
arising during the comparison in favor of the insured. Conn.
Indem. Co., 328 F.3d at 351; Dawes Rigging,
321 F. Supp. 2d at 980.
III. ALLEN'S MOTION
In his Memorandum of Law in Support of his Motion for Judgment
on the Pleadings, Allen contends that Plaintiff has a duty to
defend him in the underlying case because he has asserted the
affirmative defense of self-defense. Allen relies on State Farm
Fire & Cas. Co. v. Leverton, 683 N.E.2d 476 (Ill.App.Ct.
1997). In Leverton, the insured, Jeff Presswood, was convicted
of the aggravated battery of George Leverton. Leverton filed a
civil complaint against Presswood, alleging both battery and
negligence. Presswood's insurance company, State Farm Fire &
Casualty Company (State Farm), filed a declaratory judgment
action seeking a declaration that it was not required either to
defend or indemnify Presswood. The trial court granted summary
judgment in State Farm's favor, but the Illinois Appellate Court,
Fourth District, reversed. The court noted that "[w]here bona
fide disputes arise over the issue of negligence versus
intentional conduct for indemnification purposes, the tort
litigation should be resolved before the court decides the
coverage issue in a declaratory judgment action." Leverton,
683 N.E.2d at 478. The court further noted that Leverton's complaint,
in addition to alleging assault and battery, alleged negligence
in that Presswood "swung a beer bottle while in close proximity
to [Leverton], creating an unreasonably dangerous condition."
Leverton, 683 N.E.2d at 478. The court noted that such "a
theory of negligent use of force in self-defense has been recognized in previous cases."
Leverton, 683 N.E.2d at 478. The court then stated:
Thus, in the present case a bona fide dispute existed
over whether Presswood's intentional act of striking
Leverton constituted an unreasonable use of force in
self-defense. As resolution of the issue of
negligence versus intentional conduct for coverage
purposes would decide "ultimate facts upon which
recovery is predicated" in Leverton's civil suit, the
trial court should have abstained from deciding the
coverage issue in the declaratory judgment action
until the culmination of Leverton's civil suit.
Leverton, 683 N.E.2d at 478 (citation omitted). The court
concluded by stating that it could not say as a matter of law
that there was no duty to indemnify and, therefore, could not
find there was no duty to defend. Leverton, 683 N.E.2d at 479.
In response, Plaintiff contends that Leverton is
distinguishable because, in this case, there are no allegations
in the underlying complaint of negligent or accidental conduct by
Allen. Plaintiff argues that the allegations in Blankenship's
Complaint against Allen reflect a series of deliberate,
intentional actions by Allen. Plaintiff notes that, in fact,
Blankenship alleged that Allen acted intentionally, willfully and
wantonly. Plaintiff argues that, as a matter of law,
Blankenship's battery claim against Allen is not covered by the
Policies. Plaintiff relies on State Farm Fire & Cas. Co. v. Leverton
(Leverton II), 732 N.E.2d 1094 (Ill.App.Ct. 2000). In
Leverton II, the Illinois Appellate Court, Fourth District,
affirmed the trial court's decision to grant State Farm a
declarat ory judgment that it had no duty to indemnify Presswood
for the injuries Leverton received. After the original Leverton
case was decided, Leverton's civil case against Presswood
proceeded to trial. Prior to trial, Leverton volunt arily
dismissed the count alleging "willful and malicious" assault and
battery, leaving only the negligence count of his complaint.
Leverton II, 732 N.E.2d at 1096. The jury found Presswood at
fault and awarded damages in the amount of $160,889.66. The jury
also reduced Leverton's recovery by 10%, finding him
contributorily negligent. The circuit court, in concluding that
State Farm had no duty to indemnify Presswood, found 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." Leverton II,
732 N.E.2d at 1096. As noted, the appellate court affirmed. The court
first found that the provisions of the insurance policy which
defined "occurrence" as an "accident" which results in bodily
injury and which excluded coverage where the bodily injury was
"either expected or intended by an insured" were not ambiguous.
Leverton II, 732 N.E.2d at 1097. The court noted that personal
liability insurance cont racts typically contain exclusionary
clauses for intentional conduct because "an agreement to
indemnify against intentional conduct would, as a general rule,
be contrary to public policy and unenforceable." Leverton II,
732 N.E.2d at 1097. At trial, Presswood testified that he swung as a reflex, in
response to Leverton's shove and "simply swung the beer bottle in
an effort to get whoever it was that shoved him to move away."
Leverton II, 732 N.E.2d at 1098. Therefore, according to
Presswood, his acts were intentional, but he was merely defending
himself. Leverton II, 732 N.E.2d at 1098. The court noted, as
it had in its earlier Leverton decision, that the theory of
negligent use of force in self-defense has been recognized in
decisions of Illinois courts. Leverton II, 732 N.E.2d at 1098.
However, the court further noted that those cases were
distinguishable because they "did not involve the int erp
retation of an exclusionary clause in an insurance policy."
Leverton II, 732 N.E.2d at 1098. The court also noted that
"[u]ltimately, an exclusionary clause in an insurance policy
should be interpreted reasonably." Leverton II,
732 N.E.2d at 1098. The court stated:
In our prior opinion in this case, we noted that
while the allegations that Presswood "negligently"
swung the beer bottle and hit Leverton in the face
were "weak," we could not say as a matter of law that
State Farm had no duty to indemnify. Having reviewed
the record again, as well as the evidence presented
on remand, we find that the facts do not support
Leverton's theory of the case.
. . .
Based upon the evidence presented, we find that
Leverton's injuries were not the result of an
accident. Rather, they were the natural and ordinary consequence of Presswood's intentional act
of swinging at someone with a beer bottle in hand.
The evidence is insufficient to support any finding
that Presswood's conduct would trigger coverage as
negligent self-defense. Further, we cannot find that
the parties reasonably intended to insure Presswood
for injuries that he inflicted upon others during
Leverton II, 732 N.E.2d at 1099 (citation omitted).
This court agrees with Plaintiff that, in Leverton II, the
court concluded that a claim for damages arising out of a battery
was not covered by the insurance policy. This court also notes
that the court in Leverton II questioned its prior decision in
Leverton because the cases relied on in that case, which
recognized the possibility of coverage based upon negligent
self-defense, did not involve an exclusion for expected or
intended acts by the insured.*fn1
In this case, the allegations of the Blankenship Complaint are
that Allen walked over and struck Blankenship while he was in his
vehicle and, when Blankenship exited his vehicle, Allen punched
and struck him, causing him to fall and strike his head on the
driveway. Unlike the situation in Leverton, Blankenship's
Complaint does not include any allegations of negligent conduct
on the part of Allen. For this reason, this court concludes that
Allen's reliance on Leverton is misplaced. See Leverton, 683 N.E.2d at 479 (complaint essentially
alleged the unreasonable use of force in selfdefense). Based upon
the Complaint, there is no bona fide dispute in this case as to
whether Allen acted negligently or intentionally. Cf. Country
Mut. Ins. Co. v. Hagan, 698 N.E.2d 271, 281 (Ill.App.Ct.
1998); Leverton, 683 N.E.2d at 478-79. Therefore, this court
does not need to wait for the tort litigation to be resolved
before deciding the coverage issue in a declaratory judgment
action. Accordingly, unlike Leverton, there is no basis for
this court to find Plaintiff has a duty to defend Allen. For this
reason, Allen's Motion for Judgment on the Pleadings (#5) is
IV. PLAINTIFF'S CROSS-MOTION
In its Cross-Motion for Judgment on the Pleadings (#9), Plaint
iff argues that this court should enter judgment on the pleadings
and enter an order declaring that the policies provide no
coverage for the Blankenship case and that Plaintiff has no duty
to defend or indemnify Allen with respect to the Blankenship
case. In its Memorandum, Plaintiff argues that, based upon
Leverton II, a claim of self-defense does not establish
coverage because an insured acting in self-defense is still
acting with intent to harm. Plaintiff also again points out that,
under Illinois law, this court should only consider the
allegations of the underlying complaint in determining whether it
owes a duty to defend.
In his Response, Allen again cited Leverton and argues that,
because he has alleged that he acted in self-defense, Plaintiff
has a duty to defend him. He argues that "self-defense is an
accident in the sense that it was created by forces other than
the acts of the insured." In its Reply, Plaintiff argues that, contrary to Allen's argument, self-defense is not an
"accident" and is, in fact, an intentional act excluded by the
language of the policies. Plaintiff also again argues that this
court must look only at the allegations of the Complaint which
do not include any allegations of selfdefense. This court agrees.
This court agrees with the court in Leverton II that the
policy provisions at issue in this case are not ambiguous.
Therefore, the policy provisions will be interpreted using the
plain ordinary meaning of the terms. Dawes Rigging,
321 F. Supp. 2d at 980. The policy's terms will be applied as written
unless those terms are contrary to public policy. See Am.
Family Mut. Ins. Co., 739 N.E.2d at 448-49.
Comparing the allegations in the underlying Complaint with the
provisions of the policies issued to Allen by Plaintiff, it is
clear that the Complaint does not allege an "occurrence" as
defined by the policies. The natural and ordinary consequences of
an act do not constitute an accident. Aetna Cas. & Surety Co. v.
Freyer, 411 N.E.2d 1157, 1159 (Ill. 1980). Therefore, an injury
caused by an assault and battery normally is not considered to be
accidental even if the specific injury was not intended. Aetna
Cas. & Surety Co., 411 N.E.2d at 1159; see also Thornton v.
Ill. Founders Ins. Co., 418 N.E.2d 744, 747-48 (Ill. 1981);
Leverton II, 732 N.E.2d at 1097-99. Further, the Blankenship
Complaint alleges injuries which were expected or intended by
Allen and are therefore excluded from coverage by both policies.
See Leverton II, 732 N.E.2d at 1099. This court further
concludes that, based upon the allegations of the Complaint, the
injuries to Blankenship could not possibly fit under the policies' exception for "bodily injury"
which resulted from "the use of reasonable force to protect
persons or property." This court concludes that Allen's
conclusory statement in his Answer to Blankenship's Complaint
that he struck Blankenship "as a matter of selfdefense" does not
change the fact that the allegations in the Complaint do not
state facts which bring the case within, or potentially within,
the policies' coverage.
Comparing the allegations of the underlying Complaint and the
insurance policies, even liberally construing the allegations in
favor of Allen, it is "clear from the face of the underlying
complaint that the allegations fail to state facts which bring
the case within, or potentially within, the policy's coverage."
See Conn. Indem. Co., 328 F.3d at 349-51. Therefore, this
court concludes that Plaintiff does not have a duty to defend or
indemnify Allen regarding Blankenship's Complaint against him.
Plaintiff is entitled to the declaration it sought from this
court in its Complaint for Declaratory Judgment (#1) that it has
no coverage obligation under the policies it issued to Allen,
including to defend, indemnify, or reimburse Allen, with respect
to the underlying lawsuit filed by Blankenship. For this reason,
Plaintiff's Cross-Motion for Judgment on the Pleadings (#9) is
IT IS THEREFORE ORDERED THAT:
(1) Defendant Allen's Motion for Judgment on the Pleadings (#5)
(2) Plaintiff's Cross-Motion for Judgment on the Pleadings (#9)
is GRANTED. Judgment is entered in favor of Plaintiff and against Defendants Allen and
(3) This case is terminated. Accordingly, the Rule 16
conference scheduled for December 14, 2004, at 10:15 a.m. is