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Pekin Insurance Co. v. Dial

January 20, 2005

PEKIN INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
DAVID DIAL AND CYNTHIA CAIN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Marion County. No. 01-MR-75 Honorable David L. Sauer, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Rule 23 order filed December 16, 2004; Motion to publish granted January 20, 2005.

Cynthia Cain filed a sexual assault action against Dial Real Estate and Investments and David Dial (Dial), and Dial tendered the defense of Cain's action to his insurer, Pekin Insurance Company (Pekin). Pekin filed this action seeking a declaration that it had no duty to defend Dial in the Cain action. The trial court found that Pekin had a duty to defend Dial and that Pekin breached its duty to defend.

On appeal, Pekin argues that the trial court erred in finding that Cain's sexual assault allegations were covered by Pekin's insurance policy.

We reverse and enter a declaratory judgment for Pekin.

FACTS

Pekin issued a commercial general liability insurance policy, with an effective policy period from January 31, 2000, to January 31, 2001, to Dial as the insured "with respect to the conduct of [the] business." The policy provided:

"a. We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. We will have the right and duty to defend any 'suit' seeking those damages. ***
b. This insurance applies to 'bodily injury' and 'property damage' only if:
(1) The 'bodily injury' or 'property damage' is caused by an 'occurrence' that takes place in the 'coverage territory' ***."

The policy defined the term "bodily injury" as "bodily injury, sickness[,] or disease sustained by a person, including death resulting from any of these at any time," and defined the term "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

The policy excluded the following from coverage:

"a. Expected or Intended Injury

'Bodily injury' or 'property damage' expected or intended from the ...

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