The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Pending before the Court is Plaintiff's motion for summary judgment (Doc. 58). Plaintiff argues that it is entitled to summary judgment as it neither owes a duty to defend nor indemnify the Brown and Furkin's claims based on fraud and intentional misrepresentation against Mund in the underlying suit. Defendants Brown, Furkin and Mund oppose the motion (Docs. 81 & 86). Based on the following, the Court grants the motion.
Western American Insurance Company ("Western America") brought this Declaratory Judgment action pursuant to 28 U.S.C. § 2201 and 28 U.S.C. § 1332, against Louis I. Mund, Robert Furkin, Rebecca Brown, Paul Frierdich, William Hawn, Robert Guilander, and Michael Frierdich on April 11, 2006 (Doc. 1).*fn1 Western American seeks a declaration by this Court that it does not owe a duty to defend or indemnify Mund pursuant to two commercial liability insurance policies issued to Mund by Western American. The issue in Western American's complaint stems from a St. Clair County, Illinois Circuit Court case containing claims of intentional misrepresentations, unjust enrichment, and forcible entry and unlawful detainer. Brown v. Mund, Case No. 05-L-417.*fn2 The Counts against Mund in the underlying suit are contained in Count I - Furkin's allegations of intentional misrepresentation; Count II - Furkin's allegations of unjust enrichment; Count IVBrown's allegations of intentional misrepresentation and Count V - Brown's allegations of forcible entry and unlawful detainer.
On December 22, 2006, the Court entered an Order granting in part and denying in part Brown and Furkin's motion to stay (Doc. 49). The Court denied the motion to stay the case as the issue of duty to defend and granted the motion to stay as to the issue of duty to indemnify. Thereafter, West American moved for summary judgment. The Court now turns to address the merits of the motion for summary judgment.
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P.56(c); Wyatt v. UNUM Life Insurance Company of America, 223 F.3d 543, 545 (7th Cir. 2000); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997); See alsoCelotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. EEOC v. Sears, Robuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied, 117 S.Ct. 683 (1997); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).
West American issued Mund two insurance policies: Commercial Package Policy BKW ("the 00-01 Policy") 52 26 55 02, effective June 30, 2000 through June 30, 2001 and Commercial Package Policy BKW ("the 99-00 Policy") 52 26 55 02, effective June 30, 1999 to June 30, 2000 providing commercial liability insurance as set forth therein. Both policies contain the following terms, conditions exclusions and definitions:
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
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 the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.
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;" and
(2) The "bodily injury" or "property damage" occurs during the policy period.
This insurance does not apply to:
a. Expected or Intended Injury "Bodily injury" or "property damage" expected or intended from the standpoint of the insured.
The 00-01 Policy further provides in part:
COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY
a. We will pay those sums that the insured becomes legally obligated pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking ...