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Addison Insurance Co. v. Fay

September 13, 2007


Appeal from the Circuit Court of the 12th Judicial Circuit, ) Will County, Illinois, No. 01-MR-717 Honorable Herman Haase, Judge, Presiding.

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

Plaintiff, Addison Insurance Company, brought a declaratory judgment action against Donna Fay, as Special Administrator of the Estate of Justice Carr, Laura Shackelford, as Special Administrator of the Estate of Everett Hodgins, and Donald Parrish, d/b/a Parrish Blacktop, Inc., to determine the extent of insurance coverage available to Parrish to pay claims brought by Fay and Shackelford resulting from the deaths of their sons. The trial court declared that under the terms of the commercial general liability policy issued to Parrish the boys' deaths were two separate "occurrences," thereby allowing aggregate liability coverage of $2,000,000. We reverse.

Parrish owned and operated Parrish Blacktop, Inc. The business was located on several acres of commercial property which included an excavation pit. Addison Insurance Company issued a general liability insurance policy to Parrish that provided coverage limits of $1,000,000 per "occurrence" and $2,000,000 aggregate. The policy defined "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy did not define the term "accident."

On April 30, 1997, Justice Carr, age 14, and Everett Hodgins, age 15, left Hodgins' house at approximately 5 p.m. to go fishing at the local cooling lakes located on Commonwealth Edison property near Carr's house. They did not return home and were reported missing around 10:30 that evening. A severe storm accompanied by heavy rain, high winds and rapidly dropping temperatures struck the area sometime after the boys were last seen. The lowest recorded temperature on May 1 was 34 degrees Fahrenheit. Investigators discovered the boys' bodies on May 3, 1997, on Parrish's property. Both boys were trapped in the sandy, clay bottom excavation pit that had partially filled with standing water. Their bodies were located in close proximity to each other. Carr was found waist-deep in water with his feet and legs covered in submerged clay soil. Hodgins was lying next to Carr with one leg embedded in the soil.

The parents of both boys sued Parrish separately, alleging that he negligently caused the deaths of the two boys by failing to properly secure and control access to his property. Addison defended the consolidated lawsuit and filed a declaratory judgment action against Fay, Shackelford and Parrish to obtain a judicial declaration that the boys' deaths resulted from a single occurrence, rendering the $1 million "per occurrence" limit applicable.

Through deposition testimony, defendants' expert, Eugene Holland, opined that Parrish's use of his property created a dangerous condition, which required proper site security and control. Holland testified that the boys' deaths would have been prevented if Parrish had proper security because Carr and Hodgins would not have been able to access the property.

Officer Gary Knight testified in his deposition that the officers themselves became entrapped as they tried to remove the boys. He opined that Carr likely became stuck in the soil and water when he tried to jump over the water in the bottom of the excavation. Knight assumed that Hodgins attempted to come to his friend's aid. Hodgins appeared to have sat down next to Carr, tried to pull Carr free, and in the process also became entrapped. Lieutenant Jerome Nudera, agreed with Knight's assessment of the scene.

Dr. Larry Blum, the forensic pathologist who performed autopsies on both bodies, testified through deposition that Hodgins died of hypothermia due to entrapment in the sand. Blum determined that Carr's death was caused by drowning secondary to hypothermia due to entrapment. Mary Case, Addison's expert pathologist, agreed with Carr's findings. She concurred that the drowning of Carr was secondary to, or a result of, the advancement of hypothermia.

Addison filed a pretrial motion requesting that the circuit court rule that defendants, as plaintiffs in the underlying suit, bore the burden of proving that the deaths of Carr and Hodgins were caused by separate occurrences. The court denied the motion and held that as the plaintiff in the declaratory judgment action, Addison bore the burden of proving that the boys' deaths resulted from a single occurrence.

At the conclusion of a bench trial at which the court considered only the deposition testimony, the court concluded that there was sufficient evidence to show that the causes and circumstances of death were different. Consequently, the court held that the boys' deaths were two "separate occurrences," and the $2 million aggregate limit applied.


I. Burden of Proof

Initially, Addison argues that as the insurer of the defendant Parrish in the underlying wrongful death suit, the burden is on Fay, Shackelford and Parrish in this declaratory judgment action to prove that the deaths were the result of two separate and distinct occurrences.

It is well established in Illinois insurance law that the insured bears the burden of establishing that a claim falls within the terms of a policy. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178 (1991). However, once there is such proof, the burden is on the insurer to prove that the loss was limited or excluded by a provision of the contract. Farmers Automobile Insurance Association v. Susan Gitelson, 344 Ill. App. 3d 888, 896 (2003). The plaintiff in a ...

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