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Grinnell Mutual Reinsurance Company v. James Ferando

August 9, 2011

GRINNELL MUTUAL REINSURANCE COMPANY,
PLAINTIFF,
v.
JAMES FERANDO, KEVIN MCCOY, AND CHAD MCCOY,
DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

This is a declaratory judgment action brought by plaintiff Grinnell Mutual Reinsurance Company against defendants James Ferando, Kevin McCoy, and Chad McCoy. Specifically, plaintiff brought suit seeking a declaration that it did not have a duty to defend or indemnify Ferando under the insurance policy it issued to Ferando in a state civil case brought against Ferando by Kevin and Chad McCoy (the McCoys). Now before the Court is plaintiff's motion for summary judgment (Doc. 49) and motion for oral argument (Doc. 63). In essence, plaintiff contends that Ferando's coverage is explicitly excluded from coverage under the policy issued to Ferando and therefore summary judgment should be entered in its favor. For the reasons that follow, plaintiff's motion for summary judgment (Doc. 49) and motion for oral argument (Doc. 63) are denied.

I. Background

Ferando was involved in a shooting incident with the McCoys on September 24, 2007, that resulted in state criminal charges being brought against Ferando. Specifcally, Ferando was charged with two counts of attempted murder, aggravated discharge of a firearm, and aggravated unlawful restraint with a deadly weapon after he fired several shots in the direction of the McCoys. Ferando plead guilty to the aggravated discharge of a firearm and aggravated unlawful restraint charges and was sentenced to four years imprisonment.

Thereafter, on March 25, 2009, the McCoys filed a state civil action against Ferando seeking compensatory and punitive damages based on the events of September 24, 2007. There, Ferando asserted that plaintiff had a duty to defend and indemnify him and to cover any losses that he may incur as a result of that case based upon the lessor and renter's policy Ferando had with plaintiff.

That policy contained the following relevant provisions. First, under the "SPECIAL PROVISIONS - ILLINOIS" amendments to the policy, the "PERSONAL LIABILITY COVERAGES" provision provided as follows:

"Subject to the liability limits and the terms of this policy, we will pay compensatory damages for which an 'insured' becomes legally liable as a result of 'bodily injury' or 'property damage' caused by an 'occurrence' to which this coverage applies.

If suit is filed against an 'insured' for liability covered under this policy, we will provide a defense using lawyers we choose. We may investigate and settle any claim or suit as we deem appropriate." "Bodily injury" is defined under the policy to mean "bodily harm, sickness, or disease sustained by a person, including resulting death" and "also includes mental or physical anguish, pain, or suffering, but only if accompanied by physical symptoms." "Occurrence" means "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. 'Bodily injury'; or b. 'Property damage'."

The "SPECIAL PROVISIONS - ILLINOIS" provision amended the "EXCLUSIONS" provision to provide as follows:

"10. We do not cover 'bodily injury' or 'property damage' which results from an act committed by any 'insured':

a. In the course of or in the furtherance of any:

(1) Crime;

(2) Offense of a violent ...


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