Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit No. 12-MR-137. Honorable Paul Gilfillan, Judge, Presiding.
In an action arising from an automobile accident in which defendant's car struck a police officer who was directing traffic and two suits were filed against the driver, the first by the policeman alleging intentional assault and intentional battery, and the second by the driver's insurer seeking a declaratory judgment that it had no duty to defend the driver in the policeman's action because the policy did not cover claims for intentional conduct, then the city's workers' compensation insurer sued the driver to recover the workers' compensation benefits it would have to pay the officer, the driver moved to consolidate the actions filed by the officer and the city's workers' compensation insurer, the driver's insurer acknowledged its obligation to defend the driver under a reservation of rights, and when the trial court denied the driver's cross-motion for summary judgment that his insurer had to defend both the actions to recover the workers' compensation benefits and the officer's action against the driver and granted the insurer's motion for summary judgment, the driver appealed and the appellate court reversed the entry of summary judgment for the driver's insurer and remanded the cause with an order that the trial court enter summary judgment for the driver based on the finding that his insurer had a duty to defend the officer's action.
John P. Fleming (argued) and Joshua M. Smith, both of Fleming & Umland, of Peoria, for appellant.
Robert Marc Chemers and Philip G. Brandt (argued), both of Pretzel & Stouffer Chtrd., of Chicago, for appellee.
JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justices Carter and Lytton concurred in the judgment and opinion.
[¶1] Defendant insured, John E. Neumann, appealed from a circuit court order granting the motion of the plaintiff insurer, Farmers Automobile Insurance Association (Farmers), for summary judgment and denying Neumann's cross-motion for summary judgment, and finding that Farmers owed no duty to defend Neumann in one of two civil lawsuits that had been filed against Neumann. We reverse the grant of summary judgment in favor of Farmers and grant Neumann's motion for summary judgment.
[¶3] The defendant in this declaratory judgment action, John E. Neumann, was involved in a traffic incident on August 27, 2011, with the other defendant in this action, Christopher Bitner, wherein Neumann allegedly hit Bitner with his automobile while Bitner was directing traffic as a City of Pekin police officer. As a result of the accident, two civil lawsuits were filed naming Neumann as a defendant. The first was a complaint filed by Bitner (No. 12-L-101) (Bitner complaint), alleging intentional assault and intentional battery by Neumann. Neumann tendered the Bitner complaint to his insurer, the plaintiff in this action, Farmers. Farmers rejected the defense of the Bitner complaint on the basis that the automobile liability policy issued to Neumann did not cover any claims for intentional conduct.
[¶4] After rejecting the defense of the Bitner action, Farmers filed the instant action for a declaratory judgment that it owed no duty to defend Neumann against the Bitner complaint. Neumann answered the declaratory judgment complaint, asserting affirmative defenses and attaching his affidavit. Neumann's affidavit asserted that he did not intend to strike nor intend to cause bodily harm to Bitner. Farmers moved to strike both the affidavit and the affirmative defenses, arguing that the affirmative defenses were not proper affirmative defenses and the affidavit was an improper attempt to assert " true but unpleaded facts." The circuit court granted both motions. Farmers filed a motion for summary judgment, arguing that it did not owe Neumann a defense to the Bitner complaint.
[¶5] Thereafter, a second civil action involving the same incident on August 27, 2011, was filed against Neumann, this one by CCMSI Insurance Company, as subrogee of ...