United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
cause is before the Court on Plaintiff Cincinnati Insurance
Company's Motion for Summary Judgment and Request for
Oral Argument (d/e 28). The Motion for Summary Judgment,
which is unopposed, is GRANTED, and the request for oral
argument is DENIED.
December 2015, Plaintiff filed a complaint for declaratory
judgment (d/e 1) to determine Plaintiff's obligations, if
any, under two policies of insurance that Plaintiff issued to
Defendant Robert Heitbrink. In October 2016, Plaintiff filed
a First Amended Complaint (d/e 22, 23).
seeks a declaratory judgment that Plaintiff has no duty to
defend or indemnify Mr. Heitbrink with respect to the lawsuit
filed against Mr. Heitbrink by Connie McElhaney, individually
and as special administrator of the Estate of William
McElhaney. See McElhaney v. Heitbrink, Morgan County
Circuit Court, Case No. 2015-L-25 (the McElhaney
Lawsuit). In the McElhaney Lawsuit, Ms. McElhaney
seeks damages pursuant to the Illinois Wrongful Death Act,
the Illinois Survival Statute, and the Illinois Rights of
Married Persons Act. Ms. McElhaney alleges that Mr. Heitbrink
attacked and assaulted William McElhaney, resulting in Mr.
Connie McElhaney filed an answer to the complaint for
declaratory judgment. Answer (d/e 12); Answer to First
Amended Comp. (d/e 24) (admitting all of the allegations
except the allegations that the McElhaney Lawsuit does not
seek damages for a bodily injury caused by an occurrence and
that the exclusions for abuse and expected or intended injury
applied to bar coverage). On August 10, 2016, United States
Magistrate Judge Tom Schanzle-Haskins entered an Entry of
Default (d/e 19) against Defendant Heitbrink. On January 24,
2017, this Court denied without prejudice Plaintiff's
Motion for Default Judgment against Defendant Heitbrink with
leave to refile when all of the claims involving all of the
parties have been resolved. Opinion (d/e 26).
March 10, 2017, Plaintiff filed the Motion for Summary
Judgment at issue herein. Plaintiff argues that the insurance
policies issued to Mr. Heitbrink provide no coverage for the
McElhaney Lawsuit and that Plaintiff has no duty to defend
the lawsuit. Plaintiff argues (1) the McElhaney Lawsuit does
not allege “bodily injury” caused by an
“occurrence” as those terms are defined in the
policies; (2) the policies contain exclusions for expected or
intended injuries and bar coverage for Mr. Heitbrink; and (3)
the abuse exclusions in the policies preclude coverage for
Mr. Heitbrink. No defendant has filed a response.
See CDIL-LR 7.1(D)(2) (providing that the failure to
respond to a motion for summary judgment “will be
deemed an admission of the motion”).
where noted, the following facts are taken from
Plaintiff's statement of Undisputed Material Facts.
See Pl. Mem. at 2-6 (d/e 29).
17, 2015, Ms. McElhaney, individually and on behalf of the
Estate of William McElhaney, filed the complaint in the
McElhaney Lawsuit (Underlying Complaint). The Underlying
Complaint alleged the following:
a. Ms. McElhaney is the surviving spouse of William
b. On or about July 26, 2013, Mr. and Mrs. McElhaney stayed
overnight as guests at the residence of Shelley Heitbrink and
Robert Heitbrink in Jacksonville, Illinois. Mr. Heitbrink is
Shelley Heitbrink's ex-husband. Shelly Heitbrink is Ms.
c. On July 27, 2013, at approximately 4:00 a.m., Mr.
Heitbrink “attacked and assaulted” Mr. McElhaney.
d. Mr. Heitbrink also “repeatedly struck” and
“repeatedly stabbed” Mr. McElhaney. As a direct
and proximate result of Mr. Heitbrink's conduct, Mr.
McElhaney suffered fatal injuries that resulted in his death
on July 27, 2013.
e. On that date, the decedent Mr. McElhaney was 70 years old.
Mr. Heitbrink was 48 years old.
f. Mr. McElhaney is survived by his wife and four children.
As such, the McElhaney Lawsuit seeks damages under the
Illinois Wrongful Death Act, Illinois Survival Statute, and
Illinois Rights of Married Persons Act.
not mentioned in Plaintiff's Undisputed Material Facts,
Count II of the Underlying Complaint-captioned
“WRONGFUL DEATH-NEGLIGENCE”-alleges that Mr.
Heitbrink had a duty to refrain from physically harming other
persons, including Mr. McElhaney. Underlying Compl. at 3 (d/e
22-1). Mr. Heitbrink breached that duty by repeatedly
striking and stabbing Mr. McElhaney and by acting in total
disregard for the safety and well-being of Mr. McElhaney.
separate criminal case, Mr. Heitbrink was charged with and
convicted of first degree murder for killing Mr. McElhaney.
Mr. Heitbrink was sentenced to prison for that conviction.
Heitbrink has demanded insurance coverage from Plaintiff for
the McElhaney Lawsuit. Plaintiff issued an Executive
Homeowners Policy with policy number H01 0533752 to Rob and
Shelley Heitbrink, effective from July 9, 2013 through July
9, 2014 (the Homeowners Policy). Plaintiff also issued a
Personal Umbrella Liability Policy with policy number U01
533752 to Rob and Shelley Heitbrink for the same policy
period (the Umbrella Policy). The Homeowners Policy and the
Umbrella Policy are collectively referred to as the Policies.
Policies provide coverage for “bodily injury”
caused by an “occurrence.” The Personal Liability
coverage of the Homeowners Policy contains the following
1. COVERAGE E-PERSONAL LIABILITY