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Cincinnati Insurance Co. v. Heitbrink

United States District Court, C.D. Illinois, Springfield Division

May 17, 2017

CINCINNATI INSURANCE COMPANY, Plaintiff,
v.
ROBERT HEITBRINK, CONNIE MCELHANEY, individually and as special administrator of THE ESTATE OF WILLIAM MCELHANEY, Defendants.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This 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.

         I. PROCEDURAL BACKGROUND

         In 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).

         Plaintiff 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).[1] 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. McElhaney's death.

         Defendant 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).

         On 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”).

         II. UNDISPUTED FACTS

         Except where noted, the following facts are taken from Plaintiff's statement of Undisputed Material Facts. See Pl. Mem. at 2-6 (d/e 29).

         On July 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 McElhaney.
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. McElhaney's daughter.
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.

         Although 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. Id.

         In a 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.

         Mr. 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.

         Both Policies provide coverage for “bodily injury” caused by an “occurrence.” The Personal Liability coverage of the Homeowners Policy contains the following Insuring Agreement:[2]

         SECTION II-LIABILITY COVERAGES

         A. SECTION II-COVERAGE

1. COVERAGE E-PERSONAL LIABILITY

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