Country Mut. Ins. Co. v. Dahms

2016 IL App (1st) 141392 (Ill. App., 2016)

Words & Phrases

Duty To Defend: Intentional Act

Trial Judge

LeRoy K. Martin

Appellate Judge

Ellis

Holding

Duty to defend arose upon filing of suit for negligence and battery, but terminated when insured was convicted of aggravated battery..

Fact Summary

This declaratory-judgment action involves an insurance coverage dispute as to whether plaintiff-counterdefendant, Country Mutual Insurance Company (Country Mutual), has a duty to defend its insured, defendant-counterplaintiff, Charles Dahms, in an underlying tort lawsuit. The plaintiff in the tort lawsuit against Dahms pleaded causes of action for negligence and battery. About six months after the tort action against Dahms was filed, Dahms was convicted of aggravated battery stemming from the same events.

¶ 2 Country Mutual and Dahms filed cross-motions for summary judgment in the declaratory-judgment action. The circuit court ruled that Country Mutual had a duty to defend Dahms, because Dahms had filed an affirmative defense of self-defense in the tort case. The circuit court later clarified its ruling, finding that the duty to defend did not arise until the date Dahms filed his answer and affirmative defenses in the tort action.

¶ 3 Dahms appeals from the circuit court’s decision; he agrees with the trial court’s finding of a duty to defend but disagrees as to the trigger date. Country Mutual cross-appeals, arguing for various reasons that it had no duty to defend the underlying lawsuit–including the fact that Dahms’s criminal conviction for the same conduct bars coverage under the policy’s exclusion for “criminal acts.”

¶ 4 We agree with the trial court that Country Mutual owed a duty to defend Dahms in the tort action, but we hold that this duty arose the moment the tort lawsuit was filed, not when Dahms pleaded his affirmative defenses in that lawsuit. We affirm the trial court’s ruling as so modified. We further hold, however, that Country Mutual’s duty terminated on the date that Dahms was criminally convicted for the same conduct because, as of that moment, his conduct fit with the policy’s criminal-act exclusion. Thus, we affirm the trial court’s judgment in part as modified and reverse in part.

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