                             No. 3-05-0262
______________________________________________________________________
____
filed April 3, 2006
                                IN THE

                             APPELLATE COURT OF ILLINOIS

                                   THIRD DISTRICT

                                       A.D., 2006

ILLINOIS FARMERS INSURANCE                 )    Appeal from the Circuit Court
COMPANY,                                   )    for the Twelfth Judicial Circuit,
                                           )    Will County, Illinois
      Plaintiff-Appellant,                 )
                                           )
      v.                         ) No. 04-MR-118
                                 )
THOMAS KURE AND CINDY KURE,         )   The Honorable
                                            )      Herman S.
                                   Haase,
     Defendants-Appellees.                      )
                                              Judge, Presiding.
_________________________________________________________________
____________

      JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

_____________

      Plaintiff-appellant, Illinois Farmers Insurance Company (Farmers) filed a

complaint seeking declaratory judgment that it has no duty to defend or indemnify

defendants-appellees, Matthew Kure and his parents, Thomas and Cindy Kure, against

a negligence lawsuit against Matthew. Defendants filed a counterclaim seeking

declaratory judgment that Farmers does have a duty to defend and indemnify. The

parties filed motions for summary judgment. Following a hearing, the circuit court of Will

County granted Farmers= motion as to Matthew, denied its motion as to Thomas and
Cindy, denied defendants= motion for summary judgment as to Matthew and granted

defendants= motion as to Thomas and Cindy. For the reasons that follow, we affirm.



                                     BACKGROUND

       Farmers insures Matthew Kure and his parents Thomas and Cindy under a

homeowner=s liability policy. Kyle Signorelli and his parents filed a complaint against

Matthew, Thomas, and Cindy Kure seeking damages for injuries he sustained as the

result of an altercation between Kyle and Matthew. The complaint alleged that Matthew

started an altercation with Kyle and that during the course of the altercation Matthew

executed a "pile-driver" type of maneuver by lifting Kyle from the ground then driving

Kyle=s head into the ground with the weight of his body. As a result Kyle is paralyzed

from the neck down.

       Count I of the Signorelli complaint alleged that Matthew negligently injured Kyle.

Count II alleged Thomas and Cindy Kure were negligent for providing Matthew with the

vehicle he used to travel to Kyle=s house and for failing to control their son. Count IV

alleged willful conduct and battery against Matthew. The remaining counts of the

Signorelli complaint are not at issue in this appeal.

       Thomas and Cindy sought coverage for defense of the complaint and indemnity

from Farmers. Farmers filed an action for declaratory judgment that it has no duty to

defend or indemnify Matthew, Thomas, or Cindy because (1) the Kures= policy covered

occurrences, (2) the policy defined an "occurrence" as an accident, and (3) the injury

did not result from an accident. Farmers also alleged it has no duty to defend or

indemnify based on the policy=s intentional conduct exclusion. Farmers argued that
Thomas and Cindy did not have coverage for their allegedly "negligent" conduct

because Matthew=s conduct was intentional. Thomas and Cindy responded that the

allegations against them were based on negligence, not intentional conduct, and

therefore the exclusion did not apply.

      Following argument the trial court found that Farmers has a duty to defend

Thomas and Cindy. The court found that Farmers did not have a duty to defend or

indemnify Matthew. The court granted Farmers= motion for summary judgment as to

Matthew, denied Farmers= motion as to Thomas and Cindy, denied Matthew=s motion

for summary judgment, and granted Thomas and Cindy=s motion for summary

judgment. Finally, the court entered an order that no just reason existed to delay appeal

of its order. Farmers appeals the court=s order granting Thomas and Cindy=s motion for

summary judgment on its action seeking a declaratory judgment that Farmers has a

duty to defend the complaint against Thomas and Cindy. Matthew did not file a cross-

appeal of the court=s order denying his motion for summary judgment.

                                         ANALYSIS

      Summary judgment is proper where, when viewed in the light most favorable to

the nonmoving party, the pleadings, depositions, admissions, and affidavits on file

reveal that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). "The

standard of review for the entry of summary judgment is de novo." General Casualty

Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18, 20 (2002).

      "It is the general rule that the duty of the insurer is determined by the

      allegations of the underlying complaint. [Citation.] A duty to defend arises

                                           -3-
       if the complaint's allegations fall within or potentially within the coverage

       provisions of the policy. *** The threshold requirements for the

       complaint's allegations are low. [Citation.] In a court's determination of the

       duty to defend, the underlying complaint is to be liberally construed in

       favor of the insured, and doubts and ambiguities are to be construed in

       favor of the insured. [Citation.] A determination regarding an exclusionary

       clause is subject to the same liberal standard. *** <An insurer may not

       justifiably refuse to defend an action against its insured unless it is clear

       from the face of the underlying complaints that the allegations fail to state

       facts which bring the case within, or potentially within, the policy's

       coverage.= (Emphasis in original.) Wilkin Insulation Co., 144 Ill. 2d at 73,

       578 N.E.2d at 930." Lyons v. State Farm Fire and Casualty Co., 349 Ill.

       App. 3d 404, 406-07, 811 N.E.2d 718, 721-22 (2004).

       The sole issue before us is whether Farmers had a duty to defend Thomas and

Cindy under their homeowner=s liability policy. That policy states, in pertinent part, as

follows:

       "We will pay those damages which an insured becomes legally obligated

       to pay because of bodily injury, property damage or personal injury

       resulting from an occurrence to which this coverage applies.

              <Occurrence= means an accident, including exposure to

              conditions which result during the policy period in bodily

              injury or property damage. Repeated or continuous



                                             -4-
              exposure to the same general conditions is considered to be

              one occurrence."

       On appeal, Farmers raises two arguments. First, Farmers argues that Kyle=s

injury did not result from an "occurrence" as defined in the homeowner=s policy and

therefore the complaint does not make allegations that fall within the coverage provided

by the policy. Second, Farmers argues that if the allegations of the complaint do fall

within the policy=s coverage, Matthew=s intentional conduct would trigger the intentional

act exclusion as it relates to Thomas and Cindy.

       In support of its first argument, Farmers states that Kyle=s injuries resulted from

Matthew=s intentional acts and the trial court found Matthew=s actions resulting in Kyle>s

injuries were not accidental when it found Farmers has no duty to defend Matthew.

Farmers argues that because "there is no separate bodily injury being claimed by [Kyle]

which result[ed] from the alleged negligent conduct of Thomas and Cindy Kure," Kyle=s

injuries were not the result of an Aoccurrence@ and the policy does not apply.

       In support of its second argument, Farmers cites, inter alia, Northbrook Property

& Casualty Co. v. Transportation Joint Agreement, 194 Ill. 2d 96, 741 N.E.2d 253

(2000). That case arose from an accident where "a METRA train collided with a school

bus operated jointly by the school districts. Several students were killed and many

others were injured, resulting in numerous lawsuits against the school districts."

Transportation Joint Agreement, 194 Ill. 2d at 97, 741 N.E.2d at 254. Northbrook

insured the school districts under a commercial general liability policy. That policy

contained the following exclusion:



                                            -5-
              "<"Bodily injury" or "property damage" arising out of the ownership,

              maintenance, use or entrustment to others of any aircraft, "auto" or

              watercraft owned or operated or rented or loaned to any insured.

              Use includes operation and "loading or unloading." *** "Auto"

              means a land motor vehicle, trailer or semitrailer designed for travel

              on public roads, including any attached machinery or equipment.="

              Transportation Joint Agreement, 194 Ill. 2d at 98, 741 N.E.2d at

              254.

       The trial court held that Northbrook "had no duty to defend the school districts

against the students' lawsuits because the injuries arose out of the use or operation of a

bus." The appellate court reversed, finding that "the students' lawsuits against the

school districts adequately alleged that the injuries could have arisen from causes other

than use or operation of the bus, such as failure of the school districts to adequately

plan and inspect bus routes and warn bus drivers of potential hazards." Transportation

Joint Agreement, 194 Ill. 2d at 98, 741 N.E.2d at 254. The supreme court reversed the

appellate court, reasoning as follows:

       "The policy excludes injuries arising from the school districts' use or

       operation of a motor vehicle. Allegations that the school districts

       inadequately planned and inspected bus routes or failed to warn bus

       drivers of potential hazards along the routes are nothing more than

       rephrasings of the fact that the students' injuries arose from the school

       districts' use or operation of a motor vehicle. Contrary to the appellate

       court's holding, the students' complaints failed to allege that the injuries

                                             -6-
      arose from events <wholly independent of any negligent operation of the

      bus=, quoting Northbrook Property & Casualty Insurance Co. v.

      Transportation Joint Agreement, 309 Ill. App. 3d 261, 266 (1999)"

      Transportation Joint Agreement, 194 Ill. 2d at 98-99, 741 N.E.2d at 254.

Farmers argues for a similar result here, where the policy excludes coverage for injuries

arising from intentional acts and allegations that Thomas and Cindy failed to adequately

supervise Matthew are nothing more than rephrasings of the fact that Kyle=s injury arose

from an intentional act by an insured.

      Thomas and Cindy respond to both of Farmers= arguments by first asserting that,

under this policy, "[w]hether one who contributes to an injury is negligent is independent

from the question of whether another who directly caused the injury acted intentionally."

This is because the policy contains a severability clause that states "[t]his insurance

applies separately to each insured." Thomas and Cindy reason that because of the

severability clause, the court is bound to determine whether an "occurrence" occurred

as if Thomas and Cindy were the only insureds.

      In support of that argument, they cite King v. Dallas Fire Insurance Co., 85

S.W.3d 185, 187, 191 (Tex. 2002), a case decided by the Supreme Court of Texas. In

King the insured=s employee intentionally injured a third party. The injured party sued

the insured for negligent hiring, training, and supervision. The issue in that case was

"whether an employer's alleged negligent hiring, training, and supervision constitute[d]

an <occurrence= under the terms of the insurance policy although the injury was directly

caused by the employee's intentional conduct." Similar to this case, the insurance

company argued that the injury was the result of an intentional act, while the insured

                                           -7-
argued that, from his standpoint, the injuries resulted from an accident, i.e., his own

negligence. King, 85 S.W.3d at 188.

       The policy in King contained language stating that the insurance applied as if

each named insured were the only named insured and separately to each insured

against whom a claim is made. The policy further provided that the court was to treat

each named insured as if she were the only named insured. The court concluded that

from the employer=s standpoint the allegations of the complaint alleged an "occurrence"

in part because to hold otherwise would impute the intentional actor=s intent to the

separate insured. The court found that at its core, the insurer=s argument was that the

insured=s employee's intent should control whether there is a duty to defend the insured

under the policy. The court held "that argument not only ignores the policy language

that delineates between separate insureds, it also ignores the intended-injury exclusion

provision. That exclusion, which excludes coverage for injuries <intended from the

standpoint of the insured,= would have no purpose if all intended injuries were excluded

at the outset from coverage because they would not be an <occurrence.=" King, 85

S.W.3d at 189.

       Finally, Thomas and Cindy respond that Farmers is seeking to impute Matthew=s

intentional conduct to them, and that Illinois "refuses to impute the intentional conduct of

one insured to another innocent insured." Farmers denies it is attempting to impute

Matthew=s conduct to Thomas and Cindy by arguing that because the policy uses the

phrase "an insured" in the intentional act exclusion, the exclusion is broadened to

exclude Thomas and Cindy from coverage for injuries triggered by Matthew=s intentional

(and therefore excluded) conduct. For this argument, Farmers relies on Allstate

                                            -8-
Insurance Co. v. Smiley, 276 Ill. App. 3d 971, 659 N.E.2d 1345, (1995), where the

insured ran a daycare business out of her home, and one of the children in her care was

injured by the allegedly negligent act of her husband. The husband contended that

because he was not engaging in the business, the exclusion in their policy for injuries

related to business activities did not apply to him. The court held as follows:

       "The word <an= is an indefinite article and is applied to more than one

       individual object. (Allstate Insurance Co. v. Foster (D. Nev. 1988), 693 F.

       Supp. 886, 889; see also Black's Law Dictionary 84 (6th ed. 1990)

       (defining <an= as <[t]he English indefinite article=).) Also, the word <an= is

       often used in the sense of <any= (Foster, 693 F. Supp. at 889; see also

       Black's Law Dictionary 84 (6th ed. 1990) (stating that the word <an= is

       <equivalent to "one" or "any"=)), and use of the phrase >an insured= in an

       exclusionary clause unambiguously means >any insured= (Allstate

       Insurance Co. v. Freeman (1989), 432 Mich. 656, 698-99, 443 N.W.2d

       734, 753-54). In the present case, therefore, employing the words >an=

       and >any= broadened the exclusions to include injuries triggered by one

       insured in connection with the business activities of another insured."

       Smiley, 276 Ill. App. 3d at 979, 659 N.E.2d at 1352.

       Thomas and Cindy respond Smiley is inapposite to the case at bar because,

there, the court concluded that "the injuries allegedly caused by David Smiley's

negligence were connected to his wife's business activities" in that the duty arose

because of the business. Smiley, 276 Ill. App. 3d at 980, 659 N.E.2d at 1352. On the

contrary, in the present case, Thomas and Cindy played no role in Matthew=s conduct.

                                              -9-
       With that background in mind, we turn to the issues Farmers raises in support of

its appeal.

  A. Whether Matthew=s Act Constitutes an "Occurrence" for Purposes of Thomas and

                               Cindy=s Insurance Coverage

       In Illinois, as in Texas, whether an occurrence has occurred is determined from

the insured=s standpoint. See Country Cos. v. Bourbon, 122 Ill. App. 3d 1061, 1067,

462 N.E.2d 526, 530 (1984) ("we think the better rule to be that which considers the

injury from the standpoint of the [insured], rather than that which centers upon a

characterization of the actions *** as intentional or accidental. *** Thus, when viewing

the incident we have related from the standpoint of the [insured], there can be no doubt

that insofar as he was concerned it was indeed an accident, despite the fact that the

injuries he received were the result of an intentional and criminal act"); Dyer v. American

Family Insurance Co., 159 Ill. App. 3d 766, 772, 512 N.E.2d 1071, 1074 (1987) (each

construing uninsured motorist insurance coverage).

       We find Lyons v. State Farm Fire & Casualty Co., 349 Ill. App. 3d 404, 811

N.E.2d 718 (2004), instructive in this case. There, the insurer argued that the insured=s

act of building levees that allegedly damaged another=s property "was intentional and

therefore was not an <occurrence= within the meaning of the policy, which define[d]

<occurrence= as <an accident.=" Lyons, 349 Ill. App. 3d at 408, 811 N.E.2d at 722. The

insured=s policy excluded coverage for property damage "that <is either expected or

intended by the insured.=" Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722. The Lyons

court began by noting that "[i]n determining what constitutes an accident, Illinois

adheres to the rule of law promulgated by the United States Supreme Court more than

                                           -10-
a century ago in United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 33 L. Ed.

60, 9 S. Ct. 755 (1889)." Lyons, 349 Ill. App. 3d at 408, 811 N.E.2d at 723. The Illinois

Supreme Court later summarized the Barry rule as follows:

       "<[I]f an act is performed with the intention of accomplishing a certain

       result, and if, in the attempt to accomplish that result, another result,

       unintended and unexpected, and not the rational and probable

       consequence of the intended act, in fact, occurs, such unintended result is

       deemed to be caused by accidental means.=" Lyons, 349 Ill. App. 3d at

       409, 811 N.E.2d at 723, quoting Yates v. Bankers Life & Casualty Co.,

       415 Ill. 16, 19, 111 N.E.2d 516, 517-18 (1953).

       "The factual allegations of the complaint, rather than the legal theories,

determine a duty to defend." Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722.

Examining the allegations of the complaint, the Lyons court found that it contained no

allegations the insured expected or intended to build his levees so that they extended

onto the underlying plaintiff=s property. The court concluded that "[c]onstruing the policy

and complaint liberally and resolving all doubts in favor of the insured, *** the allegations

of the underlying complaint are potentially within the coverage under the policy" (Lyons,

349 Ill. App. 3d at 412, 811 N.E.2d at 726) and therefore the insurer had a duty to

defend.

       Viewing the incident from Thomas and Cindy=s point of view, we hold that the

complaint makes allegations that are within the coverage provided by the policy. The

underlying complaint in the present case alleges only negligence by Thomas and Cindy

and makes no allegation that they intended that as a result of their alleged act of

                                            -11-
negligence, specifically, failing to control Matthew and providing him with the means of

traveling to Kyle=s home, that Matthew would injure Kyle.

                     B. Whether the Intentional Act Exclusion Applies

       The intentional act exclusion in the Kures= homeowner=s liability policy reads as

follows:

       "We do not cover bodily injury, property damage or personal injury which

       is either:

              (a) caused intentionally by or at the direction of an insured; or

              (b) results from any occurrence caused by an intentional act

              or any insured where the results are reasonably

              foreseeable."

       A duty to defend arises if the complaint's allegations potentially fall within the

coverage provisions of the policy. See Lyons, 349 Ill. App. 3d at 406, 811 N.E.2d at

721-22. Lyons found that the unintended consequences of the insured=s intended act

brought the underlying claim potentially within the policy=s coverage. There, the policy

excluded coverage for property damage that was " <either expected or intended by the

insured.= " Lyons, 349 Ill. App. 3d at 407, 811 N.E.2d at 722. Similarly, in the present

case, the policy excludes coverage for bodily injury that "results from any occurrence

caused by an intentional act *** [or] where the results are reasonably foreseeable." As

the Lyons court noted, that language places the "focus of the inquiry in determining

whether an occurrence is an accident [on] whether the injury is expected or intended by

the insured, not whether the acts were performed intentionally." (Emphases in original.)

Lyons, 349 Ill. App. 3d at 409, 811 N.E.2d at 723.

                                            -12-
       In Williams v. American Country Insurance Co., 359 Ill. App. 3d 128, 139, 833

N.E.2d 971, 980 (2005), the court construed a policy which excluded coverage for

bodily injury expected or intended from the standpoint of the insured. In Williams, a cab

company sought coverage for its driver=s traffic accident in which the driver struck the

pedestrian. The policy=s coverage exclusion for expected or intended injuries became

an issue because the driver was convicted of battery as a result of the occurrence.

Williams, 359 Ill. App. 3d at 130, 833 N.E.2d at 973. Williams held that the supreme

court=s holding in American Family Mutual Insurance Co v. Savickas, 193 Ill. 2d 378,

739 N.E.2d 445 (2000), precluded the driver from contesting the fact that his battery

conviction established that his conduct was intentional. The Williams court held that the

language of the policy allowed "coverage to be excluded as to one insured and remain

in effect as to the other insured." Williams, 359 Ill. App. 3d at 139, 833 N.E.2d at 980.

Coverage would be excluded as to the cab company "only if [it] >expected or intended=

the injury." Williams, 359 Ill. App. 3d at 139-40, 833 N.E.2d at 980.

       The trial court found that Matthew=s acts were intentional. However, Thomas and

Cindy did not commit an intentional act and did not participate in Matthew=s conduct.

"[T]he duty of the insurer is determined by the allegations of the underlying complaint."

Lyons, 349 Ill. App. 3d at 406, 811 N.E.2d at 721-22. Again, the complaint against

Thomas and Cindy contains no allegation that Thomas and Cindy intended or even

expected that as a result of their alleged negligence Matthew would injure Kyle. Nor

does the complaint allege that such a result was reasonably foreseeable from Thomas

and Cindy=s allegedly negligent acts. Accordingly, we hold the intentional act exclusion

does not apply to Farmers= coverage of Thomas and Cindy.

                                           -13-
                                    CONCLUSION

      For all of the foregoing reasons, the circuit court=s order granting Thomas and

Cindy=s motion for summary judgment on its action seeking a declaratory judgment that

Farmers has a duty to defend the complaint against them is affirmed.

      Affirmed.

      BARRY and O=BRIEN, J.J., concur.




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