Cincinnati Insurance Company v. Heitbrink et al
Filing
34
OPINION: Plaintiff's Motion for SummaryJudgment (d/e 28 ) is GRANTED. Plaintiff is granted leave to file aMotion for Default Judgment against Defendant Robert Heitbrinkwithin 14 days of this Opinion. Once the default judgment isentered, the Court will enter a final judgment in this matter. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 5/17/2017. (GL, ilcd)
E-FILED
Thursday, 18 May, 2017 09:56:09 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CINCINNATI INSURANCE
COMPANY,
Plaintiff,
v.
ROBERT HEITBRINK, CONNIE
MCELHANEY, individually and
as special administrator of
THE ESTATE OF WILLIAM
MCELHANEY,
Defendants.
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No. 3:15-CV-03352
OPINION
SUE E. MYERSCOUGH, U.S. 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
Page 1 of 22
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
A review of the Morgan County records shows that the McElhaney Lawsuit is
still pending. On January 23, 2017, an order was entered providing that a
“Hearing on Motion for Default Judgment” has been “continued generally to be
reset.”
http://www.judici.com/courts/cases/case_history.jsp?court=IL069015J&ocl=
IL069015J,2015L25,IL069015JL2015L25D1 (last visited May 17, 2017).
However, because there is no bona fide dispute in this case as to whether Mr.
Heitbrink acted negligently or intentionally, the Court need not wait for the
tort litigation to be resolved before deciding the coverage issue. See State
Farm Fire & Cas. Co. v. Leverton, 289 Ill. App. 3d 855, 856 (1997) (in a case
where the underlying complaint alleged negligent conduct, the court held:
“Where bona fide disputes arise over the issue of negligence versus intentional
conduct for indemnification purposes, the tort litigation should be resolved
before the court decides the coverage issue in a declaratory judgment
action.”); Cincinnati Ins. Co. v. Allen, 347 F. Supp. 2d 586, 592-93 (C.D. Ill.
2004) (finding the court did not need to wait for the tort litigation to be
resolved before deciding the coverage issue where there was no bona fide
dispute as to whether the defendant acted negligently or intentionally).
1
Page 2 of 22
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
Page 3 of 22
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
Page 4 of 22
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 wellbeing of Mr. McElhaney. Id.
Page 5 of 22
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
Plaintiff inadvertently failed to cite in the Motion for Summary Judgment the
language in the policy endorsement that amends portions of the Policies. See
Resp. (d/e 33). The policy language set forth herein takes into account the
endorsements to the Policies as applicable.
2
Page 6 of 22
1.
COVERAGE E—PERSONAL LIABILITY
INSURING AGREEMENT
a.
“We” will pay those sums the “insured” becomes
legally obligated to pay as damages because of
“bodily injury”, “personal injury” or “property
damage” to which this insurance applies. “We” will
have the right and duty to defend the “insured”
against any “suit” seeking those damages.
However, “we” will have no duty to defend the
“insured” against any “suit” seeking damages for
“bodily injury”, “personal injury” or “property
damage” to which this insurance does not apply.
“We” may, at “our” discretion, investigate any
“occurrence” and settle any claim or “suit” that
may result. But:
(1)
The amount “we” will pay for damages is
limited as described in Section II, D. Section
II Conditions, Condition 1. Limit of
Insurance; and
(2)
“Our” right and duty to defend ends when
“we” have exhausted the applicable Limit of
Insurance in the payment of judgments or
settlements under Section II-Coverage E.
No other obligation or liability to pay sums or
perform acts or services is covered unless expressly
provided for under Section II, C. Section IIAdditional Coverages.
b.
This insurance applies to “bodily injury”, “personal
injury” or “property damage” only if:
(1)
The “bodily injury”, “personal injury” or
“property damage” is caused by an
“occurrence”; and
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(2)
The “bodily injury” or “property damage”
occurs during the “coverage term”; or
(3)
The “personal injury” results from an
“occurrence” that takes place during the
“coverage term”.
Homeowners Policy, p. 27 of 63 (subsection b); pp. 49-50 of
63 (subsection a) (d/e 22-2). The Umbrella Policy contains a
substantially similar Insuring Agreement:
SECTION I—COVERAGE
A. Insuring Agreement
1.
“We” will provide the insurance described in this
policy. “You” agree to pay the premium and to
comply with the provisions and conditions of this
policy.
2.
“We” will pay on behalf of the “insured” the
“ultimate net loss” which the ‘insured” is legally
obligated to pay as damages for “bodily injury”,
“personal injury” or “property damage” arising out
of an “occurrence” to which this insurance applies:
a.
b.
3.
Which is in excess of the “underlying
insurance”; or
Which is either excluded or not covered by
“underlying insurance”.
This insurance applies to “bodily injury”, “personal
injury” or “property damage” only if:
Page 8 of 22
a.
b.
The “bodily injury” or “property damage”
occurs during the “coverage term”; or
c.
4.
The “bodily injury”, “personal injury” or
“property damage” is caused by an
“occurrence” that takes place in the “coverage
territory”; and
The “personal injury” results from an
“occurrence” that takes place during the
coverage term”.
The amount “we” will pay for damages is limited as
described in the Limit of Insurance (Section II).
No other obligation or liability to pay sums or
perform acts or services is covered unless explicitly
provided for under Defense and Supplemental
Payments (Section I C.).
Umbrella Policy, p. 8 of 23 (d/e 22-3).
Plaintiff did not include the definition of “bodily injury”
in its Undisputed Material Facts. However, the Homeowners
Policy provides that “bodily injury” means “bodily harm,
sickness or disease sustained by a person, including death
resulting from any of these at any time.” Homeowners Policy,
p. 4 of 63 (d/e 22-2). In contrast, “personal injury” is defined
as injury arising out of defamation of character; false arrest,
detention, or imprisonment; wrongful eviction; malicious
prosecution; or oral or written publication of material that
Page 9 of 22
violates a person’s right to privacy. Id. The Umbrella Policy
defines “bodily injury” to mean “bodily harm, sickness,
disease, disability, humiliation, shock, fright, mental anguish
or mental injury sustained by a person, including care, loss of
services or death arising out of any of these at any time.”
Umbrella Policy, p. 4 of 23 (d/e 22-3). The Umbrella Policy
contains the same definition of “personal injury” as the
Homeowners Policy. Id. p. 7 of 23 (d/e 22-3).
The Personal Liability coverage of the Homeowners
Policy defines “occurrence” to mean “an accident, including
continuous or repeated exposure to substantially the same
general harmful conditions, that results in ‘bodily injury’ . .
. .” Homeowners Policy, p. 6 of 63 (d/e 22-2). The Umbrella
Policy contains the same language. See Umbrella Policy, p. 6
of 23 (d/e 22-3).
Both Policies contain exclusions for expected or
intended injury and exclusions for abuse. The Personal
Liability coverage section of the Homeowners Policy contains
the following relevant exclusions:
B.
Section II-Exclusions
Page 10 of 22
1.
Applicable to Coverage E-Personal Liability
The following exclusions apply to Coverage EPersonal Liability:
This insurance does not apply to:
a.
Expected or Intended Injury
“Bodily injury” or “property damage” which
may reasonably be expected to result from the
intentional or criminal acts of one or more
“insureds” or which is in fact expected or
intended by one or more “insureds”, even if
the injury or damage is:
(1)
Of a different degree or type than
actually expected or intended; or
(2)
Sustained by a different person, entity,
real or personal property, than initially
expected or intended.
However, this Exclusion 1.a. does not apply to
“bodily injury” resulting from the use of reasonable
force by an “insured” to protect persons or
property.
***
l.
Sexual Molestation, Corporal Punishment
or Physical or Mental Abuse
An “insured” who inflicts, or directs another
person to inflict, upon any person, sexual
molestation, corporal punishment (other than
administered by a teacher) or physical or
mental abuse which results in the “bodily
injury” or “property damage.”
Page 11 of 22
Homeowners Policy, p. 28 of 63 (subsection a); p. 50 of 63
(subsection l). The Umbrella Policy contains a substantially
similar exclusion for expected or intended injury. See Umbrella
Policy, p. 10 of 23; see also id., p. 19 of 23 (Illinois Amendatory
Endorsement adding additional language regarding payments to
innocent co-insureds). The Umbrella Policy provision excluding
coverage for “abuse” provides that the insurance does not apply to:
“‘Bodily injury’, ‘personal injury’ or ‘property damage’ arising from
any actual, alleged or threatened act or acts of abuse, molestation,
misconduct, or harassment.” Umbrella Policy, p. 8 of 23 (d/e 22-3)
(also containing an exception to the exclusion for corporal
punishment administered by an insured provided that such
liability is covered by underlying insurance).
III. LEGAL STANDARD
Summary judgment is proper if the movant shows that no
genuine dispute exists as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The movant bears the initial responsibility of informing the court of
the basis for the motion and identifying the evidence the movant
Page 12 of 22
believes demonstrates the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When
ruling on a motion for summary judgment, the court must
consider the facts in the light most favorable to the nonmoving
party, drawing all reasonable inferences in the nonmoving party's
favor. Egan Marine Corp. v. Great Am. Ins. Co. of New York, 665
F.3d 800, 811 (7th Cir. 2011).
IV. ANALYSIS
As noted above, Plaintiff argues that Plaintiff has no duty to
defend or indemnify Mr. Heitbrink for the McElhaney Lawsuit
because (1) the McElhaney Lawsuit does not allege “bodily injury”
caused by an “occurrence”; (2) the Policies’ exclusions for expected
or intended injuries preclude coverage for Mr. Heitbrink; and (3)
the Policies’ abuse exclusions preclude coverage for Mr. Heitbrink.
Plaintiff asserts, and no party disputes, that Illinois law
applies. Under Illinois law, an insurer’s duty to defend is broader
than the duty to indemnify. Outboard Marine Corp. v. Liberty
Mut. Ins. Co., 154 Ill.2d 90, 125 (1992). To determine whether the
insurer has a duty to defend, the court looks at the allegations in
the underlying complaint and compares those allegations to the
Page 13 of 22
relevant provisions of the insurance policy. Id. at 108. If the facts
alleged in the underlying complaint fall within, or potentially fall
within, the policy’s coverage, the insurer has a duty to defend. Id.;
see also U.S. Fid. & Guar. Co. v. Wilkin Insulation Co., 144 Ill. 2d
64, 73 (1991) (in a declaratory action, courts in Illinois will find a
duty to defend even if only one theory alleged in the underlying
complaint is potentially within the policy’s coverage). An insurer
does not have a duty to defend where “‘it is clear from the face of
the underlying complaint that the allegations fail to state facts
which bring the case within, or potentially within, the policy’s
coverage.’” Connecticut Indem. Co. v. DER Travel Serv., Inc., 328
F.3d 347, 349 (7th Cir. 2003) (quoting Wilkin, 144 Ill. 2d at 73).
The court construes the underlying complaint liberally in favor of
the insured. Lyons v. State Farm Fire & Cas. Co., 349 Ill. App. 3d
404, 407 (2004).
The construction of an insurance policy is a question of law.
Am. States Ins. Co. v. Koloms, 177 Ill. 2d 473, 480 (1997). In
construing an insurance policy, the court must ascertain and give
effect to the intentions of the parties as expressed in their
agreement. Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill. 2d
Page 14 of 22
11, 17 (2005). If the terms of the policy are clear and
unambiguous, then the court gives the terms their plain and
ordinary meaning. See Nicor, Inc. v. Associated Elec. & Gas Ins.
Servs. Ltd., 223 Ill. 2d 407, 416 (2006). Conversely, if the terms of
the policy are susceptible to more than one meaning, then the
court considers the terms ambiguous and construes the policy
strictly against the insurer who drafted the policy. Rich v.
Principal Life Ins. Co., 226 Ill. 2d 359, 371 (2007). Illinois courts
construe the insurance policy as a whole, taking into account the
type of insurance purchased, the nature of the risks involved, and
the overall purpose of the contract. Id.
Plaintiff first argues that the Underlying Complaint in the
McElhaney Lawsuit does not allege “bodily injury” caused by an
“occurrence.” As noted above, the Polices provide coverage only if
the “bodily injury” is caused by an “occurrence.” See Homeowners
Policy, p. 27 of 63 (providing that the insurance applies to bodily
injury only if the bodily injury is caused by an occurrence);
Umbrella Policy, p. 8 of 23 (d/e 22-3) (same). The Policies define
“occurrence” to mean “an accident, including continuous or
repeated exposure to substantially the same general harmful
Page 15 of 22
conditions, that results in “bodily injury” . . .” See Homeowners
Policy, p. 6 of 63 (d/e 22-2); Umbrella Policy, p. 6 of 23 (d/e 22-3).
The Policies do not define the term “accident.” Illinois courts
define an accident as “an unforeseen occurrence, usually of an
untoward or disastrous character or an undesigned[,] sudden or
unexpected event of an inflictive or unfortunate character.” Aetna
Cas. & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619 (1980); see
also State Farm Fire & Cas. Co. v. Young, 2012 IL App (1st)
103736, ¶ 26; Lyerla v. AMCO Ins. Co., 536 F.3d 684, 688-89 (7th
Cir. 2008) (using the Illinois courts’ definition of “accident” where
the policy did not define the term “accident”). “The natural and
ordinary consequences of an act do not constitute an accident.”
Freyer, 89 Ill. App. 3d at 793. In addition, if the person performing
the act intended or expected the result, the event was not an
accident. Young, 2012 IL App (1st) 103736 at ¶¶ 26, 35 (also
noting that an intentional act is often not covered for two
reasons—because it is not accidental and because it falls under
the policy exclusion for intentional acts). Therefore, an injury
caused by an assault and battery is generally not considered
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accidental, even if the specific injury was not intended. Freyer, 89
Ill. App. 3d at 793.
Comparing the allegations in the Underlying Complaint to the
provisions of the Policies, the Court finds that the Underlying
Complaint does not allege a bodily injury caused by an occurrence
as defined by the Policies. The Underlying Complaint alleges that
Mr. Heitbrink attacked and assaulted Mr. McElhaney and
repeatedly struck and stabbed Mr. McElhaney. These alleged
actions cannot reasonably be called accidental. See, e.g.,
Cincinnati Ins. Co. v. Allen, 347 F. Supp. 2d 586, 592-93 (C.D. Ill.
2004) (underlying complaint alleging that the insured walked over
and struck the victim then punched and struck the victim again as
the victim exited a vehicle, causing the victim to fall and strike his
head on the driveway, did not allege accidental conduct).
While Count II of the Underlying Complaint is identified as
“WRONGFUL DEATH—NEGLIGENCE,” the legal labels that a
plaintiff uses in the underlying case are not dispositive as to
whether a duty to defend exists. Allen, 347 F. Supp. 2d at 590.
This Court looks not at the legal theory asserted but to the factual
allegations. Young, 2012 IL App (1st) 103736 at ¶ 28 (“To
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determine whether the complaint alleged an accident, we look not
to the legal theory asserted, but to the factual allegations.”);
Country Mut. Ins. Co. v. Dahms, 2016 IL App (1st) 141392, ¶ 47 (if
the allegations show what can only be characterized as an
intentional act, the fact that the complaint alleges the act is
negligent is not controlling).
The factual allegations contained in Count II of Underlying
Complaint omit the allegation that Mr. Heitbrink attacked and
assaulted Mr. McElhaney but allege that Mr. Heitbrink repeatedly
struck and stabbed Mr. McElhaney and acted in total disregard for
Mr. McElhaney’s safety and well-being. Underlying Complaint,
Count II, at 3 of 6 (d/e 22-1). A court is not required to consider
each count in isolation when the plaintiff has not pleaded the
counts in the alternative. SCR Med. Transp. Servs., Inc. v.
Browne, 335 Ill. App. 3d 585, 590 (2002). Nonetheless, even just
reviewing the allegations in Count II, these allegations do not
describe acts that can be reasonably construed as accidental.
Count II alleges intentional conduct–repeated striking and
stabbing in total disregard for Mr. McElhaney’s safety and wellbeing. Calling what happened to Mr. McElhaney an accident is a
Page 18 of 22
“tortured interpretation of the word.” Young, 2012 IL App. (1st)
103736 ¶ 29, 360 Ill. Dec. at 273 (allegations that the defendant
failed to call 9-1-1 when the victim was clearly in peril, allowed the
victim to die, and then moved her body could not reasonably be
called accidental, even though the plaintiff characterized the act of
failing to call 9-1-1 as negligent in the complaint); see also Farmers
Auto Ins. Ass’n v. Danner, 2012 WL App (4th) 110461, ¶6 (finding
the acts could not reasonably be considered accidental where the
underlying complaint contained a negligence count alleging that
the insured got into his truck and, in a fit of rage, drove the truck
at a high speed, veered off the lane, failed to regain control, and
struck the victim, particularly in light of the fact that another
count alleged that the insured then exited the vehicle and beat the
victim with a golf club).
Plaintiff also argues no duty to defend or indemnify exists
because the Policies contain exclusions for expected or intended
injuries. Specifically, the Policies exclude from coverage any
“bodily injury” which may reasonably be expected to result from
the intentional or criminal acts of an insured or which is in fact
expected or intended by the insured, even if the injury is of a
Page 19 of 22
different degree or type than actually expected or intended.
Homeowners Policy, p. 28 of 63 (d/e 22-2); Umbrella Policy, p. 10
of 23 (d/e 22-3). Damages caused by an assault and battery
normally fall under an exclusion for intended or expected injury
even if the injury was greater than what was intended. Freyer, 89
Ill. App. 3d at 620.
As noted above, the Underlying Complaint alleges intentional
and criminal conduct by Mr. Heitbrink—acts of attacking,
assaulting, repeatedly stabbing, and repeatedly striking Mr.
McElhaney. In fact, Mr. Heitbrink was ultimately convicted of first
degree murder. In addition, Mr. Heitbrink would have reasonably
anticipated the injuries to Mr. McElhaney resulting from Mr.
Heitbrink’s attack, assault, repeated stabbing, and repeated
striking of Mr. McElhaney, as well as by acting in total disregard
for Mr. McElhaney’s safety and well-being while committing such
acts. Therefore, the exclusions in the Policies for expected or
intended injuries also apply. See Bay State Ins. Co. v. Wilson, 96
Ill. 2d 487, 493-94 (1983) (finding that an insured who
intentionally shot the victim and was later convicted had expected
the injuries because the injuries were practically certain to result
Page 20 of 22
from the conduct and, therefore, the exclusionary clause applied);
Allen, 347 F. Supp. 2d at 592-93 (underlying complaint alleging
that the insured punched and struck victim, causing the victim to
fall and strike his head on the driveway, alleged injuries that were
expected or intended and, therefore, were excluded from coverage
under the policy); West Am. Ins. Co. v. Vago, 197 Ill. App. 3d 131,
133, 137 (1990) (allegations that the insured grabbed a waitress
from behind, locked his arms around her waist, and thrust his
pelvis against her buttocks several times could not be
characterized as merely negligent or accidental conduct and the
insured should have reasonably anticipated that his acts would
cause emotional injury to the waitress; therefore, the exclusionary
clause for expected or intended injuries barred coverage and the
plaintiff had no duty to defend).
Having found that the Underlying Complaint does not allege
bodily injury caused by an occurrence and that the exclusions in
the Policies for expected or intended injury bar coverage, the Court
need not address Plaintiff’s additional argument that the abuse
exclusions preclude coverage. In sum, the Court finds that the
allegations in the Underlying Complaint do not state facts that
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bring the case within, or potentially within, the Policies’ coverage
and the exclusionary provision is clearly applicable under the facts
alleged in the Underlying Complaint. Consequently, Plaintiff does
not have either a duty to defend or a duty to indemnify Mr.
Heitbrink for the McElhaney Lawsuit. See Vago, 197 Ill. App. 3d at
138 (concluding that where there was no duty to defend there was
no duty to indemnify).
V. CONCLUSION
For the reasons stated, Plaintiff’s Motion for Summary
Judgment (d/e 28) is GRANTED. Plaintiff is granted leave to file a
Motion for Default Judgment against Defendant Robert Heitbrink
within 14 days of this Opinion. Once the default judgment is
entered, the Court will enter a final judgment in this matter.
ENTER: May 17, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 22 of 22
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