Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc.

623 N.E.2d 1036, 252 Ill. App. 3d 96, 191 Ill. Dec. 446, 1993 Ill. App. LEXIS 1719
CourtAppellate Court of Illinois
DecidedNovember 19, 1993
Docket2-93-0081
StatusPublished
Cited by23 cases

This text of 623 N.E.2d 1036 (Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc., 623 N.E.2d 1036, 252 Ill. App. 3d 96, 191 Ill. Dec. 446, 1993 Ill. App. LEXIS 1719 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE INGLIS

delivered the opinion of the court;

This appeal arises from a declaratory judgment action in the circuit court of Lake County. Defendant Andrew M. Abbott (Abbott) filed a complaint against codefendant J.O.C. Enterprises, d/b/a Circus Pub (Circus), alleging liability for injuries inflicted upon Abbott by other patrons of Circus. Plaintiff, Britamco Underwriters, Inc. (Britamco), filed a complaint for declaratory judgment, claiming that because defendant Circus’ policy of insurance did not cover the liabilities alleged in Abbott’s complaint, Britamco had no duty to defend or indemnify Circus. Upon cross-motions for judgment on the pleadings, the trial court granted judgment in favor of Britamco. Abbott appealed, and Circus adopted Abbott’s briefs. For the following reasons, we affirm.

In his complaint against Circus, Abbott alleged that he suffered personal injuries when three patrons of Circus, all minors, became intoxicated and beat him severely. Abbott alleged in count I that Circus had breached a duty not to sell alcoholic beverages to minors by selling to the assailants. Count II alleged breach of a duty to provide a safe environment for patrons by failing to eject the three patrons, whom the proprietor knew or should have known were likely to injure other patrons. Count III alleged breach of a duty to comply with the Dramshop Act (235 ILCS 5/1 — 1 et seq. (West 1992)) by selling alcoholic beverages to the three patrons whereby they became intoxicated.

In its complaint for declaratory judgment Britamco alleged that the company was not obligated to indemnify or defend Circus with regard to Abbott’s complaint. Britamco alleged the policy of insurance issued to Circus by Britamco contained a liquor liability exclusion which precluded any obligation to defend Circus as to counts I and III, and an assault and battery endorsement (the endorsement) which precluded any obligation to defend Circus as to count II.

Abbott moved for judgment on the pleadings, pursuant to section 2 — 615(e) of the Code of Civil Procedure (735 ILCS 5/2 — 615(e) (West 1992)), alleging that the language in the endorsement (1) is vague, confusing, and ambiguous; (2) does not apply to the cause of action in count II of the underlying complaint; and (3) contradicts public policy in Illinois. In response Britamco denied these allegations and cross-moved for judgment on the pleadings. The trial court granted Britamco’s cross-motion. Abbott appealed the trial court’s ruling as to the applicability of the endorsement to count II of the underlying complaint. On appeal Abbott argues the endorsement (1) violates the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)); (2) is ambiguous and therefore should be interpreted in favor of coverage; and (3) violates public policy by penalizing the insured for attempting to protect patrons. Abbott additionally raises, in his reply brief, a convoluted, imprecise argument to the effect that this court should give weight to the Illinois Insurance Commission’s interpretation of a similar clause. Issues raised for the first time in the reply brief do not merit consideration on appeal. In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568; Smith v. Intergovernmental Solid Waste Disposal Association (1992), 239 Ill. App. 3d 123, 127.

Abbott presents the consumer fraud issue for the first time on appeal. Issues raised for the first time on appeal will not be considered by the reviewing court. In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446; Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303; see also 134 Ill. 2d R. 341(e)(7).

Abbott argues that the following language in the policy is ambiguous:

“ASSAULT & BATTERY ENDORSEMENT
In consideration of the premium charged for the insurance, the policy to which this endorsement is attached, is amended and modified as follows:
Actions and proceedings to recover damages for bodily injury and property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:
1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;
2. Harmful or offensive contact between or among two or more persons;
3. Apprehension of harmful or offensive contact between or among two or more persons; or
4. Threats by words or deeds. Regardless of degree of culpability or intent and without regard to:
A. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents, or servants; or by any other person lawfully or otherwise, on or near premises owned or occupied by the insured or by any other person;
B. The alleged failure of the insured, or his officers, employees, agents, or servants in the hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured;
C. The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct.
The exclusion applies as well to any claims by any other person, firm or organization, asserting rights derived from, or contingent upon, any person asserting a claim excluded under Clauses A, B, or C (above); specifically excluding from coverage claims for:
1. Emotional distress, or for loss of society, services, consortium and/or income;
2. Reimbursement for expenses (including but not limited to medical expenses, hospital expenses, and wages) paid or incurred by such other person, firm or organization;
3. Any obligation to share damages with or repay someone who must pay damages because of the injury.”

Abbott alleges that “confusion grammar and bad English,” the failure to define key terms, repetition, and the sheer number of words render the passage ambiguous. A document is ambiguous if it is subject to more than one reasonable interpretation. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288.) A document is not ambiguous merely because the parties fail to agree upon its meaning. (First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 866.) Nor does ambiguity arise from redundancy (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 371) or from prolixity (Chester v. State Farm Mutual Automobile Insurance Co. (1992), 227 Ill. App. 3d 320, 325).

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Bluebook (online)
623 N.E.2d 1036, 252 Ill. App. 3d 96, 191 Ill. Dec. 446, 1993 Ill. App. LEXIS 1719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britamco-underwriters-inc-v-joc-enterprises-inc-illappct-1993.