General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co.

765 N.E.2d 1152, 328 Ill. App. 3d 482, 262 Ill. Dec. 544, 2002 Ill. App. LEXIS 143
CourtAppellate Court of Illinois
DecidedMarch 4, 2002
Docket1-01-1519
StatusPublished
Cited by10 cases

This text of 765 N.E.2d 1152 (General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co.) 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
General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 765 N.E.2d 1152, 328 Ill. App. 3d 482, 262 Ill. Dec. 544, 2002 Ill. App. LEXIS 143 (Ill. Ct. App. 2002).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

The City of Chicago and Cook County sued a number of gun manufacturers and distributors, including Midwest Sporting Goods, for negligently entrusting guns to inappropriate purchasers and thereby creating a public nuisance. Midwest tendered defense of the lawsuit to its liability insurer, General Agents Insurance Company of America (Gainsco). Gainsco filed this action seeking a judgment declaring that it had no duty to defend or indemnify Midwest. The trial court granted summary judgment in favor of Gainsco and Midwest appeals. We hold that the pattern of sales practices the plaintiffs will need to prove for recovery cannot qualify as an accident within the meaning of the policy. Accordingly, we affirm the judgment of the trial court.

The city and the county alleged in the complaint that during 1998 undercover police officers went to Midwest’s store in Cook County to test the measures Midwest took to prevent guns from getting into criminal hands. One officer purchased a Uzi. According to the complaint:

“The sales clerk said that since they could not legally deliver the Uzi to him in Cook County, they would have to write up the purchase order on the forms of the Midwest Sporting Goods’ Downers Grove store, and he would have to pick up the firearm at the Downers Grove store. The sales clerk used a blank purchase order with the Downers Grove masthead, and he called the Downers Grove store and asked them to call in his FOID [firearm owners identification card] number. When Officer 1 said that he wanted to purchase a pistol barrel for the Uzi, the sales clerk told him that since it was illegal to put the pistol barrel on the Uzi, he should write up the pistol barrel as a separate purchase from Midwest’s Lyons store (the one he was in at the time) rather than the Downers Grove store from which he was technically buying the Uzi. The sales clerk also advised Officer 1 that he should have all of the purchases written up on separate orders so as to avoid ATF [United States Bureau of Alcohol Tobacco and Firearms] scrutiny.”

When the officer picked up the Uzi in Downers Grove, a Midwest employee advised him “to put the Uzi in his trunk, because he would be arrested if caught with it in Cook County.” The same officer purchased six other guns at Midwest between September 30 and October 24, 1998. He picked up all seven guns between October 19 and November 5, 1998.

A second undercover officer asked a Midwest sales clerk to help her find a concealable but powerful gun to keep at her Chicago address. The clerk told her it was illegal to carry a handgun in Chicago and that 90% of the store’s customers came from Chicago. The officer chose two guns. The clerk advised her to order the firearms separately, and pick them up separately, so that the store would not need to inform ATF of a multiple purchase.

That same officer on another occasion purchased a gun for another undercover officer, who accompanied her to the store and paid the clerk for the gun. Midwest’s sales clerk did not ask for the paying officer’s identification and registered the sale to the nonpaying officer’s FOID number.

The complaint explained that “straw” purchases, by one person for the benefit of another (who usually cannot legally purchase a firearm), contribute disproportionately to crime. An officer observed customers unaffiliated with the police make such a straw purchase from Midwest.

The city and the county further allege that Midwest sells guns to Chicago residents who indicate that they will use or possess the guns in violation of Chicago ordinances. Midwest sells guns even to customers who show that they intend to transfer the guns, illegally, to other persons. From data Midwest receives from ATF, Midwest knows that multiple sales of firearms and sales to Chicago residents create a substantially greater likelihood of criminal use and possession of the firearms sold.

According to the complaint, Midwest “intentionally and recklessly facilitates the illegal possession and use of firearms” with the advice it gives to Chicago customers and customers purchasing more than one gun. Midwest and the other gun dealers “know that many of the firearms they sell *** will be obtained by persons who will use *** then-firearms illegally.” The multiple sales to straw purchasers from Chicago “unreasonably facilitate violations of City ordinances, and contribute to physical harm *** to Chicago residents.”

The city and the county seek injunctions and damages, including costs of emergency medical services and the “Bureau of Health’s costs to treat victims of firearms violence,” estimated to exceed $50 million for the period from 1994 through 1998.

Gainsco agreed to defend Midwest against any claim for bodily injury caused by an occurrence in the policy period. An “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also included an expected or intended injury exclusion, which states:

“This insurance does not apply to and no duty to defend is provided by us for ‘bodily injury’ or ‘property damage’ arising from an intentional act whether or not the resultant ‘bodily injury’ or ‘property damage’ was intended or expected from the standpoint of the insured.”

After Midwest filed its answer to the complaint for declaratory judgment, Gainsco moved for summary judgment. Gainsco argued that the complaint did not allege an occurrence, within the meaning of the policy, and the expected or intended injury exclusion precluded coverage. Midwest answered that the city’s complaint alleged occurrences in both the public nuisance and the negligent entrustment counts. The trial court granted summary judgment in favor of Gainsco.

ANALYSIS

We review the judgment de novo. Murneigh v. Gainer, 177 Ill. 2d 287, 298, 685 N.E.2d 1357 (1997). Our supreme court has restated the principles applicable for deciding the extent of a liability insurer’s duties to its insured:

“To determine an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. [Citation.] 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. [Citation.] Moreover, if the underlying complaints allege several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. [Citation.]
The underlying complaints and the insurance policies must be liberally construed in favor of the insured. *** All doubts and ambiguities must be resolved in favor of the insured.” (Emphasis omitted.) United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.

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Bluebook (online)
765 N.E.2d 1152, 328 Ill. App. 3d 482, 262 Ill. Dec. 544, 2002 Ill. App. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-agents-insurance-co-of-america-inc-v-midwest-sporting-goods-co-illappct-2002.