Pekin Insurance v. Miller

854 N.E.2d 693, 367 Ill. App. 3d 263
CourtAppellate Court of Illinois
DecidedAugust 8, 2006
Docket1-05-4086
StatusPublished
Cited by46 cases

This text of 854 N.E.2d 693 (Pekin Insurance v. Miller) 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
Pekin Insurance v. Miller, 854 N.E.2d 693, 367 Ill. App. 3d 263 (Ill. Ct. App. 2006).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

A tree-cutting service operated by Ken Miller was hired to clear trees off certain lots. The trees were cleared from the wrong lots. The tree-cutler’s commercial general liability (CGL) insurer, Pekin Insurance Co., refused to defend Miller against lawsuits brought by the owners of the property trees were removed from. This court must decide whether clearing trees off the wrong lots constitutes an “occurrence” under the CGL policy and whether certain exclusions in the policy bar coverage. The trial court found Pekin has a duty to defend. We agree.

FACTS

In the underlying lawsuit, plaintiffs Chicago Title & Trust Co. as trustee under trust No. 53885, William Givens, Marilyn Givens, John Marek, and Harriet Slayton, filed suit against Miller, d/b/a Miller Tree Service, and Bineet Sarang, d/b/a Sarang Corporation (Sarang), for trespass and violations of the Wrongful Tree Cutting Act (740 ILCS 185/2 (West 2000)). The plaintiffs later added additional counts of negligent trespass. They alleged Sarang hired Miller to remove trees from lots 13, 14, and 15 of a subdivision in Hanover Park, Illinois. Instead, Miller cleared trees from lots 10, 11, and 12, which were owned by the plaintiffs. The lots were cleared without the plaintiffs’ consent or permission, causing damage to their property. Relying on the wording in the complaint, we conclude the “property” plaintiffs alleged was damaged refers to the trees and not the land. Plaintiffs alleged the trees were valued at more than $100,000. They requested damages in excess of $50,000 plus costs.

Miller tendered his defense to his insurer, Pekin Insurance Company (Pekin). Pekin filed a declaratory judgment action, contending certain policy provisions excluded coverage and it was not obligated to defend or indemnify Miller in the underlying action. The circuit court granted Miller’s motion for judgment on the pleadings and denied Pekin’s motion for judgment on the pleadings. The court held “Pekin owes a defense on the underlying tort case.” The court included language in its order finding there was no just cause to delay enforcement or appeal. 155 Ill. 2d R. 304(a). Pekin appeals.

DECISION

An insurer’s duty to defend its insured is determined by the allegations in the underlying complaint. Viking Construction Management, Inc. v. Liberty Mutual Insurance Co., 358 Ill. App. 3d 34, 41, 831 N.E.2d 1 (2005). A duty to defend arises if the complaint’s allegations fall within or potentially within the coverage provisions of the policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204 (1992). The underlying complaint is to be liberally construed in favor of the insured. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74, 578 N.E.2d 926 (1991).

We review a judgment on the pleadings on a de novo basis. State Farm Fire & Casualty Co. v. Tillerson, 334 Ill. App. 3d 404, 407, 777 N.E.2d 986 (2002). The construction of an insurance policy also is a question of law subject to de novo review. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292, 757 N.E.2d 481 (2001).

I. Accident/Occurrence

Pekin contends its CGL policy does not cover the property damage because Miller’s actions do not constitute an “occurrence” under the policy. The policy provides coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Property damage is covered only if the damage is caused by an “occurrence.” An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Pekin contends Miller’s actions were intentional rather than accidental. 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.’ ” Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill. App. 3d 697, 703, 661 N.E.2d 451 (1996), quoting Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619 (1980). “The natural and ordinary consequences of an act do not constitute an accident.” Wil-Freds, 277 Ill. App. 3d at 703. Pekin contends the natural and ordinary consequences of cutting down trees are damaged trees. Although Miller may not have intended to cut down the wrong trees, Pekin says, Miller’s act of cutting down the trees was intentional.

Pekin compares this case to Wil-Freds, where the court held the defective construction of a building resulting in damage to the building itself did not constitute an occurrence under a CGL policy. Wil-Freds, 277 Ill. App. 3d at 704. The court held the construction defects alleged in the complaint for breach of contract were the natural and ordinary consequences of improper construction techniques. Wil-Freds, 277 Ill. App. 3d at 704. In contrast, the plaintiffs in the underlying complaint do not allege Miller used improper techniques in removing trees on their property. Rather, they allege he removed trees on the wrong property.

This case is more similar to Lyons v. State Farm Fire & Casualty Co., 349 Ill. App. 3d 404, 406, 811 N.E.2d 718 (2004), where the underlying complaint alleged the defendant built levees that protruded onto the plaintiffs’ property. The insurer argued the act of constructing levees was intentional and therefore was not an “occurrence” or “accident” covered by the insurance policy. Lyons, 349 Ill. App. 3d at 408. The court held the focus of the inquiry in determining whether an occurrence is an accident is “whether the injury is expected or intended by the insured, not whether the acts were performed intentionally.” (Emphasis in original.) Lyons, 349 Ill. App. 3d at 409, citing Wilkin, 144 Ill. 2d at 77-78. The court held there was no evidence defendant expected or intended to build the levees so that they extended onto the adjoining property. Lyons, 349 Ill. App. 3d at 412.

We reject Pekin’s contention that Miller’s removal of trees on the underlying plaintiffs’ property was intentional and thus not an “occurrence” under the CGL policy. There is no evidence Miller intended the harmful result — the clearing of trees on the wrong property. It is immaterial that the underlying complaint alleges intentional torts. It is the “property damage” that must be “ ‘neither expected nor intended from the standpoint of the insured.’ ” Wilkin, 144 Ill. 2d at 77.

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Cite This Page — Counsel Stack

Bluebook (online)
854 N.E.2d 693, 367 Ill. App. 3d 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pekin-insurance-v-miller-illappct-2006.