State Farm Fire & Casualty Co. v. Tillerson

777 N.E.2d 986, 334 Ill. App. 3d 404, 268 Ill. Dec. 63, 2002 Ill. App. LEXIS 862
CourtAppellate Court of Illinois
DecidedSeptember 18, 2002
Docket5-01-0623
StatusPublished
Cited by50 cases

This text of 777 N.E.2d 986 (State Farm Fire & Casualty Co. v. Tillerson) 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
State Farm Fire & Casualty Co. v. Tillerson, 777 N.E.2d 986, 334 Ill. App. 3d 404, 268 Ill. Dec. 63, 2002 Ill. App. LEXIS 862 (Ill. Ct. App. 2002).

Opinion

JUSTICE KUEHN

delivered the opinion of the court:

Plaintiff State Farm Fire and Casualty Company (State Farm) appeals the trial court’s entry of a judgment on the pleadings for defendant James J. Tillerson, doing business as J.J. Tillerson Construetion Company (Tillerson), in State Farm’s action for a declaration that it had no duty to defend Tillerson in an action by Jeffrey and Debra Cause. The sole issue for review is whether the trial court erred in finding that State Farm had a duty to defend its insured based on the underlying complaint. We reverse.

Tillerson was the holder of a contractor’s liability policy issued by State Farm effective March 14, 1992, through March 14, 1993. A second contractor’s liability policy was issued effective March 14, 1993, through March 14, 1994.

On February 18, 1993, the Causes and Tillerson executed a “Proposed Estimate,” whereby Tillerson, for a fee of $37,602.23, agreed to construct a new room addition and convert the Causes’ existing carport into a garage. Sometime after the completion of the project, the Causes filed suit against Tillerson arising out of the aforementioned agreement. Specifically, the complaint alleged that the Causes were injured as a result of Tillerson’s breach of an express warranty of workmanship, breach of the implied warranty of habitability, and breach of the implied warranty of fitness for ordinary and particular purpose and that the breaches proximately caused the Causes’ damage. The crux of the Causes’ underlying complaint is that Tillerson breached his warranties to the Causes by building over a cistern and failing to take the necessary precautions to prevent uneven settling of the soil beneath the room addition, resulting in the damage identified in the complaint.

Tillerson tendered his defense to State Farm. On November 14, 1996, State Farm filed a complaint seeking a declaration that it had no duty to defend Tillerson in the underlying suit. On March 18, 1997, State Farm filed a motion for a judgment on the pleadings. On April 19, 1997, the Causes filed a motion for a judgment on the pleadings, seeking a summary judgment. On December 5, 1997, the court denied both motions for a judgment on the pleadings. On June 19, 1998, to clarify its prior ruling, the trial court granted the motion for a summary judgment filed by the Causes and denied State Farm’s motion to reconsider.

The certified question is whether State Farm has a duty to defend Tillerson under its contractor’s liability policy against the allegations of the underlying first-amended complaint filed by the Causes. This question includes the following set of issues: (1) whether or not the claims of the breach of an express warranty of workmanship, the breach of the implied warranty of habitability, and the breach of the implied warranty of fitness for ordinary and particular purpose, as specifically described in the underlying complaint against Tillerson, allege an “occurrence” as defined under the liability policy, (2) whether or not the claims specifically described in the underlying complaint against Tillerson allege “property damage” as defined under the liability policy, (3) whether or not exclusionary language contained within the liability policy excludes liability assumed by the insured in a contract or agreement, and (4) whether or not allegations in the underlying complaint trigger exclusions described in the liability policy for damage to the insured’s own work.

On appeal, we review a judgment on the pleadings on a de novo basis. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999). A judgment on the pleadings should be entered if the admissions contained within the pleadings reveal no genuine issues of material fact such that the movant would be entitled to a judgment as a matter of law. Ehlco Liquidating Trust, 186 Ill. 2d at 138, 708 N.E.2d at 1129. We must consider that all well-pleaded facts by the nonmoving party are admitted. Ehlco Liquidating Trust, 186 Ill. 2d at 138, 708 N.E.2d at 1129. We must also examine the pleadings to determine whether a genuine issue of material fact exists, and if we find no such issue, then we determine if the matter at issue can be resolved solely as a matter of law. Ehlco Liquidating Trust, 186 Ill. 2d at 138, 708 N.E.2d at 1129.

To determine an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaint and compare those allegations to the relevant coverage provisions of the insurance policy. Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill. App. 3d 697, 701, 661 N.E.2d 451, 454 (1996). Additionally, we may consider “ ‘true but unpleaded facts, which, when taken together with the complaint’s allegations, indicate that the claim is within or potentially within the policy’s coverage.’ ” Monticello Insurance Co., 277 Ill. App. 3d at 701-02, 661 N.E.2d at 454, quoting Associated Indemnity Co. v. Insurance Co. of North America, 68 Ill. App. 3d 807, 816, 386 N.E.2d 529, 536 (1979). If the underlying complaint alleges facts within or potentially within the policy’s coverage provisions, the insurer has an obligation to defend even if the allegations are groundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926, 930 (1991).

An insurer may not refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case potentially within the policy’s coverage. Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 439, 641 N.E.2d 395, 398 (1994). If the underlying complaint alleges several theories of recovery against the insured, the insurer must defend the insured even if only one such theory is potentially within the coverage of the policy. Wilkin Insulation Co., 144 Ill. 2d at 73, 578 N.E.2d at 930, citing Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 194, 355 N.E.2d 24, 28 (1976).

The threshold that the complaint must satisfy in order to present a potential coverage claim is low. La Rotunda v. Royal Globe Insurance Co., 87 Ill. App. 3d 446, 451, 408 N.E.2d 928, 933 (1980). The underlying complaint and the insurance policy should be liberally construed in favor of the insured. Wilkin Insulation Co., 144 Ill. 2d at 74, 578 N.E.2d at 930. Policy language must be interpreted in its “ ‘plain, ordinary[,] and popular sense,’ ” and where a provision is clear and unambiguous, it will be applied as written. Wilkin Insulation Co., 144 Ill. 2d at 74, 578 N.E.2d at 930, quoting Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill. App.

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Bluebook (online)
777 N.E.2d 986, 334 Ill. App. 3d 404, 268 Ill. Dec. 63, 2002 Ill. App. LEXIS 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-fire-casualty-co-v-tillerson-illappct-2002.