West Bend Mutual Insurance v. People

929 N.E.2d 606, 401 Ill. App. 3d 857, 340 Ill. Dec. 955, 2010 Ill. App. LEXIS 539
CourtAppellate Court of Illinois
DecidedMay 27, 2010
Docket1—08—1693, 1—08—3055, 1—08—3057, 1—08—3058 cons.
StatusPublished
Cited by12 cases

This text of 929 N.E.2d 606 (West Bend Mutual Insurance v. People) 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
West Bend Mutual Insurance v. People, 929 N.E.2d 606, 401 Ill. App. 3d 857, 340 Ill. Dec. 955, 2010 Ill. App. LEXIS 539 (Ill. Ct. App. 2010).

Opinion

JUSTICE NEVILLE

delivered the opinion of the court:

In four separate actions consolidated for this appeal, West Bend Mutual Insurance Company filed four complaints and requested four separate judgments declaring it had no duty to defend its insureds, Father & Sons Contractors, Inc., and Father & Sons Remodelers, Inc. (collectively, Father & Sons), in four separate underlying lawsuits. The trial court entered four orders which granted West Bend summary judgment on all four of its complaints because the court found the underlying lawsuits alleged no occurrences within the purview of the provisions of the insurance policies. In this appeal, Father & Sons contends that the insuring agreements do not include the term “occurrence.” We affirm for the following reasons: (1) we find that the underlying complaints fail to allege an “occurrence” within the purview of the provisions in the policies; (2) we find that the underlying complaints fail to allege property damage within the purview of the provisions in policies; and (3) we find the policies’ exclusions for expected or intended injury also preclude coverage for the acts alleged in the underlying complaints.

BACKGROUND

West Bend sold Father & Sons commercial general liability insurance policies to cover the period from January 2004 through July 2006. Father & Sons paid extra premiums to obtain separate endorsements to cover liability for home repair and remodeling. The endorsements modify the coverage provided under the general liability policies. In the endorsements’ separate insuring agreements, West Bend promised:

“We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘improper home repair and remodeling’ to which this insurance applies. *** We may at our discretion, investigate any incident and settle any claim or ‘suit’ that may result. But:
(1) The most we will pay for ‘improper home repair and remodeling’ at any one ‘residence’ is $10,000 *** unless other amounts are indicated in the Schedule of this endorsement.”

The schedule for the endorsement provides:

“Limit of Liability for ‘property damage’ arising out of ‘improper home repair and remodeling’ — $10,000 per ‘occurrence.’ ”

The home repair and remodeling endorsements also had their own exclusions for expected or intended injury, incomplete work, and the work of subcontractors. The general liability policies define an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policies define “property damage” as “[pjhysical injury to tangible property *** [or ljoss of use of tangible property that is not physically injured.” The endorsement explains, under the exclusion for expected or intended injury, that the insurance does not cover “ ‘improper home repair and remodeling’ knowingly performed by the insured.”

In 2006, the Attorney General of Illinois filed a lawsuit on behalf of the People of Illinois against Father & Sons Contractors and Ronald Kafka, who allegedly controlled both Father & Sons Contractors and Father & Sons Remodelers. The Attorney General alleged that in 1980 the State sued Kafka for violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1979, ch. 121V2, par. 261 et seq.). The court entered an injunction prohibiting certain abuses by corporations Kafka operated. The State sued Kafka and his corporations a second time in 1985. A consent decree ended that case, with Kafka agreeing to disclose all uses of subcontractors and to refrain from intentionally violating building codes. In 2000, Kafka agreed to the entry of another consent decree that barred him from continuing his practice of abusing and deceiving his customers.

According to the 2006 complaint, the pattern of abuse and deception did not stop. The Attorney General alleged:

“a. [Father & Sons Contractors] misrepresented the start and/or completion date of many projects, and if consumers complained about delays, [Father & Sons Contractors] cited the printed provision of the contract which provides for no start or completion date(s).
b. [Father & Sons Contractors] misrepresented that they had not had complaints about their construction work ***.
* * *
f. [Father & Sons Contractors] misrepresented that certain work would be included in construction projects, which was not included.
^ ^
i. [Father & Sons Contractors] entered into contracts for certain work and, after taking a deposit, refused to do the project unless money in excess of the contract price was paid.
j. [Father & Sons Contractors] misrepresented the nature of documents.
k. [Father & Sons Contractors] misrepresented the type and quality of materials that would be used on construction projects.
l. [Father & Sons Contractors] performed work in a shoddy and unworkmanlike manner and caused damage to the homes of the consumers that often went unrepaired, which included, inter alia, leaky roofs, damaged walls, improperly installed gutters and windows, and plumbing defects.
m. [Father & Sons Contractors] misrepresented to consumers that [it] would not use subcontractors *** when, in fact, [it] used subcontractors to do the work.”

The Attorney General listed some of the customers Kafka and Father & Sons Contractors allegedly defrauded in 2004 and 2005. According to the Attorney General’s complaint, Father & Sons Contractors installed a roof for one customer, and the roof leaked, damaging the floor, a ceiling, and some cabinets. For another customer, Father & Sons Contractors installed warped hardwood floors. For another customer, Father & Sons Contractors constructed a porch on rotting support beams. Subcontractors constructing new bedrooms for another customer “incorrectly raised the roof line by 18 inches, eliminating an entire room.”

In the lawsuit, the Attorney General sought a finding that Kafka and Father & Sons Contractors violated the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 2004)) and the Home Repair and Remodeling Act (815 ILCS 513/1 et seq. (West 2004)). The Attorney General asked the court to enjoin Kafka and Father & Sons Contractors from engaging in home repairs and remodeling. In addition, the Attorney General asked for an order directing Kafka and Father & Sons Contractors to pay restitution and a substantial penalty.

Individual homeowners also filed their own lawsuits against Father & Sons.

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Bluebook (online)
929 N.E.2d 606, 401 Ill. App. 3d 857, 340 Ill. Dec. 955, 2010 Ill. App. LEXIS 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-bend-mutual-insurance-v-people-illappct-2010.