411 N.E.2d 1157 (Ill.App. 1 Dist. 1980), 79-1673, Aetna Cas. & Sur. Co. v. Freyer

Docket Nº:79-1673.
Citation:411 N.E.2d 1157, 89 Ill.App.3d 617, 44 Ill.Dec. 791
Party Name:AETNA CASUALTY & SURETY COMPANY, Plaintiff-Appellant, v. Lewis FREYER and Shirley Kleinman, Defendants-Appellees.
Case Date:October 09, 1980
Court:Court of Appeals of Illinois
 
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Page 1157

411 N.E.2d 1157 (Ill.App. 1 Dist. 1980)

89 Ill.App.3d 617, 44 Ill.Dec. 791

AETNA CASUALTY & SURETY COMPANY, Plaintiff-Appellant,

v.

Lewis FREYER and Shirley Kleinman, Defendants-Appellees.

No. 79-1673.

Court of Appeals of Illinois, First District, Fourth Division.

October 9, 1980.

Page 1158

[89 Ill.App.3d 618] [44 Ill.Dec. 792] Slovacek & Slovacek, Crystal Lake (Elmer F. Slovacek, Crystal Lake, of counsel), for plaintiff-appellant.

Lawrence L. Kotin, Chicago (Lawrence L. Kotin and Michael W. Rathsack, Chicago, of counsel), for defendants-appellees.

ROMITI, Justice:

The defendant, Lewis Freyer, was sued for maliciously assaulting another person and maliciously damaging certain property. His insurer filed an action for declaratory judgment seeking a declaration of no coverage. The trial court ruled that the insurer was required to provide a defense. We disagree and reverse.

Shirley Kleinman filed an action against defendant alleging in Count I that on June 25, 1974 he wrongfully and violently assaulted her, struck her with his fists in the face and on the body, blacking an eye, bruising and injuring her head and face and tearing out some of her hair; that on [89 Ill.App.3d 619] November 28, 1974 the defendant violently assaulted plaintiff and wrongfully struck her with his fist injuring her face; that these assaults and batteries were wanton, wilful and malicious on the part of the defendant. She prayed for compensatory and punitive damages and asked the court to find that malice was the gist of the action. In Count II of the complaint, she alleged that on June 25, 1974 defendant entered her premises where he violently, wantonly, wilfully and wrongfully proceeded to destroy and remove the plaintiff's telephone from the wall. The plaintiff again prayed for compensatory and punitive damages and asked the court to find that malice was the gist of the complaint.

Defendant's insurer, Aetna Casualty & Surety Company, sought a declaratory judgment that there was no coverage and therefore no duty either to defend or to indemnify. The trial court dismissed the action, without prejudice, as being premature. The appellate court dismissed the insurer's appeal for want of jurisdiction, there being no final order. However, the Illinois Supreme Court in a supervisory order

Page 1159

[44 Ill.Dec. 793] remanded the cause to the trial court with directions to overrule the motion to dismiss the complaint and hear the case. The trial court on remand ruled that the insurer was required to provide a defense in the tort action and the insurer again appealed. In the interim, the tort plaintiff dismissed her complaint. Accordingly, the only issue before this court is whether the insurer is liable for the costs of defense.

The policy insures against liability caused by an occurrence. An occurrence is defined as an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage. This extension of coverage from "accidents" to "occurrences" has been considered to broaden coverage, and eliminates the need for an exact finding as to the cause of damages so long as they are neither expected nor intended from the standpoint of the insured. (7A Appleman Insurance Law and Practice (Berdal ed.) § 4493.) Nevertheless, the occurrence must still be accidental. An accident has been defined as an unforseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character. The natural and ordinary consequences of an act do not constitute an accident. (Farmers Elevator...

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