American Family Mut. Ins. Co. v. Savickas

• Decision Date: 28 September 2000
• Docket Number: No. 87585.,87585.
• Citation: 250 Ill.Dec. 682,193 Ill.2d 378,739 N.E.2d 445
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. Michael SAVICKAS et al., Appellees.
• Court: Illinois Supreme Court

739 N.E.2d 445

193 Ill.2d 378

250 Ill.Dec. 682

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. Michael SAVICKAS et al., Appellees.

No. 87585.

Supreme Court of Illinois.

September 28, 2000.

Rehearing Denied November 27, 2000.

Kiesler & Berman, of Chicago (Robert L. Kiesler, John J. Piegore, Shannon F. O'Shea and Donald E. Elder, of counsel), for appellant.

William E. Reynolds, of Chicago (Timothy Quinn, of counsel), for appellee Michael Savickas.

Jerry A. Latherow, of Chicago (Charles A. Porretta, of counsel), for appellee Elizabeth Vinicky.

Justice FREEMAN delivered the opinion of the court:

Michael Savickas stands convicted of the first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)) of Thomas S. Vinicky (Thomas). Elizabeth Vinicky, the administrator of Thomas's estate (Elizabeth), has sued Savickas for wrongful death and survival. Savickas tendered the defense of his suit to his insurer, American Family Mutual Insurance Company (American Family). American Family filed the instant declaratory judgment action to determine whether it must defend or indemnify Savickas. American Family contends that it should be excused from doing so because the policy did not apply to bodily injury "expected or intended by any insured." The circuit court of Cook County granted American Family summary judgment. Savickas and Elizabeth appealed, and the appellate court reversed, with one justice dissenting. 304 Ill.App.3d 614, 238 Ill.Dec. 188, 711 N.E.2d 1. We granted leave to appeal (177 Ill.2d R. 315(a)), and now reverse.

BACKGROUND

Savickas shot and killed Thomas outside the New Gold Coast Inn in March 1988. Elizabeth brought suit against Savickas in her capacity as the administrator of Thomas' estate, eventually filing the amended four-count complaint upon which American Family was granted summary judgment. Count I of the amended complaint, captioned "Intentional Tort/Murder/Wrongful Death," brought a claim under the Wrongful Death Act (Ill.Rev.Stat.1987, ch. 70, par. 1 et seq.) for Thomas' children's loss of affection. Count II, captioned "Intentional Tort/Murder Survival Action," sought damages for Thomas' pain and suffering prior to his death. Count III, captioned "Negligence/Wrongful Death," was, like count I, a claim under the Wrongful Death Act. However, this count alleged that Savickas had been negligent in shooting Thomas, in that he either negligently shot him, "negligently assessed a need for self defense" when he shot him, or both. Count IV, captioned "Negligence/Survival Action," sought damages for Thomas' pain and suffering prior to his death and contended that Savickas had been negligent in the same manner alleged in count III. Savickas tendered his defense to his homeowner's insurer, American Family. American Family paid for Savickas' defense. However, American Family also filed the instant declaratory judgment action against Savickas and Elizabeth, seeking a determination that Savickas' acts were excluded from coverage and that as a result American Family owed him neither the duty to indemnify nor the duty to defend. Relying on language in its policy, American Family moved for summary judgment in the declaratory judgment action. The policy provides in relevant part that American Family would

"pay, up to our limit, all sums for which any insured is legally liable because of bodily injury or property damage caused by an occurrence covered by this policy. We will defend any suit, even if the suit is groundless, false or fraudulent provided the suit resulted from bodily injury or property damage not excluded under this coverage." (Emphasis omitted.)

An "Exclusions" portion of the policy provided in part that the above coverage should not apply to bodily injury or property damage "which is expected or intended by any insured." American Family provided the court with a certified copy of Savickas' April 1990 conviction and a copy of the appellate court opinion affirming that conviction (People v. Savickas, 230 Ill.App.3d 322, 171 Ill.Dec. 713, 594 N.E.2d 1233 (1992)). American Family also attached excerpts from the transcript of Savickas' testimony at his criminal trial. In those excerpts Savickas admitted that the gun did not go off accidentally. He testified to the effect that he intentionally pointed the gun at the decedent and intentionally pulled the trigger while the gun was so aimed.

The trial court denied American Family's motion in October 1994. Subsequently, in April 1995, the court dismissed the declaratory judgment action with leave to reinstate after final resolution of Savickas' post-conviction petition, which was then still pending. The court reinstated the case on American Family's motion in August 1996 after the dismissal of Savickas' post-conviction petition was affirmed on appeal.

In November 1996 the trial court reconsidered its earlier ruling and granted summary judgment to American Family. The court held that based on Savickas' conviction and the testimony he gave at his criminal trial, there was conclusive proof that Savickas had expected to cause harm. The court explicitly ruled only that Savickas had "expected" the harm, not that he had "intended" it. The court stated that this ruling would have no impact on the underlying case.

Savickas and Elizabeth appealed, and the appellate court reversed. 304 Ill. App.3d 614, 238 Ill.Dec. 188, 711 N.E.2d 1. The appellate court held that an insurer's duty to defend is determined solely according to the allegations of the complaint in the underlying case. Since the negligence allegations in the complaint were potentially covered by the policy, the insurer had the duty to defend. The appellate court held that it was precluded from according estoppel effect to Savickas' criminal conviction by this court's decision in Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335 (1978). This appeal followed.

ANALYSIS

Here, American Family presents several alternative arguments for affirming the trial court's grant of summary judgment. In one way or another, all of the arguments are based on Savickas' criminal conviction. Because we find that it is proper in this case to accord estoppel effect to the criminal conviction, we need not consider the other arguments raised by appellant.

I. Contract Construction

Initially, we note that the parties do not allege any circumstance obligating the insurer to defend the insured other than the contract between them. Accordingly, the threshold issue is one of contract construction. The construction of an unambiguous insurance policy provision is a question of law, and the policy's terms are to be applied as written unless those terms contravene public policy. Roberts v. Northland Insurance Co., 185 Ill.2d 262, 235 Ill.Dec. 579, 705 N.E.2d 762 (1998). The pertinent language in the contract in this case is relatively straightforward. American Family contracted to "defend any suit, even if the suit is groundless, false or fraudulent provided the suit resulted from bodily injury or property damage not excluded under this coverage." Excluded from coverage was bodily injury or property damage "which is expected or intended by any insured." Thus, according to the relevant terms of the contract, American Family is obligated to defend Savickas, its insured, from any suit except suits for bodily injury or property damage which he expected or intended. The parties call to our attention no public policy concern which might militate against applying this language as written.

II. Estoppel by Prior Criminal Conviction

American Family contends that it should not be required to defend or indemnify Savickas because his criminal prosecution conclusively established that he intended the injury. American Family recognizes that this argument is contrary to this court's decision in Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335 (1978), but urges nevertheless that Savickas should be estopped, especially considering the fact that he was convicted of first degree murder.

Thornton was an appeal from a garnishment action by a judgment creditor against an insurer. The creditor obtained a default judgment on a negligence theory against the insured, then attempted to collect the judgment from the insurer. There, as here, the insurer contended that its insured's criminal conviction should be held to conclusively establish that the acts in question fell within a policy exclusion. We declined to find a criminal conviction constituted conclusive proof of the facts upon which it was based. Rather, we held a conviction constituted only prima facie evidence, which would "preserve[] the opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding." Thornton, 74 Ill.2d at 151, 23 Ill.Dec. 541, 384 N.E.2d 335. For the reasons stated below, we overrule this portion of Thornton.

In Thornton we stated that the "majority of courts which permit the use of criminal convictions as evidence in civil cases appear to hold * * * that the criminal conviction is prima facie evidence of the facts. (See Annot., 18 A.L.R.2d 1287, 1301 (1951).)" Thornton, 74 Ill.2d at 149,23 Ill.Dec. 541,384 N.E.2d 335. This observation no longer holds true. As the Arkansas Supreme Court recently observed, "today in the vast majority of jurisdictions * * * a criminal conviction now acts as a bar and collaterally estops the retrial of issues in a later civil trial that were actually litigated in the criminal trial." Zinger v. Terrell, 336 Ark. 423, 428, 985 S.W.2d 737, 740 (1999) (collecting authorities and overruling its prior precedent to allow estoppel effect to be accorded to criminal convictions). Commentators have observed for years that this practice has become increasingly accepted with the demise of the mutuality requirement. See, e.g., T. Sawaya, Use of Criminal Convictions in Subsequent Civil Proceedings: Statutory Collateral Estoppel Under Florida and Federal Law...