Badger Mutual Ins. Co. v. Murry

• Decision Date: 18 November 1977
• Docket Number: No. 77-36,77-36
• Citation: 54 Ill.App.3d 459,12 Ill.Dec. 672,370 N.E.2d 295
• Parties: , 12 Ill.Dec. 672 BADGER MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Appellee, v. Kevin MURRY, Leland Glubczynski, the City of Peru, a Municipal Corporation, and United States Fidelity and Guaranty Company, a corporation, Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 295

370 N.E.2d 295

54 Ill.App.3d 459, 12 Ill.Dec. 672

BADGER MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Appellee, v. Kevin MURRY, Leland Glubczynski, the City of Peru, a

Municipal Corporation, and United States Fidelity

and Guaranty Company, a corporation,

Defendants- Appellants.

No. 77-36.

Appellate Court of Illinois, Third District.

Nov. 18, 1977.

Louis E. Olivero, Peru, for defendants-appellants.

T. Donald Henson, LaSalle, of counsel, Herbolsheimer, Lannon & Henson, P. C., LaSalle, for plaintiff-appellee.

SCOTT, Justice.

This is an appeal from the circuit court of LaSalle County which in a declaratory judgment action found that the plaintiff, Badger Mutual Insurance Company, was under no duty to provide coverage for any potential liability which might result from the actions of the defendant Kevin Murry (hereinafter referred to as the defendant Murry), such finding being based on an exclusionary clause in an omnibus insurance policy issued by the plaintiff to the parents of Murry. The only defendant appealing from the judgment of the trial court is Leland Glubczynski (referred to hereinafter as the appellant).

The scenario of events which resulted in this appeal is as follows.

On August 4, 1973, the defendant Murry commenced visiting at approximately 9:30 P. M. establishments which sold alcoholic beverages. After patronizing four of such businesses and consuming "rum and coke" drinks at each place he attempted to drive his own automobile in the city of Peru sometime between 1:00 A. M. and 2:00 A. M. on August 5, 1973. In his attempt to drive the defendant Murry struck three parked automobiles. The appellant Glubczynski, a police officer in the city of Peru, was called to investigate the accidents. Upon his arrival at the scene the appellant requested Murry's drivers license and upon his request being ignored, the appellant placed Murry under arrest.

While Murry was sitting in the squad car he began smoking a cigarette and set fire to the carpeting in the car. The appellant requested Murry's cigarettes, however, this request was also denied. The appellant Glubczynski then proceeded to partially enter the rear of the automobile for the purpose of obtaining the smoking material. The defendant Murry commenced kicking the appellant in the face, on the nose and the right hand, which resulted in breaking the appellant's right thumb. With the help of a fellow police officer the defendant Murry was subdued and placed in the city jail. At the police station Murry refused to take a breathalyzer test.

On January 27 the plaintiff Badger Mutual Insurance Company filed a complaint for declaratory judgment which sought an order of the circuit court of LaSalle County declaring that it did not owe the defendant Murry any coverage for, or a defense to, any action subsequently brought by the appellant Glubczynski for money damages as the result of injuries sustained by him from Murry as the result of the melee on August 5, 1973. The plaintiff insurance company had issued to Murry's parents a homeowners policy which provided omnibus protection but which contained an exclusionary coverage provision which read as follows:

"f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured."

On July 23, 1975, the appellant Glubczynski brought suit in the LaSalle County Circuit Court which sought actual and punitive damages for injuries received in the altercation on August 5, 1973, with the defendant Murry. The suit was entitled Leland Glubczynski v. Kevin Murry, No. 75-L-162.

On November 29, 1976, the trial court entered an order in the declaratory judgment action which declared inter alia that Badger Mutual, the plaintiff, was not obligated to defend the defendant Murry, nor to pay in his behalf any sums of money as damages, judgments, costs, or fees of any nature in the lawsuit brought against him by the appellant and which we described above as being case number 75-L-162.

As we have previously stated, this appeal ensued since the appellant Glubczynski challenges the correctness of the trial court's findings and judgment.

The appellant's sole contention in this appeal is that the trial court erred in ordering that the plaintiff insurance company be relieved of any duty to provide coverage for liability resulting from the defendant Murry's actions.

This broad contention is predicated upon two acts of the trial court which the appellant assigns as reversible error. The first action of the trial court of which the appellant complains is that the trial court took judicial notice of his complaint for personal injuries filed approximately seven months after the instant case. We believe that a trial court has not only a right but may well have an obligation approaching the mandates of a duty to take judicial notice of pleadings in order to determine whether an insurer should be required to defend a suit against an insured. (Sims v. Illinois National Casualty Co. (1963), 43 Ill.App.2d 184, 193 N.E.2d 123, 126.) In Sims this court referred to 7 Am.Jur.2d, Automobile Insurance, Sec. 162, and quoted as follows:

"As a general rule, and in accordance with the usual or standard policy provision itself, the obligation of an automobile liability insurer to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint or petition in such action. As to the test for determining whether particular allegations require the insurer to defend the action brought against the insured, the general rule is that the insurer is under a duty to defend a suit against the insured where the complaint or petition in such suit alleges a state of facts within the coverage of the policy, but is free of such obligation where the alleged facts fail to bring the case within the policy coverage."

The duty of an insurer to defend its insured in an action for injuries must be judged by allegations of complaint. See Wheeler v. Aetna Casualty and Surety Company (1974), 57 Ill.2d 184, 311 N.E.2d 134; McFadyen v. North River Insurance Co. (1965), 62 Ill.App.2d 164, 209 N.E.2d 833. This court followed this precise rule in the case of Dorre v. Country Mutual Insurance Co. (1977), 48 Ill.App.3d 399, 6 Ill.Dec. 782, 363 N.E.2d 464.

The trial court properly examined the complaint filed by the appellant against the defendant Murry and after examining the same could only conclude that the allegation pleaded therein had the effect of making the exclusionary clause of the home-owner's insurance policy operative. Paragraph 5 of the appellant's complaint against the defendant Murry alleges:

"5. The attack by defendant upon plaintiff was unprovoked by plaintiff and was made with intent on the part of the defendant to severely injure and maim plaintiff."

The allegations contained in the complaint of the appellant are judicial admissions and are conclusive against the pleader. See Precision Extrusions, Inc. v. Stewart (1962), 36 Ill.App.2d 30, 183 N.E.2d 547. The judicial admission by the appellant that the defendant attacked him with intent to severely injure and maim him squarely placed the appellant within the exclusionary clause of the omnibus policy which excluded coverage to bodily injury which is either expected or intended from the standpoint of the insured.

We attach no significance to the fact that the appellant's complaint was not verified. American Jurisprudence 2d in discussing the effect of verified and unverified pleadings concluded that the modern view is that:

"* * * (T)he statements in a pleading are not rendered inadmissible against the pleader by the fact that he did not verify the pleading or that there was an irregularity in his verification, if it appears that he authorized the allegations, signed the pleading, or otherwise approved the allegations thereof after it was drawn." (29 Am.Jur.2d, Evidence, Sec. 691, pages 745, 746.)

We cannot agree with the appellant's contention that the trial court committed error when it took judicial notice of his complaint for...