Hubbard v. Aetna Ins. Co.
| Citation | 347 N.E.2d 396,37 Ill.App.3d 666 |
| Decision Date | 20 January 1976 |
| Docket Number | No. 59984,59984 |
| Parties | Mattie HUBBARD, Administrator of the Estate of James Hubbard, Deceased, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
John Bernard Cashion, Chicago, for plaintiff-appellant.
Clausen, Miller, Gorman, Caffrey & Witous, Chicago (James T. Ferrini, Stephen D. Marcus, Chicago, of counsel), for defendants-appellees.
This is an appeal from an order of the circuit court of Cook County dismissing counts of a wrongful death action alleging negligence and wilful and wanton conduct on the part of defendants as insurers who had conducted inspections of the premises on which plaintiff's decedent was killed. The trial court found the allegations against the defendants were insufficient to plead a proper cause of action and dismissed these counts. Plaintiff's appeal challenges the correctness of the dismissal.
The facts of the case are as follows. On July 26, 1970 James Hubbard, while working as a pellet mill operator, was killed by an explosion at Garvey Grain, Inc. (hereinafter Garvey) in Chicago, Illinois. Mattie Hubbard, James Hubbard's wife and administrator of his estate (hereinafter plaintiff), brought a wrongful death action pursuant to section 1 of the Wrongful Death Act (Ill.Rev.Stat.1969, ch. 70, par. 1), against California Pellet Mill Co., Willard W. Garvey, Garvey, Inc., Garvey Center, Inc., Garvey Elevators, Inc., Garvey Investments, Inc., and Garvey Industries, dustries, Inc., as well as Aetna Insurance Company, Factory Insurance Association (FIA) and all 48 named member insurance companies of FIA. This appeal is only concerned with the allegations against the latter insurance groups.
FIA, an unincorporated voluntary association of separate and independent member companies, and its members are named as defendants in plaintiff's amended complaint in both their group and individual capacities. According to the allegations of the amended complaint, the defendants afforded coverage to Garvey in the nature of fire insurance for damage to property resulting from fire and/or explosion for all Garvey locations, including the plant in Chicago where decedent was killed. During the three years prior to the explosion defendants conducted seven inspections of Garvey and made certain recommendations so as to prevent or reduce the possibility of fire and/or explosion. The reports made by defendants described the pellet mill machinery operation as 'unsafe.' Defendants recommended Garvey improve or eliminate the dust conditions on their premises, but Garvey failed to follow these recommendations or eliminate the 'unsafe' conditions described by defendants in their inspection reports.
Count IV of plaintiff's amended complaint alleged defendants' maintenance of a nuisance was a proximate cause of Hubbard's death. This count was dismissed by the trial court for failure to state a cause of action. Plaintiff has not appealed that dismissal.
Counts V and VI, which charge defendants as a group and as individuals with negligence, read:
'The Defendant Member Companies and Defendant, FACTORY INSURANCE ASSOCIATION, were guilty of one or more of the following negligent acts of omissions:
a) failed to perform adequate inspections of the property of GARVEY in that certain recommendations made by said defendant for safety purposes, were not required by said defendant to be accomplished within a reasonable period of time;
b) failed to perform adequate inspections of the property of GARVEY in that recommendations made by said defendant for safety purposes were never required by said defendant to be accomplished at any time pursuant to a tacit understanding that said defendant would continue to provide insurance coverage on said location so long as said defendant received the premium income from all or substantially all other Garvey locations.'
Counts VII and VIII charge defendants with wilful and wanton conduct, realleging the allegations of negligence with the additional charge of a 'conscious disregard for safety.'
Defendants moved to dismiss the charges on the ground that section 5(a) of the Workmen's Compensation Act (Ill.Rev.Stat.1969, ch. 48, par. 138.5(a)), barred plaintiff's action, and for failure to sufficiently allege facts constituting a proper cause of action. The trial court held the workmen's compensation statute was not applicable to FIA but allowed the motion to dismiss on the basis plaintiff had not alleged ultimate facts constituting any act of negligence or a proper cause of action. Plaintiff was given an opportunity to amend the amended complaint. Upon the failure to do so, the trial court dismissed counts IV-VIII with prejudice. The trial court's order specified the matter remained pending as to defendants other than Aetna Insurance Company and other named member insurance companies of FIA, and found there was no just reason for delay of appeal from the order. Plaintiff appeals the dismissal of counts V-VIII which allege the negligence and wilful and wanton conduct of defendants as the proximate cause of plaintiff's decedent's death.
The main issue to be determined on this appeal is whether the trial court properly dismissed the counts against defendants for failure to sufficiently plead ultimate facts stating a cause of action.
Plaintiff's action was brought under the Illinois Wrongful Death Act (Ill.Rev.Stat.1969, ch. 70, par. 1), which provides:
'Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then * * * the person who * * * would have been liable if death had not ensued, shall be liable to an action for damages * * *.'
In pleading a wrongful death claim, there must be an allegation of a wrongful act, neglect, or default on the part of the defendant causing the death under such circumstances cumstances as would entitle the decedent to maintain an action for damages if death had not ensured. See Shanowat v. Checker Taxi Co., Inc. (1st Dist. 1964), 48 Ill.App.2d 81, 88--89, 198 N.E.2d 573; 16 I.L.P. Death § 40.
At the outset we are mindful of the basic principles that defendants' motion to dismiss admits as true for the purpose of the motion, all facts well pleaded together with all reasonable inferences which could be drawn from these facts. However, as said in O'Fallon Development Co., Inc. v. Ring 1967), 37 Ill.2d 84, 88, 224 N.E.2d 782, 784, '* * * a motion to dismiss admits facts well pleaded; but it admits them only for the purpose of determining whether, as a matter of law, those facts state a claim upon which relief may be granted.' Cf. Burke v. Sky Climber, Inc. (1974), 57 Ill.2d 542, 545, 316 N.E.2d 516.
Guided by these principles, we must determine if the facts pleaded sufficiently allege defendants' negligence or wilful and wanton conduct, such that plaintiff's decedent could have recovered for his injuries if he had lived. To sufficiently plead negligence or wilful and wanton conduct, plaintiff must allege facts showing a duty of defendant and a breach of that duty which was a proximate cause of an injury to plaintiff. (Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307.) In the case at bar, the trial court ruled there was 'an insufficiency of acts pleaded in Counts V-VIII to constitute negligence; that the failure to cancel insurance as alleged by virtue of Garvey's not following Aetna's recommendations does not state a cause of action there being no duty to cancel insurance on this basis.'
Plaintiff contends she has alleged more than a mere duty to cancel insurance; she has alleged a failure to perform adequate inspections at required by Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 199 N.E.2d 769, a case upon which plaintiff principally relies. In Nelson several construction workers were killed or injured when a temporary hoist upon which they were riding fell. The defendant insurance company, which provided workmen's compensation and public liability insurance coverage to the general contractor of the construction project, was held liable under common law negligence standards for failing to exercise due care when performing gratuitous safety inspections of the construction site. In Nelson the defendant failed to warn the company against the unsafe practice of permitting personnel to ride the hoist.
Plaintiff argues she has sufficiently alleged a...
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