Illinois Cas. Co. v. Peters

• Decision Date: 15 June 1979
• Docket Number: No. 78-196,78-196
• Citation: 29 Ill.Dec. 284,73 Ill.App.3d 33,391 N.E.2d 547
• Parties: , 29 Ill.Dec. 284 ILLINOIS CASUALTY COMPANY, an Interinsurance Exchange, Plaintiff-Appellant, v. Velma PETERS, Administrator of the Estate of James B. Albright, d/b/a I. R. Here Tavern, Kimberly Ann Albright, by her Mother and Next Friend, Debra Albright, and Debra Albright, Individually, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 547

391 N.E.2d 547

73 Ill.App.3d 33, 29 Ill.Dec. 284

ILLINOIS CASUALTY COMPANY, an Interinsurance Exchange, Plaintiff-Appellant, v. Velma PETERS, Administrator of the Estate of James B.

Albright, d/b/a I. R. Here Tavern, Kimberly Ann Albright, by

her Mother and Next Friend, Debra Albright, and Debra

Albright, Individually, Defendants-Appellees.

No. 78-196.

Appellate Court of Illinois, Third District.

June 15, 1979.

James E. Bowles and Charles W. Pautsch, Heyl, Royster, Voelker & Allen, Peoria, for plaintiff-appellant.

Larry T. Frantz, Law Offices of Raymond C. Rose, Peoria, for defendants-appellees.

BARRY, Presiding Justice:

This appeal concerns the interpretation of an exclusion to coverage clause in a dram shop insurance policy. The plaintiff, Illinois Casualty Company, by complaint for declaratory judgment petitioned the Circuit Court of Peoria County to obtain a declaration of its rights under a dram shop insurance policy issued to Keith E. and Delores Dalrymple as owner and James B. Albright as licensee of the I. R. Here Tavern. This declaration was necessary to determine the rights and obligations with respect to a suit brought by the dependents of James B. Albright, deceased, for loss of means of support pursuant to the Dram Shop Act (Ill.Rev.Stat. 1977, ch. 43, par. 135).

A complaint had been filed by the dependent-survivors of James B. Albright under ch. 43, par. 135, commonly known as the Dram Shop Act for loss of means of support. This complaint alleged that plaintiffs' means of support had been injured by the act of James B. Albright, d/b/a I. R. Here Tavern, in giving or selling beer or alcoholic liquor to Wayne Inman. It is alleged that later that same evening, Inman then drove his automobile into a vehicle driven by Albright causing Albright's death.

The plaintiff herein issued a dram shop insurance policy on July 2, 1975, to James B. Albright, d/b/a I. R. Here Tavern. The policy listed as the named insureds, James B. Albright as licensee and Keith E. and Delores Dalrymple as owner. The insurance policy contained language by which the plaintiff sought to exclude the defendants, Velma Peters, administrator of the estate of James B. Albright, d/b/a I. R. Here Tavern, Kimberly Ann Albright, by her mother and next friend, Debra Albright, and Debra Albright individually, from the coverage of the plaintiff's insurance policy.

The trial court held that the exclusion portion of the dram shop insurance contract between the plaintiff insurance company and the insureds did not exclude from coverage liability arising out of a cause of action against the administrator of the estate of the named insured-licensee by his dependents. The plaintiff has appealed from that adverse ruling.

The general issue raised on review is whether the trial court erred as a matter of law in holding the exclusionary language of the dram shop insurance policy as not applying to prevent coverage in the circumstances of this case. More simply the issue is whether the policy of dram shop insurance issued by the plaintiff provided coverage for the claim raised by the dependents of the insured operator of the tavern.

The Dram Shop Act (Ill.Rev.Stat.1977, ch. 43, par. 135) provides that a person whose person or property is injured by an intoxicated person has a right of action severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication in whole or in part of such person. The liability under the Dram Shop Act includes within its scope not only the sellers or givers of the intoxicating beverages, but also the owners or lessors who lease or who permit the occupation of any building with the knowledge that intoxicants are to be sold therein. The act also includes actions for damage to means of support caused by an intoxicated person or in consequence of the intoxication of any person.

The facts involved in this suit are not in dispute. The construction of language used in an insurance policy and the effect of the policy are questions of law. (Hartford Accident and Indemnity Co. v. Case Foundation (1973), 10 Ill.App.3d 115, 294 N.E.2d 7). The question of insurance coverage being one of law it may be determined on appeal independently of the judgment of the trial court. (Matter of Estate of Hoyman (1960), 27 Ill.App.2d 438, 170 N.E.2d 25 (where all the facts were admitted by pleadings)). We will hereafter examine the language of the dram shop insurance contract upon which the plaintiff bases its claim for exclusion from coverage.

It is a cardinal principle of construing and interpreting contract language that if such language is clear and unambiguous it should be given its normal ordinary meaning. (Smiley v. Estate of Toney (1968), 100 Ill.App.2d 271, 241 N.E.2d 116). Although we will also consider the intention of the parties in entering into this contract of insurance we will not allow that purported intention to alter what we believe are otherwise clear and unambiguous words used in the written contract of insurance. (Dawe's Laboratories, N.V. v. Commercial Insurance Company of Newark, N.J. (1974), 19 Ill.App.3d 1039, 313 N.E.2d 218). More importantly any ambiguity, as alleged by the plaintiff, in the insurance contract must be construed against the plaintiff and in favor of providing insurance coverage generally, as was obviously intended by the insureds in purchasing the policy. Reznick v. Home Ins. Co. (1977), 45 Ill.App.3d 1058, 4 Ill.Dec. 525, 360 N.E.2d 461; Grahame v. Mitchell, (1975), 28 Ill.App.3d...