Maryland Cas. Co. v. Peppers

• Citation: 329 N.E.2d 788,29 Ill.App.3d 26
• Decision Date: 10 June 1975
• Docket Number: No. 73--141,73--141
• Parties: MARYLAND CASUALTY COMPANY, a Corporation, Plaintiff-Appellees, v. Robert M. PEPPERS and Tincy Peppers, Defendants. James W. MIMS, Defendant-Appellant, and Robert M. Peppers and Tincy Peppers, Counter-Plaintiff-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Counter-Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 788

329 N.E.2d 788

29 Ill.App.3d 26

MARYLAND CASUALTY COMPANY, a Corporation, Plaintiff-Appellees, v. Robert M. PEPPERS and Tincy Peppers, Defendants.

James W. MIMS, Defendant-Appellant, and Robert M. Peppers and Tincy Peppers, Counter-Plaintiff-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY,

Counter-Defendants-Appellees.

No. 73--141.

Appellate Court of Illinois, Fifth District.

June 10, 1975.

Sprague, Sprague & Ysursa, Belleville (Bernard J. Ysursa, Belleville, of counsel), for defendant-appellant.

Cornelius Thomas Ducey, Jr., Ducey & Feder, Ltd., Belleville, for counter-defendant-appellee.

John F. O'Connell, O'Connell & Waller, Belleville, for plaintiff-appellee.

CREBS, Justice.

Maryland Casualty Company filed a complaint for declaratory judgment in the Circuit Court of St. Clair County requesting the court to construe the liability insurance policy purchased by Peppers from Maryland Casualty. Maryland Casualty disclaimed liability under the policy. The defendants to this action were Peppers and Mims. Later Peppers filed a counterclaim against St. Paul Fire and Marine Insurance Company seeking a declaratory judgment that St. Paul was liable to Peppers for any judgment received by Mims against Peppers in a separate civil case. St. Paul filed an answer to the counterclaim in which it denied that it insurance policy issued to Peppers provided coverage. Peppers then filed what was labeled an 'affirmative defense' alleging that St. Paul, by its conduct and actions, had waived its right to disclaim insurance coverage.

Upon a trial of these issues, the court found in favor of the plaintiff, Maryland Casualty on the complaint for declaratory judgment. The court found that Maryland Casualty was not liable under its insurance policy issued to Peppers for two reasons: 1) the policy covered only 'unintentional injuries' and the injury to Mims was intentionally caused by Peppers and 2) the insurance policy did not cover the premises involved. With respect to the counterclaim, the court found that St. Paul was not liable under its insurance policy issued to Peppers. This was based upon the finding that the injury to Mims was caused intentionally and the insurance policy did not apply to such injuries. The court also found that because St. Paul had undertaken the defense of Peppers, it was obligated to defend Peppers in the action brought by Mims even though it was not liable for any judgment awarded to Mims.

Defendants-Appellants, Mims and Peppers, both filed timely notices of appeal requesting reversal of the findings that the two insurance companies were not liable for the injury to Mims. St. Paul also filed a notice of appeal in which it requested reversal of the finding that it was obligated to defend Peppers in the civil case brought by Mims.

The instant case arose from an incident on January 18, 1971 in which Robert Peppers shot and seriously wounded James Mims. Peppers owned three buildings located at 8408 1/2, 8412, and 8414 Collinsville Road in East St. Louis. Tincy's Pizza House was located at 8408 1/2, 8412 was a 'block building,' and Peppers' home was located at 8414. Peppers had been sleeping in the building at 8408 1/2 because that building had been burglarized several times. In the early morning hours, Peppers was awakened by some people running outside the building. Peppers picked up his shotgun and pointed it toward the door. He then 'heard the door break' and saw a person running outside. Peppers pointed his gun out the door, shouted for the man to stop, saw what he thought was a gun in the man's hand and fired one shot.

Mims subsequently filed a civil suit in the Circuit Court of St. Clair County against Peppers as a result of this shooting incident and this case is still pending.

While there is some conflict in the testimony, it is clear that Peppers fired a shotgun loaded with 00 buckshot at Mims from close range. From a review of the facts we conclude that the trial court was correct in holding that this was an occurrence expected or intended from the standpoint of the insured and thus not within the coverage under...