Maryland Cas. Co. v. Peppers, No. 47755

• Court: Supreme Court of Illinois
• Writing for the Court: RYAN; CREBS
• Citation: 355 N.E.2d 24,64 Ill.2d 187
• Docket Number: No. 47755
• Decision Date: 20 September 1976
• Parties: MARYLAND CASUALTY COMPANY, Appellee, v. Robert M. PEPPERS et al., Appellees. Appeal of ST. PAUL FIRE & MARINE INSURANCE COMPANY.

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355 N.E.2d 24 64 Ill.2d 187 MARYLAND CASUALTY COMPANY, Appellee,
v.
Robert M. PEPPERS et al., Appellees.
Appeal of ST. PAUL FIRE & MARINE INSURANCE COMPANY. No. 47755. Supreme Court of Illinois. Sept. 20, 1976.

[64 Ill.2d 190]

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Ducey & Feder, Ltd., Belleville (Cornelius T. Ducey, Jr., Belleville, of counsel), for appellant.

Sprague, Sprague & Ysursa, Belleville (Bernard J. Ysursa, Belleville, of counsel), for appellees.

RYAN, Justice:

Plaintiff, Maryland Casualty Company (Maryland), filed a suit for declaratory judgment against Robert and Tincy Peppers and James Mims for a declaration of whether under a policy of liability insurance there was a duty to defend its insured Peppers in a personal injury action filed by MIMS, who had been shot by Robert Peppers, and for a declaration of whether there was coverage under the policy for this occurrence. Peppers later filed a counterclaim for declaratory judgment against St. Paul Fire & Marine Insurance Company (St. Paul) seeking a declaration that the occurrence was covered and that St. Paul was required to defend the personal injury action under a homeowner's insurance policy it had issued on Peppers' residence. The policies issued by Maryland and by St. Paul both specifically excluded coverage for injuries intentionally inflicted.

[64 Ill.2d 191] After a bench trial the circuit court of St. Clair County found that Peppers had intentionally caused the injury and therefore the occurrence was not covered by the Maryland policy and also found that the property on which the occurrence happened was not the property insured by the general liability policy issued by that company. As to St. Paul, the court found that the act was an intentional act and that this alone

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is sufficient to hold that there was no coverage. The court went on to state that the question was not one of coverage but whether or not St. Paul is now estopped from asserting that there is no coverage under its policy because it undertook the defense of Peppers. The court found that there was no coverage under the policy. However, it also found that St. Paul is obligated to defend Peppers. The appellate court affirmed the holding as to Maryland but modified the judgment as to St. Paul, holding that in addition to defending Peppers in the personal injury action St. Paul must also provide policy coverage for the occurrence. It was the opinion of the appellate court that because St. Paul had engaged attorneys to defend Peppers it was estopped from denying coverage under its policy. 29 Ill.App.3d 26, 329 N.E.2d 788.

Robert and Tincy Peppers owned a tract of land facing Collinsville Road in East St. Louis. On January 18, 1971, three buildings, all owned by Peppers, were located on this land. A Pizza Hut was located at 8408 1/2 Collinsville Road. There was no policy of insurance on this property covering liability for personal injuries. Next to the Pizza Hut at 8412 was a building which was insured by Maryland under a general liability policy. Adjacent to that building was Peppers' home at 8414, which was insured by St. Paul under a homeowner's policy of insurance. This policy also provided liability coverage in certain situations for personal injuries incurred off the property insured. Because the Pizza Hut had been burglarized on numerous occasions Peppers had been staying in that building at night. On January 18, 1971, Peppers was awakened by a noise at the door which he determined was caused by someone trying [64 Ill.2d 192] to break in. When he went to the door he saw a person fleeing. He shouted for him to stop and then fired his shotgun, wounding the fleeing person, James Mims.

Peppers reported the incident to his insurance agent, who in turn reported it to Maryland. This company made an investigation, and on March 26, 1971, wrote to Peppers that the policy did not cover the premises at 8408 1/2 and that the incident did not constitute an occurrence as defined in the policy. Thereafter on April 14, 1971, Mims filed his personal injury action against Robert Peppers. Peppers' personal attorney, James Massa, on May 13, 1971, filed a motion to dismiss the complaint. Although the record is somewhat sketchy it appears that on July 21, 1971, Peppers' attorney, Massa, sent a copy of the Mims' complaint against Peppers to the insurance agent and requested him to forward it to St. Paul for a defense of the suit under the homeowner's policy. On August 26, 1971, Maryland filed a suit for declaratory judgment against Peppers and Mims for a declaration of its rights and obligations under its general policy of liability insurance on the premises located at 8412 Collinsville Road. On February 11, 1972, attorneys who were hired by St. Paul wrote Peppers that they had been employed by St. Paul to represent him in the Mims case. On the same day these attorneys filed an answer to the Mims' complaint. On March 6, 1972, the court allowed these attorneys to withdraw the answer and to withdraw as counsel for Peppers, and it reinstated the motion to dismiss that had previously been filed by Peppers' personal attorney, Massa. On May 15, 1972, Peppers filed a counterclaim against St. Paul in the declaratory judgment action seeking a declaration of rights and liabilities under the homeowner's policy which had been issued to him by St. Paul.

The controlling question as to Maryland's coverage and duty to defend involves the location of the occurrence. The policy that company issued to Peppers and his wife was an 'Owner's, Landlord's and Tenant's Liability [64 Ill.2d 193] Policy' and was limited by its terms to pay on behalf of the insured all sums which the insured shall become legally obligated to pay for bodily injury or property damage caused by an occurrence and arising out of the ownership,

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maintenance, or use of the Insured premises. The insured premises is described in the policy as 8412 Collinsville Road, East St. Louis, Illinois. The trial court found that this policy did not cover the occurrence in question, which arose out of the ownership, maintenance and use of the Pizza Hut located at 8408 1/2 Collinsville Road. This finding is fully supported by the evidence. Also there is no evidence which in any way establishes that Maryland is estopped from denying coverage for this occurrence. There are also no allegations in Mims' complaint which, under the principles discussed later, would impose an obligation on Maryland to assume the defense of Peppers.

As to St. Paul, the trial court properly held that this company was obligated under its policy to defend Peppers in the Mims case. The complaint was in three counts. Count I alleged that Peppers had assulted Mims with his...