State Farm Fire & Cas. Co. v. National Union Fire Ins. Co.

• Decision Date: 04 October 1967
• Docket Number: Gen. No. 67--16
• Citation: 230 N.E.2d 513,87 Ill.App.2d 15
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY, Bruce P. MacDonald, John H. McNaughtonand William Lamps d/b/a Lamps Elevator Sales and Service, Appellee. *
• Court: United States Appellate Court of Illinois

Page 513

230 N.E.2d 513

87 Ill.App.2d 15

STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY, Bruce P. MacDonald John H. McNaughtonand William Lamps d/b/a Lamps Elevator Sales and Service, Appellee.^* Gen. No. 67--16.

Appellate Court of Illinois, Second District.

Oct. 4, 1967.

Haye & Keegan, Rockford, for appellant.

Roszkowski & Paddock, Rockford, for appellee.

DAVIS, Presiding Justice.

State Farm Fire & Casualty Company brought suit for declaratory judgment against Bruce P. MacDonald for the construction of a certain clause in a 'Homeowner's Policy' issued by it to the defendant. The suit was brought to determine whether the plaintiff was obligated to defend MacDonald in another action then pending in the Circuit Court of Winnebago County, arising out of the accidental injury in question, and whether it was obligated to pay any judgment which might be entered against him in that litigation.

MacDonald was employed as a repair man by William Lamps, doing business as Lamps Elevator Sales & Service. On Saturday, September 5, 1964, which was not a regular work day for the defendant, his employer called and asked him to repair a freight elevator at Davis Furniture Company Warehouse in Rockford. On this occasion the defendant saw and spoke to John McNaughton, whom he had seen before at the warehouse and knew as 'John.' In the course of making the repairs, the defendant went to look for a piece of wood to use as a prop for the elevator door. He found a rubber mallet on a work bench on the premises, which would serve such purpose. In walking back to the elevator with the mallet in his hand, the defendant passed in front of McNaughton, who was standing with his back against a fire door. While so doing and in an impulsive gesture, MacDonald suddenly raised the mallet and struck it against the fire door behind McNaughton's head. Apparently, this was done as horseplay and with no intention of touching McNaughton. Unfortunately, the hammer rebounded and struck McNaughton on the head, injuring him.

McNaughton brought suit against William Lamps for damages suffered as the result of this injury. Prior to the trial, Lamps filed a third party complaint against MacDonald for indemnification for all losses which he might incur in connection with the lawsuit initiated by McNaughton. MacDonald then gave notice to the plaintiff in this cause, State Farm Fire & Casualty Company, and demanded that the plaintiff defend him by virtue of the provisions of the 'Homeowner's Policy' issued to him by plaintiff on December 13, 1963.

In the original lawsuit, the jury returned a verdict for McNaughton and against William Lamps in the sum of $50,000 and costs of suit. The plaintiff then brought this declaratory judgment action to determine its obligations of MacDonald in connection with Lamps' third party action against him.

Under Section II of the policy the plaintiff undertook to provide 'Comprehensive Personal Liability (Bodily Injury and Property Damage)' coverage for the defendant and thereby agree:

'* * * To pay all sums which the Insured shall become legally obligated to pay as damages because of bodily injury sustained by other persons and property damage, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, * * *.'

The policy also provided that:

'Section II of this Policy Does Not Apply: (a)(1) to any business pursuits of an Insured, other than activities therein which are ordinarily incident to non-business pursuits, * * *.'

The plaintiff contends that the act of MacDonald in accidentally striking McNaughton with the mallet was within the exception to the exclusionary language of the policy.

At the time of the accident, MacDonald was engaged in his usual occupation--that of repairing an elevator. It must be conceded that he was generally engaged in a 'business pursuit.' The question which must be resolved is whether the defendant's impulsive act of striking the hammer against the fire door was an activity 'ordinarily incident to non-business pursuits.'

Only two cases have been brought to our attention concerning the meaning of the identical insurance clause in question. In Security National Insurance Co. v. Sequoyah Marina, Inc., 246 F.2d 830 (C.A.10 1957), the insured, Freeman, owned a boat which he used strictly for pleasure and which was kept at a dock rented from Sequoyah Marina, Inc. He hired a repair man named Lowrance to do some work on the boat. In the course of making the repairs, Lowrance started the boat's engine, which resulted in an explosion and damage to the property of Sequoyah Marina and others. Freeman's insurer argued that since Lowrance was engaged in his usual occupation at the time of the explosion, the exclusionary language of the policy applied. The court pointed out, quite logically, that it was Freeman's use of the boat, not Lowrance's occupation, which was significant, and at page 833 held that the 'activities of Lowrance in repairing the boat were ordinarily incident to the non-business use of the boat by Freeman, the owner, and were not within the exclusion.'

In Edwards v. Trahan, 168 So.2d 365 (Ct.App.La., 1964), the insured was in...