Thornton v. Illinois Founders Ins. Co.
| Decision Date | 18 March 1981 |
| Docket Number | No. 53730,53730 |
| Citation | 84 Ill.2d 365,418 N.E.2d 744,49 Ill.Dec. 724 |
| Parties | , 49 Ill.Dec. 724 Wayne Lee THORNTON, Appellee, v. ILLINOIS FOUNDERS INSURANCE COMPANY, Appellant. |
| Court | Illinois Supreme Court |
Howard W. Small, of Thomas, Mamer, Haughey & Miller, Champaign, for appellant.
James Walker, Ltd., Bloomington (John R. Bailen, Bloomington, of counsel), for appellee.
Wayne Lee Thornton (plaintiff) filed a garnishment action in the circuit court of McLean County against Illinois Founders Insurance Company (Illinois Founders), the insurer for Ben Paul and Ben's Den, Inc. (defendants), against whom plaintiff had been awarded a $30,000 default judgment for personal injuries. The trial court held that the exclusion clause in the policy of insurance relating to incidents arising out of assault and battery applied, thereby relieving Illinois Founders of liability. A majority of the appellate court reversed and remanded, finding that the trial court erred in striking certain evidence and in allowing costs incurred on appeal. (85 Ill.App.3d 121, 40 Ill.Dec. 249, 405 N.E.2d 1341.) This court allowed Illinois Founders' petition for leave to appeal.
This case has previously been before this court; therefore, we will only review the facts necessary for an understanding of the issues. (For a full recital of the facts, see Thornton v. Paul (1978), 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335.) In the early morning hours of January 1, 1973, Ben Paul, the proprietor of a tavern (Ben's Den, Inc.), struck plaintiff on the head with a wooden club after plaintiff and his friends, who were drinking in the tavern and were allegedly rowdy and loud, refused to leave the premises at Paul's insistence. Paul was charged with the offense of aggravated battery. After a bench trial on stipulated facts, he was convicted of the lesser offense of battery. Plaintiff then filed a complaint against defendants, alleging wilful and wanton conduct, for personal injuries incurred in the January 1 incident.
Defendants notified their insurer, Illinois Founders, of the pending action and requested that it defend as provided in its policy of insurance. Illinois Founders refused, claiming the policy excluded incidents arising out of assault and battery. Although plaintiff later amended his complaint to add an allegation of negligence, Illinois Founders still refused to defend. Before the default judgment was entered, the parties entered into an agreement whereby plaintiff, in consideration of $100, agreed not to execute upon any judgment it might obtain against defendants and would seek satisfaction only from Illinois Founders. Subsequent to the default, plaintiff brought the instant garnishment proceeding. At the conclusion of the garnishment hearing, Illinois Founders was ordered to pay the $30,000 judgment. Thereafter, Illinois Founders filed a petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 72) to vacate the default judgment. The petition was denied. Illinois Founders appealed from both orders, and the appellate court affirmed. (51 Ill.App.3d 337, 9 Ill.Dec. 537, 366 N.E.2d 1048.) On appeal, this court affirmed the appellate court as to the denial of the section 72 petition but reversed and remanded as to the garnishment proceeding. The court found that Illinois Founders' refusal to defend did not prevent its assertion of the defense of noncoverage. This finding was based upon the conflict of interests that would have arisen if Illinois Founders had undertaken the defense of defendants. This court further ruled that Paul's criminal conviction was admissible as prima facie evidence that a battery was committed, thereby preserving the "opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding." 74 Ill.2d 132, 151, 23 Ill.Dec. 541, 384 N.E.2d 335.
Upon retrial the only evidence introduced by plaintiff in his case in chief was the policy of insurance entered into by defendants and Illinois Founders. Under the policy "occurrence" was defined as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." In addition, the following exclusion was appended to the policy:
Ben Paul was called as a witness by Illinois Founders. He testified to the following version of the occurrence. The plaintiff and four other men entered Ben's Den and began drinking. When they became rowdy, Paul repeatedly asked them to quiet down. He finally asked them to leave, but they refused. Plaintiff stated that he was going to "whip" Paul. Paul came around the bar with a stick, initially hoping to convince plaintiff to leave. When plaintiff refused, Paul struck him with the stick. Paul stated that he intended to strike plaintiff when the blow was struck. On cross-examination Paul stated that plaintiff and his friends were scuffling and throwing beer bottles and glasses.
Plaintiff was called as an adverse witness by Illinois Founders. He stated that, when he refused to leave the tavern at Paul's request, Paul came from behind the bar and struck him in the head with a pool cue. Patrick Dawson, one of plaintiff's companions on the night in question, was called as a witness by plaintiff on rebuttal. He testified to substantially the same version of the incident.
The trial court made the following ruling:
"that the proceedings which resulted in Ben Paul's conviction of battery were essentially equivalent to a judgment of conviction upon a negotiated plea of guilty to a lesser included offense.
The mandate of the Illinois Supreme Court directs this court to consider only whether the defense of non-coverage that the defendant Paul's conduct constituted a battery, could be established. The cases seem to limit explanations concerning criminal convictions to the reasons why the defendant decided to plead guilty (or in this case, to stipulate to facts establishing guilt). The cases appear not to permit the defendant to offer an explanation in the nature of justification, self-defense or excuse. Since such explanations are impermissible, and the other defense of non-coverage that the Defendant Paul was engaged in acts 'in connection with the prevention or suppression of such assault and battery' is beyond the express terms of the mandate, the testimony of the plaintiff, the plaintiff's friends and the Defendant Paul relative to the plaintiff and his friends fighting and damaging property in Ben's Den and the defendant's attempt to abate such activities is inadmissible and ordered stricken.
The record in this garnishment hearing, purged of inadmissible testimony relative to justification and the activities of the defendant to suppress assault and battery, does establish an intentional striking of the plaintiff by the Defendant Paul and the injury of the plaintiff. Thus, even though the Defendant Paul's conduct constituted negligence, there is also sufficient evidence that it constituted the intentional tort of battery which is excluded from coverage under the policy."
At the conclusion of the garnishment proceeding, the trial court conducted a hearing on costs. The trial court awarded Illinois Founders $3,169.53 as costs incurred in this court. Included were attorney fees and the appeal-bond premium. Plaintiff appealed both orders.
The appellate court held (1) that the provisions of the insurance policy were ambiguous; (2) that Illinois Founders was not precluded from raising noncoverage defenses in addition to the...
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