American Family Mutual Insurance Co. v. Chiczewski

No. 2--97--1228
___________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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AMERICAN FAMILY MUTUAL ) Appeal from the Circuit Court
INSURANCE COMPANY, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--MR--0122
)
LINDA CHICZEWSKI, Next Friend )
of K.C., a Minor, LINDA )
CHICZEWSKI, and JOSEPH )
CHICZEWSKI, )
)
Defendants-Appellants ) Honorable
) Robert E. Byrne,
(Richard Eitel, Jr., Defendant).) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Defendants, Linda Chiczewski, individually, and as next friend
of K.C., a minor, and Joseph Chiczewski, appeal the order of the
circuit court of Du Page County granting summary judgment for
plaintiff, American Family Mutual Insurance Company (American
Family). We affirm.
American Family brought a declaratory judgment action seeking
a judicial determination that it was not obligated to defend or
indemnify its insured, Richard Eitel, Jr., in a civil suit filed by
defendants against Eitel (No. 94--L--1034). The underlying suit
arose from allegations that Eitel entered defendants' home at
approximately 4 a.m. on July 13, 1992, and physically injured
defendants' five-year-old daughter, K.C. (Eitel was criminally
convicted for this incident (No. 92--CF--1554).) Defendants
alleged that, after consuming alcohol or ingesting illegal drugs,
Eitel entered defendants' residence, proceeded to K.C.'s bedroom,
and "carelessly and negligently flailed his arms, legs and other
object [sic]," causing K.C. to suffer great bodily harm (count I).
Defendants further alleged willful and wanton misconduct (count
II); intentional battery (count III); the Family Expense Act (count
IV); negligent infliction of emotional distress (counts V and VI);
intentional infliction of emotional distress (counts VII and VIII);
and loss of consortium (counts IX, X, and XI).
On November 6, 1997, the trial court granted summary judgment
in favor of American Family finding that American Family owed no
coverage to Eitel under his father's homeowner's policy because
defendants' allegations fell within the policy's "physical abuse to
a minor exclusion." Defendants timely appeal and request that we
enter summary judgment in their favor.
We begin our analysis by addressing the issue of whether the
trial court properly granted summary judgment. Since the parties
filed cross-motions for summary judgment, only a question of law is
involved, and the reviewing court decides the issues based on the
record. Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App.
3d 1049, 1051 (1996). On appeal from the entry of summary
judgment, the standard of review is de novo. Aryainejad, 278 Ill.
App. 3d at 1051.
Defendants contend that the trial court erred in determining
that the insurance policy issued by American Family did not provide
coverage with respect to the underlying action. Defendants argue
that the "physical abuse of a minor" exclusion does not apply. The
"physical abuse of a minor" exclusion in the policy excludes
coverage for bodily injury arising from "claims or suits seeking
damages, including defense of same, to any person who actively
participates in any act of sexual molestation or physical or mental
abuse of a minor."
Whether an insurer has a duty to defend its insured depends on
whether the underlying complaint alleges facts within or
potentially within coverage of the insurance policy. State Farm
Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993).
Where the underlying complaint alleges facts which if true would
exempt the insured from coverage under the policy, the insurer has
no duty to defend. State Farm Fire & Casualty Co., 250 Ill. App.
3d at 336. Where the language of an insurance policy is clear and
unambiguous, it must be given its plain and ordinary meaning.
State Farm Fire & Casualty Co., 250 Ill. App. 3d at 337.
In their complaint against Eitel, defendants alleged that
Eitel caused their daughter "great bodily harm, multiple fractures,
traumatic brain injury, an active blood clot requiring surgery and
drug induced coma, all of which has resulted and will in the future
result in *** pain, suffering and disability and disfigurement, of
a permanent nature." Abuse is defined as "physically harmful
treatment." Webster's Third New International Dictionary 8 (1993).
These allegations clearly and unambiguously establish that Eitel
actively participated in the physical abuse of a minor.
Defendants argue that the term "abuse" is inherently ambiguous
because it naturally carries with it an element of intent. We fail
to see the relevance of this argument. The term "abuse" is not
accidental or negligent. By arguing that the term is intentional,
defendants defeat their argument that Eitel's actions were
negligent. Moreover, we note that the exclusion does not require
an element of intent or expectation. Because there is no intent
requirement, the allegations that Eitel ingested alcohol or drugs
so that he was unable to control his actions and thus lacks the
specific intent have no bearing on the applicability of the
exclusion.
Defendants further argue that, regardless whether the term
"abuse" is considered ambiguous, American Family must present
evidence of abuse and failed to do so, and thus the trial court
erred in granting summary judgment. This argument is also
unreasonable given the allegations raised by defendants.
Because the underlying complaint seeks recovery from Eitel for
his active participation in an act of physical abuse of a minor, we
find that the trial court properly held that American Family had no
duty to defend or indemnify Eitel in the underlying suit. We have
reviewed defendants' remaining contentions and find them to be
without merit. Accordingly, we affirm the grant of summary
judgment for American Family.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
THOMAS and RATHJE, JJ., concur.