concurring in part and dissenting in part:
I agree with the majority’s well-reasoned conclusions that (1) the trial court should not have stricken evidence rebutting Illinois Founders’ prima facie battery defense, and (2) the question of whether the event in question constituted an “occurrence” within the meaning of the policy was also before the trial court on remand. I conclude, however, that the evidence, including that which was improperly stricken after the conclusion of the hearing, showed, as a matter of law, that the liability insurance policy did not cover the event. For this reason, I would affirm the order finding Illinois Founders not liable in garnishment.
The evidence showed conclusively that Ben Paul intentionally hit plaintiff with the hard wooden part of an object that appeared to be a cue stick. The majority does not dispute that this act would have constituted a battery unless justified. The situations which would have justified the conduct are set forth in article 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 7 — 1 to 7 — 14). If Paul committed a battery, the supreme court’s decision in this case would have required the trial court to find the exclusionary clause of the policy to prevail. If, on the other hand, Paul’s conduct was justified, he did not commit a tort. He could not have been held to be merely negligent in his appraisal of the situation prior to his striking plaintiff, for the reasonableness of that appraisal determines whether this conduct was justified under article 7. Thus, in determining whether the policy would cover the situation if Paul struck plaintiff without committing a battery, we are required to determine whether the policy covered an event in which no tort was committed by the insureds.
The policy purported to give coverage for liability arising from an “occurrence” which 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 ° (Emphasis added.) The plain meaning of the definition would seem to be such that an intentional striking of another by an insured or his servant would not be covered. However, a number of cases have held that an assault, in the broad sense of assault and battery being one, is an “accident” within the meaning of liability policies. In such cases, the question of whether the event is to be viewed from the standpoint of the insured or the victim is deemed to be crucial. (Annot., 72 A.L.R.3d 1090, 1100 (1976).) Here, if the event is viewed from the standpoint of the insured, Paul, as the policy directs, his conduct was intentional and not an “accident.”
The theory that the event may be examined from the standpoint of the injured party started in this State with the decision in E. J. Albrecht Co. v. Fidelity & Casualty Co. (1937), 289 Ill. App. 508, 7 N.E.2d 626. There, servants of the insured had intentionally and without sufficient provocation shot a third person. The liability insurance policy in issue covered accidents, and there was no exclusionary clause for battery. The court held that as the shooting was without provocation, it would be viewed from the standpoint of the injured party, and from his standpoint it was an accident. .The case was cited with approval in Hawthorne v. Frost (1952), 348 Ill. App. 279,108 N.E. 816, where an unprovoked attack by a cab driver against a passenger was deemed to be accidental, and in Scott v. Instant Parking, Inc. (1969), 105 Ill. App. 2d 133, 245 N.E.2d 124, where willful and wanton conduct of an elevator operator was held to be an accident invoking coverage.
The rationale of E. J. Albrecht Co., its progeny and authority from other jurisdictions, shows a policy of construing liability policies in such a way as to give protection to injured parties innocent of provocation. However, the supreme court has held that the battery exclusion is valid and excludes coverage if a battery was committed. If a battery was not committed, the justification for Paul’s acts must have arisen from provocation by plaintiff, the injured party. Thus, the rationale of F. J. Albrecht Co. would not be applicable, and the question of intent would be viewed from the standpoint of the insured even without the direction to do so in the policy’s definition of the word “accident.” Regardless of whether or not Paul committed a battery, I find no basis for coverage under the evidence here.
The theory that the question of intent be determined from the standpoint of an injured party innocent of provocation is likely the reason for the insurer placing a battery exclusionary clause in the policy in addition to defining the term “accident” in such a way that it did not include an event resulting from intentional conduct. Many batteries are unprovoked, and the insurer was likely concerned that they would be deemed accidents even under policies where, as here, the question of intent was directed to be determined from “the standpoint of the insured.”
As the question of whether the event was an “occurrence” constituting an “accident” was before the trial court on remand, the parties had an opportunity to present any admissible evidence on the question. Under the record here, I consider the interpretation of the policy to be a question of law as it was in Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921. Thus we are not required to remand the case to the trial court, although it did not pass on this issue. I would avoid further proceedings there by not doing so.
I agree that the order taxing the premium for Illinois Founders’ supersedeas bond as costs should be reversed.
Accordingly, I would affirm the order on the garnishment proceeding and reverse the order taxing costs, all without remandment.