dissenting:
I agree with the majority’s conclusion that the insurer’s interests conflicted with that of Clancey, initially preventing the insurer from defending Clancey in the personal injury action. I believe, however, that the insurer should have sought a declaratory judgment to resolve the conflict and to determine its obligations under the policy.
In Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, this court examined the propriety of seeking a declaratory judgment to determine coverage and, consequently, the duty to defend under two policies of insurance. The policies specifically excluded coverage for injuries intentionally inflicted. The underlying personal injury action brought by the plaintiff Mims against the defendant Peppers resulted from a shooting which took place when Mims apparently attempted to break into a Pizza Hut restaurant owned by Peppers. The trial court, in the declaratory judgment action, found that Peppers had intentionally caused injury to Mims and that, therefore, no coverage was available under the insurance policies. This court reversed the trial court’s finding of intentional injury in the declaratory judgment action, holding that it was an abuse of discretion and that such action was “premature.” This court also found that the declaratory judgment action was improper because “[t]his issue was one of the ultimate facts upon which recovery is predicated in the Mims personal injury action against Peppers.” Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 197.
Similarly in Thornton v. Paul (1978), 74 Ill. 2d 132, the question of the insurer’s obligation to defend the insured, as well as coverage under the policy of insurance, turned upon the classification of the insured’s action as a “battery” or as an intentional act. (See Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365.) The policy covered only acts unintended by the insured and specifically excluded coverage for personal injury “arising out of assualt or battery,” In determining whether the insurer must seek a declaratory judgment as to its obligations, this court followed Peppers and found that such an action would be premature.
“[I]f a court were to determine in a declaratory judgment action that the insured’s conduct did not come within the coverage of the policy because it constituted a battery, this declaration would be binding on the insured in the personal injury action between the injured party and the insured, and would in all probability be determinative of the issue of liability in that suit.” Thornton v. Paul (1978), 74 Ill. 2d 132, 157.
Consequently, the court held that the insurer was not obligated to seek a declaratory judgment as to its obligations under the policy and, further, that the insurer’s refusal to defend the insured in the personal injury action did not estop it from asserting defenses of noncoverage in the garnishment proceedings.
The majority erroneously applies the above reasoning as to the appropriateness of a declaratory judgment action to the present circumstances. Unlike Peppers and Thornton, the question determinative of coverage under the policies here is not the ultimate issue of fact in the underlying personal injury suit brought by Murphy. The majority correctly sets out the general rule: “Where the issues in an underlying suit and a declaratory judgment action are separable, deciding the question of coverage in a collateral proceeding prejudices no party.” (88 Ill. 2d at 455.) In the present case, a declaratory judgment action to determine coverage under the policies of insurance would have focused solely on the issue of agency — that is, whether Clancey drove the van with the permission of the owners. This issue is separable from the ultimate issue of the underlying personal injury suit, the negligence of Clancey. The resolution of the agency issue would not in any way prejudice Clancey or Murphy in regard to the issue of Clancey’s negligence in driving the van. Moreover, once the agency issue is determined, the insurer’s previous alleged conflict of interest with Clancey no longer exists. If coverage under the policy is found to exist, the insurer may then defend Clancey on the issue of his negligence. The interest of both the insurer and Clancey would be the same — to find Clancey not guilty of negligence so as to avoid all liability.
I believe that the insurer’s failure in the present case to seek a determination of its obligations under its policy in a declaratory judgment action should estop it from denying that Clancey was covered by the policy in the garnishment proceeding. This court’s expansion of the Thornton rule allowing an insurer to escape its obligations to defend under a policy of insurance creates a dangerous precedent seriously diluting the contractual obligation of an insurer to defend an insured under an express promise to do so.
CHIEF JUSTICE GOLDENHERSH joins in this dissent.