dissenting:
I respectfully dissent.
Where there is no policy to enforce, there is no duty to defend. The allegations of Chandlers’ complaint carefully avoid describing in detail the nature of the vehicles involved in the collision, whether by make, model, description, or serial number. There is nothing in the complaint from which coverage of the Doherty vehicle involved in the collision by American Fire & Casualty Company can be inferred.
Doherty had one vehicle insured by American Fire & Casualty, but the vehicle that was involved in the collision was not on the policy. A partial summary of Doherty’s testimony is helpful. He purchased a new Chevrolet Celebrity in 1984 and obtained insurance on the Celebrity from Facer. The 1962 Volkswagen was given to him about a year before the accident. He was also given the Bugatti body. He worked on the car for about a year, finishing it in about December 1986. In response to whether he went to Facer or any other agency to get insurance, he answered, “I asked them about it one time.” Doherty does not remember when he talked to Facer. As to his reason for going to Facer, he had the other car insured at Facer and “I might as well keep both insurance policies with the same company.” As to what happened:
“A. They didn’t want to insure it. She said it was a modified car and they didn’t have something — I don’t remember. It was some kind of excuse.
Q. In other words, they didn’t have to write off to somebody and get back to you and say they wouldn’t cover it?
A. No.
Q. They told you that that day?
A. Yes.”
As to the vehicle involved in the accident, Doherty testified he
“got nine hundred and some dollars worth of damages *** [and] I got an estimate of repairs and I sent the estimate to the insurance company, her insurance company, and they gave me a check for the amount, after investigation.
Q. You didn’t make any claim for reimbursement from your own insurance company?
A. No.”
The majority states the analysis should not go beyond the complaint. The cases cited by the majority do not support that conclusion.
“It is now well-established law that, in determining whether an insurer has a duty to defend its insured, the court must look to the allegations in the underlying complaint and compare these allegations to the relevant coverage provisions of the insurance policy.” Crum & Forster Managers Corp., 156 Ill. 2d at 393, 620 N.E.2d at 1079.
If the subject policy is compared to the complaint in the underlying suit, there is clearly no duty to defend. The complaint merely alleges that Doherty was operating “his motor vehicle.” A person may own several motor vehicles, all insured by different companies. Doherty also made reference to another vehicle he owns, apparently received from his parents. Query, if insurance was had on this vehicle with a different company, would that company also have a duty to defend? The fact that Doherty was operating one of his vehicles does not give rise to a duty to defend by American Fire & Casualty. The failure in the complaint, not specifically identifying the motor vehicle operated by Doherty at the time of the collision, gives rise to the application of the exception to the general rule, as announced in Thornton, 74 Ill. 2d at 151, 384 N.E.2d at 342. In Thornton, the supreme court discussed the brevity of the allegations of the complaint and the difficulty in determining the rights of the insured and the insurer from such allegations (Thornton, 74 Ill. 2d at 160-62, 384 N.E.2d at 347-48) and concluded, “if the general rule is to be applied, there should be sufficient factual allegations in the complaint to make the determination alluded to in Maryland Casualty Co. v. Peppers” (Thornton, 74 Ill. 2d at 162, 384 N.E.2d at 348). Maryland Casualty Co. dealt with the conflict of interest that may arise when an insurer undertakes to defend an action in which one cause of action or theory of recovery may raise an inference of coverage, but others may not. Maryland Casualty, 64 Ill. 2d at 193-94, 355 N.E.2d at 28.
This case provides a fact situation very similar to the fact situation presented in Maryland Casualty, except that the vague allegations of Chandlers’ complaint against Doherty prevent the type of analysis that could resolve the coverage issue. As a result, American Fire & Casualty should have been allowed to present, and the trial court should have considered, evidence that the subject policy did not afford coverage in this case.
I agree with the statement in Tapp wherein this court stated:
“Although case law does state that the lack of coverage must be absolutely clear when comparing the complaint with the policy for an insurer to refuse to defend with impunity, we believe this broad statement of law presumes that the complaint gives some indication there is a reason to believe the insurance policy is relevant to the alleged facts.” Tapp, 109 Ill. App. 3d at 933, 441 N.E.2d at 149.
Similar to Tapp, the allegations in the instant complaint give no indication what car owned by Doherty was involved in the accident, thereby alerting American Fire that there was potential coverage. That Doherty “was operating his motor vehicle” is inadequate.
In Rowell, 434 F.2d 926, a similar factual situation, the insured owned a 1958 Cadillac insured with Northwestern Mutual Insurance Company. The insured also owned a 1955 Cadillac that was not insured by Northwestern. The complaint alleged the owner was operating “an automobile.” In a subsequent garnishment action, the circuit court of appeals, while recognizing the general rule requiring the insurance company to defend, stated:
“[T]he general rule does not take into account the possibility that a divergence may exist between the facts as alleged in the Petition and the actual facts as they are known to the insurer, and that the general rule does not apply where, as here, the uncontrovertible and indisputable facts, ascertained by the insurance company long before the action is commenced and confirmed by its own insured, demonstrate that there never was any insurance coverage for the casualty alleged in the first place, and that, therefore, the refusal to defend does not constitute a breach of contract but, on the contrary, is a justified refusal.
In a sense, to say here that the Garnishee must gauge its obligation strictly by the pleading called a Complaint, and put blinders on, so to speak, to what it actually knows and has definitely ascertained, is somewhat archaic, considering the nature of our present system of notice pleading.” Rowell, 434 F.2d at 929-30.
The reasoning in Rowell is sound. The plaintiffs were not entitled to summary judgment.