dissenting:
I respectfully dissent. I disagree that defendant State Farm owed no duty of indemnification to plaintiff. The majority simply concludes that the word “accident” does not encompass the event alleged in plaintiffs complaint but provides no reasoning to support that conclusion. Plaintiff Johnson has alleged in his complaint an “accident” that falls within the relevant coverage provisions of the insurance policy in question and triggers defendant’s duty to indemnify.
As the majority observed, the insurance contract itself does not define the term “accident” and to determine whether the event alleged by defendant is an “accident,” we need to give the term “accident” its plain, ordinary, and popular meaning. Outboard Marine Corp., 154 Ill. 2d at 108, 607 N.E.2d at 1212. According to its dictionary definition, “accident” means “an unforseen and unplanned event or circumstance” or “an unfortunate event resulting esp. from carelessness or ignorance.” Merriam-Webster’s Collegiate Dictionary 7 (10th ed. 2000). Such a definition is consistent with the policy’s exclusionary provision, which states: “we will not provide insurance for personal injury or property damage which is either expected or intended by you.” The parties have agreed in their briefs that an “accident” occurs when something “unexpected, unintended, and unusual happens.”
Plaintiff clearly alleged an event that was both unexpected and unintended. Such an event qualifies as an “accident.” As plaintiff alleged in his complaint, his coexecutor, White, caused property damage to the estate; the estate’s successor administrator, Alton Bank, settled and assigned its claim for the damages to Safeco; and plaintiff is required to indemnify Safeco for these losses. Defendant State Farm admitted that it did not investigate the loss, and it did not allege in its motion for summary judgment that plaintiff expected, planned, or intended for his coexecutor to cause such a loss. Therefore, the trial court correctly concluded that, based on the above allegation, plaintiff only became liable under a theory of vicarious liability and his action was “clearly not intended or willful.” Accordingly, plaintiffs complaint alleged facts that constitute an “accident,” and these facts fall within the coverage of the policy and trigger defendant’s duty to indemnify.
Moreover, as the Supreme Court of Illinois pointed out, in construing an insurance policy, any ambiguity should be resolved against the insurer. Outboard Marine Corp., 154 Ill. 2d at 108-09, 607 N.E.2d at 1212. Therefore, even if we find that the term “accident” in the umbrella policy is susceptible to more than one reasonable interpretation and one such interpretation would exclude the facts alleged by plaintiff from coverage under the policy in question, we are still required to construe the term “accident” in plaintiffs favor and consider only the interpretations providing coverage. Accordingly, I would find that plaintiff alleged facts that fall within the coverage of the umbrella policy and affirm summary judgment in plaintiffs favor.
Defendant State Farm argues that it had no duty to indemnify plaintiff for the judgment in Safeco’s favor because that judgment arose out of plaintiffs breach of a contractual indemnity agreement. I disagree. First I note that, even though defendant based its argument on the contractual indemnification theory, it did not supply this court with the indemnification agreement in question, nor did defendant provide a copy of the surety bond.
I farther note that, contrary to defendant State Farm’s assertion in its brief, Madison County circuit court, the trial court in the underlying lawsuit, did not specifically find plaintiffs liability to Safeco based solely on the contractual indemnity agreement, but the court also found liability on an implied indemnity theory. In other words, plaintiff was hable whether the indemnity agreement existed or not.
Plaintiff sufficiently so alleged in his complaint. As plaintiff alleged, he was appointed the coexecutor of the estate and was required by law to file a surety bond (755 ILCS 5/12 — 2 (West 2000)). Plaintiff signed the indemnity agreement with Safeco so that Safeco would become the corporate surety on the bond (755 ILCS 5/12 — 3 (West 2000)). Regardless of the indemnity agreement, plaintiff was responsible for any damage that his coexecutor, White, caused to the estate because of joint and several liability. Plaintiffs responsibility to the estate led to his alleged breach of the indemnification agreement, and his liability to Safeco arose out of his liability to the estate. In other words, absent a contractual relationship between plaintiff and Safeco, plaintiff would still be liable to the estate and plaintiff would still be seeking indemnification from defendant under the umbrella policy. Therefore, the existence of the indemnificátion agreement does not impact defendant’s duty to plaintiff as the insurer. Accordingly, as the trial court concluded, the basis of plaintiff’s liability is not his contractual obligation to Safeco but his vicarious liability as a coexecutor. This is also why Alton Bank, the successor administrator, not only sued Safeco but also both plaintiff and White in its initial action. The fact that Safeco settled with Alton Bank and claimed damages against plaintiff under the indemnity agreement does not change the nature and cause of the damage. Therefore, I disagree with defendant State Farm’s contention that plaintiffs liability was based on plaintiffs breach of contract with Safeco.
Defendant State Farm also asserts that plaintiff intentionally breached a contractual indemnity clause and a finding in plaintiffs favor would “transform the insurance policy into a bond that guarantees the performance of fiduciary duties and contractual obligations.” This is also not accurate. As alleged in his complaint, plaintiff did not intentionally or willfully breach the indemnity agreement. Plaintiff is liable to Safeco solely because of White’s action, which was neither “intended” nor “expected” by plaintiff. Further, the insurance policy in question had many exclusions, and, as listed above, two of the provisions specifically exclude any expected losses and any losses caused by the insured’s intentional or willful acts. These and any other exclusion provisions operate to ensure that the policy does not become a performance-guarantee bond.
Therefore, I conclude plaintiff Johnson had sufficiently alleged an “accident” that triggers defendant State Farm’s duty to defend and to indemnify. Accordingly, I would affirm the trial court.