dissenting:
Because the facts of this case show as a matter of law that Savickas expected bodily injury to occur, the trial court properly granted summary judgment in favor of American Family and against Savickas and the estate of Vinicky.
Savickas and several friends were drinking at the New Gold Coast Tavern. An argument ensued between Savickas and another member of the group. The bar owner, Robert Walensky, asked Savickas to leave and escorted him to the door. Savickas initially left, but came back and began to bang on the window of the tavern. Walensky then grabbed a baseball bat kept behind the bar and ran out the front door. He watched as Savickas walked away. The decedent, Thomas Vinicky, who occasionally cleaned and stocked the tavern for Walensky, got up from his barstool and said “I’m getting the hell out of here.” Vinicky was not part of Savickas’ group, nor did he attempt to assist Walensky in expelling Savickas from the bar. Only two people testified as to what happened next.
Walensky watched from the front door of the tavern and could see Savickas and Vinicky facing each other. Vinicky asked Savickas “What’s the matter? Why are you doing all this?” Savickas then pulled a gun from his pocket and shot Vinicky in his chest as he was stepping backward.
Savickas testified that, after banging on the window a second time, he was walking away when he saw Vinicky. According to Savickas, Vinicky called him an obscenity, threatened him, and appeared to go for a gun. Savickas panicked, grabbed his gun, and shot Vinicky. The criminal trial transcript reflects the following:
“Q. Did [the gun] go off accidentally?
A. No, sir.
Q. You pulled the trigger, didn’t you?
A. Yes, sir.
Q. And put a bullet through his heart, didn’t it?
A. Yes, sir. ***
Q. You say you know the gun was loaded at the time, is that right?
A. Yes, sir.
Q. Did it work?
A. Yes, sir.
Q. When you pulled the trigger, after aiming the gun at Tom Vinicky, it went off, didn’t it?
A. Yes, sir.
* * *
Q. Why did you fire the weapon at Mr. Vinicky?
A. I was afraid he was going to kill me.
Q. At that time, what did you do?
A. I panicked. I reached inside, grabbed my gun and shot at him.
Q. You wanted to shoot him to prevent him from killing you, isn’t that right?
A. Sure.
Q. You were very afraid, so afraid you killed a man, is that correct?
A. I shot him in self-defense, yes.”
After the shooting, Savickas ran from the scene. Walensky and other people from the tavern immediately ran to Vinicky. No gun was found in the area or on Vinicky’s person. The jury found Savickas guilty of first degree murder. 720 ILCS 5/9—1(a)(1), (a)(2) (West 1996). Savickas’s conviction was affirmed on appeal. People v. Savickas, 230 Ill. App. 3d 322 (1992). Subsequently, the trial court denied Savickas’ postconviction petition, which was affirmed by this court. People v. Savickas, No. 1—94—2240 (1995) (unpublished order under Supreme Court Rule 23).
A wrongful death and survival action was filed on behalf of the estate of Vinicky naming Savickas as defendant. The amended wrongful death complaint contained four counts. Counts I and II, survival and wrongful death, alleged an intentional tort. Counts III and IV wrongful death and survival, alleged that Savickas “negligently shot” Vinicky and “negligently assessed a need for self-defense.” American Family elected to defend the action under a reservation of rights and then filed the instant complaint for declaratory judgment praying for a declaration that it owes no duty to defend or indemnify Savickas in the underlying tort action. The policy at issue contains the following exclusion:
“Coverage D — Personal Liability and Coverage E — Medical Expense do not apply to bodily injury or property damage:
a. which is expected or intended by any insured[.]”
In finding in favor of American Family, the trial judge carefully noted the difference between what Savickas may have intended as compared to what he may have expected. She specifically stated that she could not decide the question of intent because that would impact the underlying tort action because it is a crucial issue to that action. She noted, however, that what was expected would not be an issue in the underlying tort case. She then went on to conclude that whether Savickas was acting in self-defense or not, he had to expect that there was going to be bodily injury as a consequence of his aiming and firing a loaded gun at Vinicky. For the reasons that follow, I respectfully submit that the trial court was correct.
Initially, I respectfully find the law as recited by the majority to be somewhat confusing. I will therefore state what I believe the law to be and then apply the law to the facts of this case.
At the initial stage of the proceedings — where only the underlying complaint is on file — an insurer’s duty to defend is determined by the allegations of that underlying complaint. However, if an insurer opts to file a declaratory judgment action, it may properly challenge the existence of such duty and offer evidence to prove that the insured’s conduct fell within the limitations of a policy exclusion. Fidelity & Casualty Co. v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304 (1983). “To require the trial court to look solely to the complaint in the underlying action to determine coverage would make the declaratory proceeding little more than a useless exercise possessing no attendant benefit and would greatly diminish a declaratory action’s purpose of settling and fixing the rights of the parties.” Envirodyne Engineers, Inc., 122 Ill. App. 3d at 305; Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp., 166 Ill. App. 3d 550, 556 (1988). “Though the action is for declaratory judgment, a court need not wear blinders and be limited to the allegations of the complaint.” Travelers Insurance Cos. v. P.C. Quote, Inc., 211 Ill. App. 3d 719, 724 (1991).
The only time such evidence is not permitted is where it tends to determine an issue crucial to the determination of the underlying tort action. Envirodyne Engineers, Inc., 122 Ill. App. 3d at 304-05.
“Both Peppers and Thornton are instructive as to what matters cannot be determined in a declaratory judgment proceeding prior to the completion of the underlying action. Peppers states that an ultimate fact upon which recovery is predicated in the underlying case may not be addressed. The court’s language suggests that an ultimate fact is one which would estop the plaintiff in the underlying case from pursuing one of his theories of recovery. Thornton implies that an ultimate fact is one which ‘an issue crucial to the insured’s liability’ in the underlying case is determined. Apparently only then would the inequities surface in regard to alignment of the parties and the order and burden of proof, because those matters necessarily arise in any declaratory judgment proceeding brought before completion of the underlying lawsuit.” Envirodyne Engineers, Inc., 122 Ill. App. 3d at 307.
However, if a crucial issue is not determined, there is simply no reason why the parties seeking a declaration of rights should not have the prerogative to present evidence that is generally accorded to a party to a motion for summary judgment in a declaratory proceeding. Envirodyne Engineers, Inc., 122 Ill. App. 3d at 305. See also Murphy v. Urso, 88 Ill. 2d 444, 455 (1981); Fremont Compensation Insurance Co. v. Ace-Chicago Great Dane Corp., 304 Ill. App. 3d 734, 742-43 (1999); State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333, 336 (1993); Millers Mutual Insurance Ass’n v. Ainsworth Seed Co.; 194 Ill. App. 3d 888, 891 (1989); Charles H. Eichelkraut & Sons, Inc., 166 Ill. App. 3d at 556; Travelers Insurance Cos. v. Penda Corp., 974 F.2d 823, 828 (7th Cir. 1992).
In the instant case, the court found that Savickas “expected” bodily injury to occur. Unlike what Savickas “intended,” what he “expected” is neither an ultimate fact nor a crucial issue in the underlying tort action.
In Bay State Insurance Co. v. Wilson, 96 Ill. 2d 487 (1983), our supreme court found that the term “expected” was not included in the insurance policy to serve as synonymous surplusage to the term “intended” but that it served a separate purpose. Bay State Insurance Co., 96 Ill. 2d at 494. The court observed:
“The appellate court has previously interpreted exclusionary clauses identical to the one in the instant case. The terms ‘intended’ or ‘expected’ included in such clauses have not been treated as synonymous. Otherwise, no purpose would be served by including them within the clause. A greater degree of proof is required to establish intent than to establish expectation. [Citation.] Injuries which are of such a nature that they should have been reasonably anticipated by the insured are ‘expected’ injuries. [Citation.]” Bay State Insurance Co., 96 Ill. 2d at 494.
It is clear from the above that an insurer may challenge its duty to defend in an action by declaratory judgment. In doing so, it may look beyond the four corners of the complaint and submit extrinsic evidence to prove that the insured’s conduct fell within the policy exclusions. The only time such evidence may not be presented is where it bears upon an ultimate fact upon which recovery is predicated in the underlying case. Furthermore, our supreme court has concluded that when one aims and fires a loaded gun at another, self-defense notwithstanding, the shooter is consciously aware that injuries are likely to be caused by his conduct and, therefore, he reasonably anticipates or expects the resulting injuries. Bay State Insurance Co., 96 Ill. 2d at 487. As such, the only remaining issue in the instant case is whether what Savickas expected is an ultimate fact upon which recovery is predicated in the underlying action. Although neither the parties nor my research has revealed any authority on this issue, I submit that it is not.
Initially, I note that the estate of Vinicky does not address this issue in its opening brief. Only in his reply brief does Savickas address the.issue, stating:
. “Clearly then, when our trial court in the Declaratory Judgment action found ‘conclusive proof on the basis solely of extrinsic evidence that the injury was ‘expected,’ *** it resolved at a minimum the issue of proximate cause in the underlying tort suit, i.e., that Savickas ‘reasonably anticipated’ an injury would result from his alleged conduct.”
The majority opinion disposes of this issue by simply stating that the issue “may affect proof of whether Savickas proximately caused the death.” I respectfully submit that the contention is without merit.
To say that the estate of Vinicky’s underlying tort complaint is succinct is an understatement. The factual allegations of the intentional tort count state only that Vinicky was shot and killed by Savickas; the negligence count states that Savickas negligently shot Vinicky and negligently assessed a need for self-defense. With respect to the negligence counts, the facts only support one theory — a negligent assessment of the need for self-defense. Importantly, the complaint does not allege that the gun went off accidently or that Vinicky was accidently shot.
For a successful cause of action in negligence, the plaintiff must establish a causal connection between the defendant’s conduct and the injury. Although the Illinois Pattern Jury Instructions refer to the requisite causation as “proximate cause,” causation is actually comprised of two components. 1 M. Polelle & B. Ottley, Illinois Tort Law § 14.23, at 14—27 to 14—28 (2d ed. 1998) (hereinafter Illinois Tort Law); Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1995) (hereinafter IPI Civil 3d). First, the alleged tortious conduct must be the “cause in fact” of plaintiffs injury. Existence of cause in fact can be determined by asking whether defendant’s conduct was a material element and a substantial factor in causing the injury. Illinois Tort Law § 14.24, at 14—29.0. In the underlying tort case, it is without question that Savickas’ conduct of aiming and firing the gun directly at Vinicky was a material element and substantial factor in causing Savickas’ fatal injuries.
The second component is what the pattern jury instructions term as “proximate cause.” Also known as “legal cause,” this component is not really a question of causation because there is no question that defendant’s act or omission was the cause of the injury. Rather, it is a question of policy: “How far should the defendant’s legal responsibility be extended for conduct that has in fact caused harm?” Illinois Tort Law § 14.24, at 14—29.0. According to the pattern jury instructions, a defendant will be liable for the consequences of his conduct if the injury complained of was the “natural or probable” consequence of that conduct. IPI Civil 3d No. 15.01. Similarly, our supreme court has explained that “a negligent act is a proximate cause of an injury if - the injury is of a type which a reasonable man would see as a likely result of his conduct.” Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456 (1992); see Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943) (to have proximate cause “[t]he injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act”).
In this case, the exclusion provision of the insurance policy provides that coverage does not extend to bodily injury or property damage “which is expected or intended by any insured.” The underlying complaint alleges intentional conduct and that Savickas shot Vinicky pursuant to a negligent assessment of a need for self-defense. In light of the definition of proximate cause and the facts pled in the underlying complaint, I submit that the proximate cause element exists as a matter of law. It is not a viable factual issue. Further, even if it could somehow be said that proximate cause could be at issue, the trial judge’s decision that Savickas expected injury to occur does not in any way impact that issue.
If Savickas- intentionally shot Vinicky as contended in the intentional tort count, it is axiomatic that Savickas’ conduct of intentionally aiming and firing a loaded gun at Vinicky is the proximate cause of any injury to Vinicky. According to the negligence count, Savickas negligently believed that Vinicky had a gun or would otherwise harm him. He thus believed he had to defend himself. However, Savickas’ negligent assessment of a need for self-defense alone did not result in any injury to Vinicky. Rather, the injury was caused by Savickas’ conduct, the aiming and firing of the gun, which was done in furtherance of and based upon the negligent assessment. Again, proximate cause exists as a matter of law. When one aims and fires a loaded gun at a person, injury of that person is the natural and probable consequence. Whether Savickas was acting in self-defense does not in any way change the result. Thus, the element of proximate cause is not a question of fact. Rather, it exists as a matter of law. Thus, proximate cause is simply not an issue in the underlying tort action, much less a crucial issue.
Assuming arguendo that proximate cause could somehow be determined to be a factual issue in the underlying action, I fail to understand how it could be impacted by the trial court’s decision that Savickas expected the injury to occur. What Savickas expected is not an ultimate fact or crucial issue in the tort action. The determination made by the trial court does not estop the plaintiff in the underlying case from pursuing any of his theories of recovery. See Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197 (1976). That Savickas expected injury to occur is consistent with plaintiffs underlying theory that Savickas negligently acted in self-defense. It is also consistent with Savickas’ sworn testimony in the criminal case. Assertions by Savickas and the estate of Vinicky that legal cause could be impacted by the trial court’s finding that Savickas expected injury are without merit. It is absurd to say that injury to Vinicky was an unforeseen consequence of Savickas’ conduct. Only where it appears to the court that it was highly extraordinary that the actor’s conduct could have brought about the harm, may the court conclude that such conduct is not a legal cause of plaintiff’s injury. See Restatement (Second) of Torts, § 435(2) (1965). “ [F]oreseeability is a determinative consideration only where a particular occurrence is so extreme that, as a policy decision, it would be unwise to require defendant to guard against it.” Nelson v. Commonwealth Edison, 124 Ill. App. 3d 655, 663 (1984).
For all these reasons, I would affirm the judgment of the circuit court of Cook County.1
Petition to exceed page limitation for dissents was allowed by the Supreme Court of Illinois on April 15, 1999 (No. MR 12788).