The Illinois Court of Appeals held that the insurer had a duty to defend a consolidated case that included one complaint alleging intentional acts and another complaint alleging negligence. Farmers Auto. Ins. Ass'n v. Neumann, 2015 Il. App. 140026 (Ill. Ct. App. March 24, 2015, reh'g denied March 24, 2015).
Neumann allegedly hit Bitner with his automobile as Bitner, a police offier, was directing traffic. Bitner sued Neumann, alleging intentional assault and intentional battery. Farmers rejected Neumann's tender because the policy did not cover intentional acts.
Farmers filed for a declaratory judgment. In his answer, Neumann included an affidavit stating that he did not intend to strike or cause bodily harm to Bitner. The trial court granted the motion to strike the affidavit.
Thereafter, a second lawsuit involving the same incident was filed against Neumann. CCMSI Insurance Company, a subrogee of the City, alleged Neumann was negligent and sought to recover the amounts of worker's compensation that CCMSI would have to pay Bitner as a result of the accident. Neumann filed a motion to consolidate the two actions, which was granted. Farmers acknowledged, under a reservation of rights, its duty to defend Neumann against the CCMSI complaint.
In the Farmers' lawsuit, Neumann filed a motion for summary judgment, asserting that because the two underlying actions were consolidated, Farmers should defend both. The trial court denied the motion.
The appellate court reversed. The court agreed with Neumann that the consolidation of the two lawsuits was the equivalent to a single lawsuit with several causes of action, and since Farmers already acknowledged its duty to defend on one claim, it had to defend both claims.
The appellate court also considered Neumann's argument that the trial court erred in striking his affidavit. The appellate court found no error. The affidavit was a conclusory statement regarding Neumann's intent, seeking to broaden the scope of the Bitner pleadings and trigger Farmers' duty to defend.
