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No. 2--03--0556

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

WESTFIELD NATIONAL INSURANCE                       )     Appeal from the Circuit Court of

COMPANY and WESTFIELD INSURANCE             )     Du Page County.

COMPANY,                                                                    )
                 )

            Plaintiffs-Appellees,                                               )

v.                                                                                      )     No. 02--MR--817
     )

ROBERT LONG,                                                             )
                 )

            Defendant-Appellant                                              ) 

                                                                                         )      Honorable

(Janice Aeschliman, Adm'r of the Estate of                         )     Bonnie M. Wheaton,

Sara L. Aeschliman, Defendant).                                        )     Judge, Presiding.

______________________________________________________________________________

            JUSTICE KAPALA delivered the opinion of the court:

            Defendant, Robert Long, appeals from an order of the circuit court of Du Page Countygranting judgment on the pleadings (735 ILCS 5/2--615(e) (West 2002)) in favor of plaintiffs,Westfield National Insurance Company and Westfield Insurance Company. Plaintiffs filed this suitagainst defendant, their insured, for a declaration (see 735 ILCS 5/2--701 (West 2002)) that theyhave no duty to defend or indemnify him in an underlying suit alleging defendant's liability under the Drug Dealer Liability Act (the Act) (740 ILCS 57/5 et seq. (West 2002)). We affirm.

FACTS

            On May 13, 2002, Janice Aeschlimann (Janice), the plaintiff in the underlying suit, filed a firstamended complaint (the Aeschlimann complaint) against defendant and others for acts that led to thedeath of Sara L. Aeschlimann (Sara), Janice's daughter. The Aeschlimann complaint alleged that onMay 14, 2000, Garrett Harth (Harth) placed a methamphetamine drug in Sara's drink, causing a toxicoverdose that caused her death. Count VII of the Aeschlimann complaint was directed againstdefendant and alleged that defendant "knowingly participated in the chain of distribution of an illegaldrug that was actually digested by the [p]laintiff's decedent, Sara L. Aeschlimann." Upon being sued,defendant tendered the suit to plaintiffs for defense and indemnification. Westfield National InsuranceCompany insured defendant under a homeowner's policy that was in effect at the time of Sara's death. Westfield Insurance Company insured defendant under a personal umbrella policy, also in effect atthe time of Sara's death. Both policies contained the following exclusion:

"We do not provide coverage for: Bodily injury *** arising out of the use, sale,manufacture, delivery, transfer or possession by any person of a ControlledSubstance(s) as defined by the Federal Food and Drug Law."

            Plaintiffs filed their declaratory judgment suit on August 13, 2002, seeking a declaration thatthe above exclusion, among others enumerated in the policies, relieved them from their duty to defendor indemnify defendant. After defendant filed an answer to the declaratory judgment complaint,plaintiffs filed a motion for judgment on the pleadings. The trial court granted judgment on thepleadings on the basis of the drug exclusion, ruling that the allegations against defendant in theAeschlimann complaint "fall squarely" within this exclusion. Defendant filed a timely appeal.

DISCUSSION

            A motion for judgment on the pleadings under section 2--615(e) of the Code of CivilProcedure (735 ILCS 5/2--615(e) (West 2000)) is like a motion for summary judgment limited to thepleadings. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999). Judgment on the pleadings is proper if the admissions in the pleadings disclose that there is nogenuine issue of material fact and that the movant is entitled to judgment as a matter of law. Employers Insurance, 186 Ill. 2d at 138. For purposes of resolving the motion, the court mustconsider as admitted all well-pleaded facts set forth in the pleadings of the nonmoving party and thefair inferences drawn therefrom. Employers Insurance, 186 Ill. 2d at 138. The court must alsoexamine the pleadings to determine whether an issue of material fact exists and, if not, determinewhether the controversy can be resolved solely as a matter of law. Employers Insurance, 186 Ill. 2dat 138. Copies of written instruments attached to a pleading as an exhibit are considered a part ofthe pleading. Employers Insurance, 186 Ill. 2d at 139. Our review of the disposition of a case onjudgment on the pleadings is de novo. Mount Vernon Fire Insurance Co. v. Heaven's Little HandsDay Care, 343 Ill. App. 3d 309, 314 (2003).

            Insurance policies are to be liberally construed in favor of coverage. Mount Vernon, 343 Ill.App. 3d at 314. The duty of an insurer to defend its insured is much broader than its duty toindemnify. Mount Vernon, 343 Ill. App. 3d at 314. When determining whether the insurer has a dutyto defend, the court must compare the allegations contained in the underlying complaint to thelanguage contained in the policy. Mount Vernon, 343 Ill. App. 3d at 314. An insurer has no dutyto defend its insured if the underlying complaint alleges facts that, if true, would exempt the insuredfrom coverage under the policy. American Family Mutual Insurance Co. v. Chiczewski, 298 Ill. App.3d 1092, 1094 (1998).

            Defendant contends that the drug exclusion in the insurance policies does not apply becausethe allegations of the Aeschlimann complaint do not directly link defendant to the act that causedSara's death. The Aeschlimann complaint seeks to hold defendant liable in money damages under theAct. One of the purposes of the Act is to provide a civil remedy for damages to persons in acommunity injured as a result of illegal drug use. 740 ILCS 57/5 (West 2002). To foster thispurpose, the legislature provided that "[a] person who knowingly participates in the illegal drugmarket within this State is liable for civil damages as provided in this Act." 740 ILCS 57/20(a) (West2002). The Act defines "illegal drug market" as "the support system of illegal drug relatedoperations, from production to retail sales, through which an illegal drug reaches the user." 740 ILCS57/15 (West 2002). "Illegal drug" means a drug whose distribution is a violation of State law. 740ILCS 57/15 (West 2002). We are not called upon to decide whether defendant is liable under theAct, but whether he would potentially be covered by plaintiffs' insurance policies. See Empire Fire& Marine Insurance Co. v. Clarendon Insurance Co., 267 Ill. App. 3d 1022,1026 (1994).

            The Aeschlimann complaint alleges the following against defendant:

"2. Defendant, Robert Long, knowingly distributed in the chain of distribution anillegal drug that was actually digested by the [p]laintiff's decedent, Sara L.Aeschlimann.

3. Defendant, Robert Long, knowingly participated in the chain of distribution of anillegal drug that was actually digested by the [p]laintiff's decedent, Sara L.Aeschlimann."

            The policies exclude coverage for bodily injury "arising out of the use, sale, manufacture,delivery, transfer or possession by any person of a Controlled Substance(s) as defined by the FederalFood and Drug Law." The Aeschlimann complaint alleges distribution and participation indistribution, activities that clearly fall within the sale, delivery, transfer, or possession ofmethamphetamine, which defendant concedes is a controlled substance under the federal statute. SeeUnited States v. Carlson, 87 F.3d 440, 444-45 (11th Cir. 1996); United States v. Durham, 941 F.2d886, 888-89 (9th Cir. 1991).

            No Illinois court has considered a similar policy drug exclusion. In Prudential Property &Casualty Insurance Co. v. Brenner, 350 N.J. Super. 316, 795 A.2d 286 (2002), the New Jerseyappellate court construed a drug exclusion that is similar to the exclusion in our case. The facts inBrenner, however, are distinguishable. There, Brenner and his cohorts went to the home of amarijuana dealer with the express purpose of acquiring marijuana, either for free or by theft. Brenner,350 N.J. Super. at 319-20, 795 A.2d at 287-88. During the attempt to obtain the marijuana, one ofBrenner's companions shot and killed the drug dealer. Brenner, 350 N.J. Super. at 320, 795 A.2d at288. The drug dealer's mother commenced a wrongful death suit against Brenner and the othersinvolved. Brenner, 350 N.J. Super. at 318, 795 A.2d at 287. Brenner was insured under a Prudentialpolicy, and Prudential sought a declaration that the drug exclusion excluded coverage of the shootingincident. Brenner, 350 N.J. Super. at 320-21, 795 A.2d at 288. The court held that the language ofthe exclusion was clear and unambiguous, saying that coverage is excluded for injuries "which ariseout of, are connected with, or are incident to the use and possession of illicit drugs." Brenner, 350N.J. Super. at 322, 795 A.2d at 289. The court held that even the attempt to gain illegal drugs wasexcluded from coverage because Brenner's actions were wholly focused on the use and possessionof illicit drugs, and it is this activity which the exclusion clearly and expressly addresses. Brenner,350 N.J. Super. at 322, 795 A.2d at 289. In contrast, defendant's actions in our case are alleged tohave been focused directly on the distribution of illegal drugs, which clearly falls within the language"sale, delivery, transfer, or possession" found in the exclusion in plaintiffs' policies.

            Defendant next contends that the phrase in the exclusion, "arising out of," is vague andambiguous and should be construed in favor of coverage. Defendant relies on Maryland Casualty Co.v. Chicago & North Western Transportation Co., 126 Ill. App. 3d 150, 154 (1984), for theproposition that the phrase "arising out of" in an insurance policy is both broad and vague and mustbe liberally construed in favor of the insured. Plaintiffs dispute this application to the present factsand argue that the logic employed by Maryland, which involved construction of a policy that grantedcoverage, is not applicable when construing the language of an exclusion. In Allstate Insurance Co.v. Smiley, 276 Ill. App. 3d 971, 978 (1995), we interpreted the phrase "arising out of" when used inan exclusionary clause of an insurance policy and held that the phrase is not ambiguous as a matterof law but should be given a limited interpretation in favor of the insured. We defined the phrase tomean " '[t]o spring up, originate ***' [citation], or 'to come into being,' 'to come about: come up: takeplace' [citation]." Smiley, 276 Ill. App. 3d at 978. Applying our definitions in Smiley, it is clear thatSara's death arose out of the sale, delivery, transfer, or possession of methamphetamine. The onlyactivity alleged against defendant in the Aeschlimann complaint is his distribution of the illegal drug. Accordingly, the trial court properly granted judgment on the pleadings.

            Affirmed.

            Affirmed.BYRNE and GILLERAN JOHNSON, JJ., concur.