Skolnik v. Allied Property & Casualty Insurance Co. , 2015 IL App (1st) 142438 ( 2016 )


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    Appellate Court                          Date: 2016.02.23
    13:04:53 -06'00'
    Skolnik v. Allied Property & Casualty Insurance Co., 
    2015 IL App (1st) 142438
    Appellate Court          JACOB SKOLNIK, ELIZABETH SKOLNIK, JOSHUA SKOLNIK,
    Caption                  and WILLIAM JOHNSON, Individually and as the Special
    Administrator of the Estate of Haley Ellen Johnson,
    Defendants-Appellants, v. ALLIED PROPERTY AND CASUALTY
    INSURANCE COMPANY, Plaintiff-Appellee.
    District & No.           First District, Second Division
    Docket No. 1-14-2438
    Filed                    December 22, 2015
    Modified opinion filed   January 26, 2016
    Rehearing denied         January 27, 2016
    Decision Under           Appeal from the Circuit Court of Cook County, No. 12-CH-41359; the
    Review                   Hon. Rita Mary Novak, Judge, presiding.
    Judgment                 Reversed and remanded.
    Counsel on               Edward Sedlacek, of Huck Bouma PC, of Wheaton, for appellants.
    Appeal
    Joseph P. Postel, of Lindsay, Rappaport & Postel, LLC, of Chicago,
    for appellee.
    Panel                    JUSTICE HYMAN delivered the judgment of the court, with opinion.
    Justices Neville and Simon concurred in the judgment and opinion.
    OPINION
    ¶1       The day after an evening out with friends, 21-year-old Haley Johnson died of methadone
    intoxication in the bedroom of defendant Joshua Skolnik, who lived at his parents’ home.
    ¶2       Plaintiff Allied Property and Casualty Insurance Company insured the home under
    homeowners’ and an umbrella personal liability policy. Both policies exclude liability for
    bodily injury “arising out of the use” of controlled substances; however, both policies also
    contain an exception clause that carves out “the legitimate use of prescription drugs by a
    person following the orders of a licensed physician.” Skolnik’s prescribed methadone was
    found in the bedroom where Johnson died. Allied brought suit for a declaratory judgment
    regarding whether it had a duty to defend the Skolniks in a wrongful death lawsuit filed by
    Johnson’s father.
    ¶3       The crux of this case involves whether the complaint alleges an independent injury. If the
    complaint alleges an injury not “arising out of” the “use of” a controlled substance, Allied
    has a duty to defend. We hold that the underlying complaint contains allegations within, or
    potentially within, the coverage of both the homeowners’ and umbrella policies. Specifically,
    the complaint alleges Skolnik (“Skolnik” refers to Joshua) failed to request emergency
    medical assistance for Johnson within a reasonable period of time after knowing that she was
    physically incapacitated, unresponsive, or unconscious; and knowing or discovering she
    ingested or unknowingly consumed methadone or other illegal substances in the Skolnik
    home. Further, count I alleges that Skolnik refused to allow Johnson’s two friends to check
    on, talk to, see, or render aid to Johnson on their request. These allegations of negligence, if
    proven, potentially could be covered under the insurance policies and, therefore, Allied has a
    duty to defend Skolnik in the underlying lawsuit.
    ¶4                                        BACKGROUND
    ¶5        The complaint contains the following factual allegations. During the evening of May 18,
    2012, Johnson along with some friends gathered at a pub in Palatine. Around 11:30 p.m.,
    Johnson and her friends met Skolnik, who bought them all drinks. Johnson’s friends left the
    pub around 1:30 a.m., and Johnson remained with Skolnik. After Johnson had another drink
    that Skolnik provided, she told him that she thought “something” had been put into it, and
    needed assistance to walk. Skolnik took Johnson to his parents’ home where they had sex in
    his bedroom. Skolnik had abused drugs in the past and used methadone; Skolnik’s parents
    knew of his drug history and of the methadone in the house. Skolnik’s parents heard voices
    in his bedroom at 4 a.m. Around 9 a.m., Skolnik’s mother checked on Skolnik and he told her
    that Johnson passed out in the bedroom. Between 11:30 a.m. and 1 p.m., two of Johnson’s
    friends came to the Skolniks’ home to check on her but Skolnik did not let them see her,
    telling them that Johnson was passed out naked in his bedroom. At 3:30 p.m., Skolnik told
    his parents Johnson was unconscious. Three hours later, his parents left for dinner and
    another six and a half hours later, Skolnik pulled Johnson off his bed and called his parents
    who had not yet returned. He told them Johnson felt cold to the touch. The Skolniks
    instructed their son to dress Johnson and call 911. At 10:11 p.m., Skolnik called 911. When
    -2-
    the police arrived at 10:14 p.m., Johnson was not breathing. She was pronounced dead at the
    Skolniks’ home at 11:31 p.m.
    ¶6         The autopsy results indicated methadone intoxication as the cause of death. Lab tests also
    detected concentrations of GHB and Rohypnol (both are referred to as “date-rape” drugs) in
    Johnson’s blood. The manner of death was “undetermined.”
    ¶7                                           Insurance Policies
    ¶8         Allied’s homeowners’ policy provided:
    “A. COVERAGE E–Personal Liability
    If a claim is made or a suit is brought against an ‘insured’ for damages
    because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to
    which this coverage applies, we will:
    1. [as amended by Endorsement HO 300IL (09-09)]: Pay up to our limit of
    liability for the damages for which an insured is legally liable; and
    2. Provide a defense at our expense by counsel of our choice, even if the
    suit is groundless, false or fraudulent.”
    ¶9         The relevant scope of coverage under the homeowners’ policy provides:
    “E. COVERAGE E–Personal Liability and COVERAGE F–Medical Payments to
    Others
    Coverages E and F do not apply to the following:
    1. Expected or Intended Injury
    ‘Bodily injury’ or ‘property damage’ which is expected or intended by an
    ‘insured’ even if the resulting ‘bodily injury’ or ‘property damage’:
    a. Is of a different kind, quality or degree than initially expected or
    intended; or
    b. Is sustained by a different person, entity, real or personal property,
    than initially expected or intended.
    ***
    8. Controlled Substance
    ‘Bodily injury’ or ‘property damage’ arising out of the use, sale,
    manufacture, delivery, transfer or possession by any person of a
    Controlled Substance as defined by the Federal Food and Drug Law at 21
    U.S.C.A. Sections 811 and 812. Controlled Substances include but are not
    limited to cocaine, LSD, marijuana and all narcotic drugs. However, this
    exclusion does not apply to the legitimate use of prescription drugs by a
    person following the orders of a licensed physician.”
    The policy defines “occurrence” as an “accident” which results, during the policy period, in
    bodily injury. In addition, the policy contains a provision defining “insured” to include
    relatives who live in the insured’s household.
    ¶ 10       Allied also issued a personal umbrella liability policy, which was in effect on the date of
    Johnson’s death. This policy contains an exclusion for controlled substances:
    “A. The coverages provided by this policy do not apply to:
    -3-
    ***
    14. ‘Bodily injury,’ ‘property damage’ or ‘personal injury’ which arises out
    of:
    ***
    c. The use, sale, manufacture, deliver[y], transfer or possession by any
    person of a Controlled Substance(s) as defined by the Federal Food and Drug
    Law at 21 U.S.C.A. Sections 811 and 812. Controlled Substances include but
    are not limited to cocaine, LSD, marijuana and all narcotic drugs. However,
    this exclusion does not apply to the legitimate use of prescription drugs by a
    person following the orders of a licensed physician.”
    ¶ 11                                     Underlying Complaint
    ¶ 12       Johnson’s father, William Johnson, sued the Skolniks, parents and son, alleging two
    counts of wrongful death, two counts of liability under the Survival Statute (755 ILCS 5/27-6
    (West 2010)), one count of false imprisonment, one count of civil conspiracy to restrain
    Johnson against her will, and one count of battery against only Skolnik for putting a
    “date-rape” drug in Johnson’s drink while at a pub and later having sex with her without her
    consent.
    ¶ 13       Count I of the first amended complaint alleges wrongful-death negligence in that Skolnik
    carelessly and improperly stored methadone, a controlled substance, in a manner he knew or
    should have known to be unsafe and potentially fatal, “notwithstanding the fact that some of
    the substances may have been legitimately prescribed by a licensed professional; negligently,
    carelessly, and improperly failed to store methadone in a secured and locked condition as
    required of authorized methadone users by the Clinic; negligently, carelessly, and improperly
    failed to remove the methadone when it was not properly stored, and failed to return it to the
    Clinic.”
    ¶ 14       Count I also alleges that Skolnik and his parents negligently, carelessly, and improperly
    failed to request emergency medical assistance for Johnson within a reasonable period of
    time after knowing she was physically incapacitated or unconscious or both; and knowing or
    discovering she ingested or unknowingly consumed methadone or other illegal substances in
    the Skolnik home. Further, count I alleges that Skolnik and his parents refused to allow
    Johnson’s two friends to check on, talk to, see, or render aid to Johnson upon their request;
    and that they “took affirmative actions to Johnson’s detriment and acted in concert” after
    discovering she was “dead, unconscious, and/or unresponsive in their home.”
    ¶ 15       The second wrongful death count alleges willful and wanton conduct in that the parents
    knew or recklessly disregarded the danger of having methadone in their home, and knew
    Johnson’s condition in their son’s bedroom but failed to call 911.
    ¶ 16       Count III alleges Skolnik gave Johnson a drink containing the date-rape drugs GHB and
    Rohypnol without her consent and later had nonconsensual sex with her. Counts IV and V
    claim damages under section 27-6 of the Survival Statute (id.) and allege negligence and
    willful and wanton conduct, respectively. Counts VI and VII allege false imprisonment and
    civil conspiracy, respectively.
    -4-
    ¶ 17                            Allied’s Motion for Declaratory Judgment
    ¶ 18        Allied sought a declaratory judgment on the pleadings, asserting that the controlled
    substances exclusion in the homeowners’ policy and the umbrella policy operated to relieve
    it of any duty to defend Skolnik against the underlying complaint. Allied moved for summary
    judgment in the declaratory judgment action; the Skolniks cross-moved for summary
    judgment.
    ¶ 19        The trial court ruled that Allied had no duty to defend because the exclusion clause
    operated to release Allied from the duty to defend, and the exception to the exclusion clause
    in the insurance policies did not apply. After this appeal was filed, Elizabeth and Jacob
    Skolnik were voluntarily dismissed without prejudice to reinstatement.
    ¶ 20                                          ANALYSIS
    ¶ 21                                       Standard of Review
    ¶ 22       “ ‘The construction of an insurance policy and a determination of the rights and
    obligations thereunder are questions of law for the court [to decide and] are appropriate
    subjects for disposition by way of summary judgment.’ ” Illinois Emcasco Insurance Co. v.
    Waukegan Steel Sales Inc., 
    2013 IL App (1st) 120735
    , ¶ 11 (quoting Crum & Forster
    Managers Corp. v. Resolution Trust Corp., 
    156 Ill. 2d 384
    , 391 (1993)). “Summary judgment
    is appropriate when there is no genuine issue of material fact and the moving party is entitled
    to judgment as a matter of law. [Citation.]” (Internal quotation marks omitted.) Pekin
    Insurance Co. v. Equilon Enterprises LLC, 
    2012 IL App (1st) 111529
    , ¶ 12. We review de
    novo the trial court’s decision on a motion for summary judgment. Progressive Universal
    Insurance Co. of Illinois v. Liberty Mutual Fire Insurance Co., 
    215 Ill. 2d 121
    , 128 (2005).
    This same standard applies in a case involving a duty to defend a claim. Pekin Insurance Co.,
    
    2012 IL App (1st) 111529
    , ¶ 12.
    ¶ 23                                         Duty to Defend
    ¶ 24       For Allied to have a duty to defend Skolnik in the underlying action, the allegations in the
    complaint must overcome the exclusionary effect of the clause in the homeowners’ and the
    umbrella policy excepting accidents that “arise out of” the use of a controlled substance.
    Skolnik claims: (1) the exception to the exclusion provides coverage for the “legitimate use”
    of prescribed drugs should take effect because the methadone was prescribed for Skolnik but
    negligently stored; (2) Skolnik’s failure to summon help and his refusal to allow Johnson’s
    friends to check her well-being were negligent acts independent of her methadone ingestion
    that would potentially be covered, and, therefore, Allied has a duty under both policies to
    defend him against these allegations. According to Allied, Johnson’s ingestion of the
    methadone falls within the controlled substances exclusion clause and operates to release
    Allied from a duty to defend. As for the exception, Allied argues it has no effect because the
    methadone had been prescribed only for Skolnik.
    ¶ 25       The duty of an insurer to defend is separate from and broader than the duty to indemnify.
    Westfield National Insurance Co. v. Long, 
    348 Ill. App. 3d 987
    (2004). “[E]ven if an insurer
    ultimately may not be obligated to indemnify, if the allegations in a complaint state a cause
    of action that gives rise to the possibility of recovery under the policy, the insurer’s duty to
    defend is called into play.” (Emphasis added.) American Country Insurance Co. v. Cline, 309
    -5-
    Ill. App. 3d 501, 512 (1999). If the terms of an insurance policy are susceptible to more than
    one meaning, they are considered ambiguous, and any doubts regarding coverage must be
    resolved in the insured’s favor. Maryland Casualty Co. v. Dough Management Co., 2015 IL
    App (1st) 141520, ¶ 51. See Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty
    Corp., 
    166 Ill. App. 3d 550
    , 557 (1988) (“in general the question of whether a claim against
    an insured is potentially covered is so close in so many cases that the benefit of the doubt
    goes to the insured”). Where the underlying complaint alleges facts within or potentially
    within the scope of coverage, the insurer must defend its insured, even if the allegations are
    groundless, false, or fraudulent (Northbrook Property & Casualty Co. v. Transportation Joint
    Agreement, 
    194 Ill. 2d 96
    , 98 (2000)) or the probability of recovery is minimal. Hertz Corp.
    v. Garrott, 
    207 Ill. App. 3d 644
    , 648 (1990).
    ¶ 26        The insurer bears the burden of establishing that it has no duty to defend. Pekin Insurance
    Co. v. Roszak/ADC, LLC, 
    402 Ill. App. 3d 1055
    , 1059 (2010). This burden includes
    affirmatively demonstrating the applicability of an exclusion. American Zurich Insurance Co.
    v. Wilcox & Christopoulos, L.L.C., 
    2013 IL App (1st) 120402
    , ¶ 34. Courts also narrowly
    read any policy provision that purports to exclude or limit coverage, and apply them only
    where the terms are “ ‘clear, definite, and specific.’ ” State Farm Fire & Casualty Co. v.
    Perez, 
    387 Ill. App. 3d 549
    , 553 (2008) (quoting Gillen v. State Farm Mutual Automobile
    Insurance Co., 
    215 Ill. 2d 381
    , 393 (2005)).
    ¶ 27        The complaint need only state a claim that gives rise to a possibility of recovery under the
    policy, rather than a probability of recovery to trigger Allied’s duty to defend. We first
    compare the allegations of the underlying complaint with the relevant portions of the policy.
    Pekin Insurance Co. v. Wilson, 
    237 Ill. 2d 446
    , 455 (2010); Pekin Insurance Co., 2012 IL
    App (1st) 111529, ¶ 14. This process forms the “eight corners” rule. See Farmers Automobile
    Insurance Ass’n v. Country Mutual Insurance Co., 
    309 Ill. App. 3d 694
    , 698 (2000) (“the
    court should compare the four corners of the underlying complaint with the four corners of
    the insurance contract”). Indeed, in applying the “eight corners” rule, we conduct a de novo
    review of the complaint.
    ¶ 28                                  Skolnik’s Insurance Policies
    ¶ 29       The allegations of the complaint determine the duty to defend. Maryland Casualty Co. v.
    Peppers, 
    64 Ill. 2d 187
    , 193 (1976). A threshold issue arises when the underlying complaint
    alleges several theories against the insured; the insurer has a duty to defend should any
    theory of recovery allege potential coverage. Maxum Indemnity Co. v. Gillette, 
    405 Ill. App. 3d
    881, 886 (2010). While the allegation of intentional delivery of the fatal drug would
    remain outside the coverage, the duty to defend is not extinguished when negligence is also
    alleged. We thus consider whether the two counts alleging negligence trigger the duty to
    defend.
    ¶ 30       Skolnik asserts the complaint alleges facts within or potentially within coverage. The
    policy provided a defense against any claim made or suit brought for damages due to bodily
    injury caused by an “occurrence” to which the coverage applied. The policy defines
    occurrence as an accident which results in bodily injury. Count I of the complaint alleged that
    Skolnik had a prescription for methadone for his own use and improperly stored the
    methadone, failed to remove it, and knew or recklessly disregarded the dangers of having it
    -6-
    in the home. Count I also states that he “nonetheless delivered his own methadone [in an
    amount fatal] to Johnson,” an intentional act that would not be covered.
    ¶ 31       Additionally, count I alleges that Skolnik negligently, carelessly, and improperly failed to
    request emergency medical assistance for Johnson within a reasonable period of time after
    knowing that she was physically incapacitated and unconscious or both; and knowing or
    discovering she ingested or unknowingly consumed methadone or other illegal substances
    from within the home. Further, count I alleges that Skolnik refused to allow Johnson’s two
    friends to check on, talk to, see, or render aid to Johnson despite their request and that
    Skolnik “took affirmative actions to Johnson’s detriment” after discovering she was “dead,
    unconscious, and/or unresponsive in [the] home.” Assuming these allegations to be true, is
    Skolnik possibly negligent, triggering Allied’s duty to defend under the homeowners’ policy?
    ¶ 32       Skolnik argues the negligence counts allege acts that have the potential of recovery under
    the insurance policies. In support of his position, Skolnik relies heavily on the New Jersey
    Supreme Court’s decision in Flomerfelt v. Cardiello, 
    997 A.2d 991
    (N.J. 2010), where the
    court held that “in circumstances in which the underlying coverage question cannot be
    decided from the face of the complaint, the insurer is obligated to provide a defense until all
    potentially covered claims are resolved.” 
    Id. at 999.
    It is the nature of the claim asserted in
    the pleadings, rather than the specific details of the incident or the litigation’s possible
    outcome, that governs the insurer’s obligation. 
    Id. at 998.
    The New Jersey court found
    “circumstances arising from potentially concurrent causes.” 
    Id. at 1005.
    The court required
    the insurer to provide a defense where it had not yet been determined whether an injury arose
    out of drug use, which was excluded under the policy, or something else. 
    Id. at 1006.
    The
    facts, like here, are heartbreaking.
    ¶ 33       The plaintiff, Wendy Flomerfelt, “sustained temporary and permanent injuries after she
    overdosed on alcohol and drugs during a party hosted by defendant Matthew Cardiello at his
    parents’ home while they were out of town.” 
    Id. at 993.
    The complaint ascribed Flomerfelt’s
    injuries to the ingestion of drugs, alcohol, or a combination of both; the serving of alcohol to
    her when she was visibly intoxicated; or the negligent failure to promptly summon aid. The
    defendant turned to his parents’ homeowners’ insurer, seeking defense and indemnification
    under the policy. 
    Id. The insurer
    denied coverage, pointing to “the language of its policy that
    excluded claims ‘[a]rising out of the use, ... transfer or possession’ of controlled dangerous
    substances.” 
    Id. The record
    was inconclusive as to the cause of the plaintiff’s injuries; she
    may have been injured by alcohol or drugs or both, either before, during or even after the
    party, as there was a delay in summoning aid. 
    Id. at 1005.
    On the face of the complaint, only
    some of the theories would support defendant’s demand that his homeowners’ insurer defend
    and indemnify him. 
    Id. at 1003-04.
    The Flomerfelt court held the insurer owed its
    policyholder a duty to defend because there were potentially covered causes and claims. 
    Id. at 1005-06.
    ¶ 34       Allied counters that the complaint alleges that Johnson’s death resulted from controlled
    substances. While there is a dearth of Illinois case law on point, Allied cites State Farm Fire
    & Casualty Co. v. Young, 
    2012 IL App (1st) 103736
    , which is inapposite. In holding that the
    allegations in the complaint fell within the exclusion for expected or intended injury, the
    court found that the well-pleaded facts alleged a combination of heroin overdose and beating
    caused the victim’s death, both intentional actions of the defendant. 
    Id. ¶ 19.
    The court then
    stated, “we do not look to the asserted legal theory, seeking to impose liability upon the
    -7-
    defendant for his actions, to determine whether an accident occurred; rather, we look to the
    intended or expected results arising from the defendant’s actions or, in this case, omissions.”
    
    Id. ¶ 31.
    In other words, in Young, while the allegations concerning the defendant’s failure to
    call 911 were labeled “ ‘negligence,’ ” there was no doubt that the defendant’s failure to act
    was intentional, and the result from his failure to act was expected. 
    Id. ¶ 41.
    Thus, when the
    insured intends to cause the consequences of his conduct or the consequences are reasonably
    expected to result from that conduct, the insurer had no duty to defend. 
    Id. ¶ 35
          We find Flomerfelt more persuasive than Young. The facts in Flomerfelt are closer to this
    case, and the issue before the court was the same. Young, on the other hand, addressed the
    intentional acts of the insured and the consequences of those acts.
    ¶ 36       Also looking outside our jurisdiction, as did Skolnik, Allied cites an Indiana and a
    Massachusetts case. Neither applies as the events in those cases substantially differ from this
    case.
    ¶ 37       In the Indiana case, Forman v. Penn, 
    945 N.E.2d 717
    (Ind. Ct. App. 2011), a guest at the
    insured’s home suffered permanent injuries after ingesting methadone prescribed to one of
    the home’s occupants. The guest sued the insured under a homeowners’ policy containing a
    controlled substances exclusion clause that was virtually identical to the case at bar, alleging
    negligent supervision and control over the prescribed methadone and “negligence in caring
    for him after it was discovered that he could not be wakened.” 
    Id. at 719.
    The insured denied
    furnishing the methadone and asserted that the guest took the methadone without the
    insured’s knowledge or participation. 
    Id. The trial
    court granted summary judgment in the
    insurer’s favor, and the court of appeals affirmed, finding that the guest’s injuries “arose out
    of [his] use of the methadone, which was not a legitimate use of the drug pursuant to the
    orders of a licensed physician.” (Emphasis omitted.) 
    Id. at 721
    (citing Massachusetts
    Property Insurance Underwriting Ass’n v. Gallagher, 
    911 N.E.2d 808
    , 811 (Mass. App. Ct.
    2009)). Despite the allegation of negligence in the complaint, the facts as outlined by the
    Indiana Court of Appeals only indicate the guest “could not be wakened” and ultimately was
    hospitalized. 
    Id. at 719.
    Significantly, in a later case of Forman, the court explained,
    “although [in Forman] an occupant of the house had a prescription for the methadone, the
    injured party did not. [Citation.] Thus, his injuries clearly arose out of the illegitimate use of
    the drug.” Keckler v. Meridian Security Insurance Co., 
    967 N.E.2d 18
    , 26 (Ind. Ct. App.
    2012). Negligence in caring for the victim was not addressed or even mentioned.
    ¶ 38       Allied also relies on an opinion from Massachusetts that addressed an insurance policy’s
    exclusion for the use of controlled substances in the context of an apparent suicide. There, a
    guest died after overdosing on a controlled substance prescribed for the defendant
    homeowner. Massachusetts Property Insurance Underwriting Ass’n v. Gallagher, 
    911 N.E.2d 808
    (Mass. App. Ct. 2009). The decedent’s estate alleged the homeowner negligently left a
    prescription painkiller in a place accessible to the guest. Unlike here, the plaintiff did not
    allege negligence in failing to act. The court held that the exception to the exclusion covering
    legitimate prescription use did not apply because the guest’s own use of the painkiller caused
    his death, which “clearly [did] not fall within the exception.” 
    Id. at 811.
    ¶ 39                                      Proximate Cause
    ¶ 40      In the trial court, Skolnik argued the possibility of multiple proximate causes of
    Johnson’s death and that the determination of what caused her death presented an issue of
    -8-
    fact in the underlying case. The autopsy results indicated Johnson died of methadone
    intoxication. The blood tests also showed concentrations of GHB and Rohypnol, allegedly
    put in Johnson’s drink by Skolnik. The manner of death was “undetermined.” Skolnik asserts
    that any determination of the cause of death would be an ultimate fact the trial court should
    have avoided by abstaining from granting summary judgment.
    ¶ 41       “ ‘A proximate cause is one that produces an injury through a natural and continuous
    sequence of events unbroken by any effective intervening cause.’ ” Crumpton v. Walgreen
    Co., 
    375 Ill. App. 3d 73
    , 79 (2007) (quoting Chalhoub v. Dixon, 
    338 Ill. App. 3d 535
    , 539
    (2003)). It is well established that proximate cause requires both “cause in fact” and “legal
    cause.” See, e.g., Lee v. Chicago Transit Authority, 
    152 Ill. 2d 432
    , 455 (1992). As the
    Supreme Court of Illinois pointed out in Lee, these two requirements reflect “a policy
    decision that limits how far a defendant’s legal responsibility should be extended for conduct
    that, in fact, caused the harm.” 
    Id. “Cause in
    fact can be established if a defendant’s conduct
    can be deemed to be a substantial factor in bringing about the injury.” McKenna v.
    AlliedBarton Security Services, LLC, 
    2015 IL App (1st) 133414
    , ¶ 37 (citing 
    Lee, 152 Ill. 2d at 455
    ). “Legal cause is essentially a question of foreseeability, where one determines
    whether the injury is of a type that a reasonable person would see as a likely result of his or
    her conduct.” 
    Id. ¶ 38.
    ¶ 42       If a proximate cause of an injury comes within the included coverage of an insurance
    policy, the coverage is not voided merely because the policy excludes an additional
    proximate cause of the injury. See United States Fidelity & Guaranty Co. v. State Farm
    Mutual Automobile Insurance Co., 
    152 Ill. App. 3d 46
    , 48 (1987) (coverage exists for
    negligent supervision even though motor vehicle was underlying cause of injuries and
    policies contained exclusions; claim of negligent supervision is separate and distinct from
    operation, use, or ownership of the motor vehicle and, therefore, motor vehicle exclusion
    does not preclude coverage). Extrapolating from this holding, we find the claim of
    negligence here to be a potential separate and independent cause of Johnson’s death.
    ¶ 43       At oral argument, Allied argued that the “sole proximate cause” test is not the test to
    determine whether an exclusion applies, asserting that the Second District in Allstate
    Insurance Co. v. Smiley, 
    276 Ill. App. 3d 971
    (1995), “essentially overturned” this court’s
    ruling in United States Fidelity & Guaranty Co., 
    152 Ill. App. 3d 46
    . First, this statement is
    faulty. Our supreme court has noted that the doctrine of stare decisis requires courts to follow
    the decisions of higher courts, but does not bind courts to follow decisions of “equal or
    inferior courts.” (Internal quotation marks omitted.) O’Casek v. Children’s Home & Aid
    Society of Illinois, 
    229 Ill. 2d 421
    , 440 (2008). An appellate court that disagrees with a result,
    or distinguishes a case from another district on the facts, lacks the power to overrule the case,
    but the opinion of one district is not binding on other districts. 
    Id. ¶ 44
          Second, the facts in Smiley are not analogous to the facts here. All actions and inactions
    by the Smileys related to their business, whereas Skolnik’s omissions, as alleged, were
    independent of the methadone overdose. In Smiley, the husband and wife defendants ran a
    home child care business and were insured under a premises liability policy designed to
    cover only losses and injuries associated with the property itself, not those related to their
    business operations. The policy contained an exclusion clause for injuries arising out of
    business activities. After a child in the defendants’ care accidentally drowned in their
    swimming pool, the child’s estate sued alleging that he had been in the care, custody, and
    -9-
    control of the wife at the time of death and that her negligent acts or the husband’s negligent
    failure to properly maintain the premises, or both, caused the child’s death. In deciding the
    insurer had no duty to defend, the court found the alleged failure to supervise, failure to
    restrict access to the pool, and failure to provide adequate locks on the gate in the fence
    around the pool were all related to the duty to exercise due care to protect the child from
    dangerous household conditions. The court reasoned that the injuries “unquestionably
    originated or came about from the day-care services.” 
    Smiley, 276 Ill. App. 3d at 979
    . We
    will not extend the holding in Smiley to this case.
    ¶ 45       In its petition for rehearing, Allied points to language in Westfield National Insurance
    Co., 
    348 Ill. App. 3d 987
    , regarding the definition of the phrase “arising out of” in a
    controlled substance exclusion clause. Westfield, quoting Smiley, interpreted the phrase
    “arising out of” in an exclusionary clause to mean “ ‘[t]o spring up, originate ***’ [citation],
    or ‘to come into being,’ ‘to come about: come up: take place’ [citation]. Smiley, 
    276 Ill. App. 3d
    at 978.” (Internal quotation marks omitted.) 
    Id. at 991-92.
    This argument, however,
    ignores the gravamen of our decision, i.e., that Johnson’s cause of death has not been
    conclusively established. Westfield decided the issue in the context of the defendant in the
    underlying lawsuit putting a methamphetamine drug in the plaintiff’s daughter’s drink,
    “causing a toxic overdose that caused her death.” 
    Id. at 988-89.
    Unquestionably, this was an
    intentional act that “arose out of” the use, sale, delivery, transfer or possession of a controlled
    substance.
    ¶ 46       Skolnik asserts that whether Johnson’s prior alcohol and drug use or his “failure to
    summon aid” were contributing causes of her death are issues of fact to be determined by a
    factfinder. The record reveals that the negligence counts allege an omission, something far
    removed from actively giving or sharing heroin with the victim and then beating her as in
    Young, where the failure to summon help was connected inextricably to the intentional act of
    the insured party. Here, despite the autopsy notation regarding cause of death, a genuine
    issue of material fact exists as to whether Johnson’s death was caused solely by her
    methadone ingestion. The four corners of the complaint contain details that, if true, describe
    a lengthy and protracted period of time during which Skolnik could have sought assistance.
    The unknown is whether Johnson would have died if Skolnik had allowed Johnson’s friends
    to see her or called 911 or truthfully informed his parents earlier about Johnson’s condition.
    Other potential causes include a genetic predisposition and a prior history of drug abuse.
    ¶ 47       We hold that the “drastic method” of disposing of a case by summary judgment should
    not be employed because an issue of material fact is present. Murphy v. Urso, 
    88 Ill. 2d 444
    ,
    463-64 (1981).
    ¶ 48                                        Premature Claim
    ¶ 49       Skolnik’s next argument closely relates to the issue of causation. Skolnik asserts that
    summary judgment was premature because there is substantial similarity of the issues in the
    underlying case and the declaratory judgment suit. Again, when uncertain as to whether to
    defend or refuse to defend, an insurer can file a declaratory judgment action to determine its
    obligations and rights. United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 
    265 Ill. App. 3d
    533, 536 (1994). In a declaratory-judgment action, the court may not determine an
    insured’s actual liability nor determine any facts that may form the basis of an insured’s
    liability. State Farm Fire & Casualty Co. v. Hatherley, 
    250 Ill. App. 3d 333
    , 336 (1993).
    - 10 -
    ¶ 50       “[T]he issue before the declaratory court is the interpretation of a contract.” Oakley
    Transport, Inc. v. Zurich Insurance Co., 
    271 Ill. App. 3d 716
    , 725 (1995). The tort liability on
    the part of the insured establishes contractual liability on the part of the insurer only where
    the policy affords coverage. 
    Id. That determination
    of coverage is “subject to the rules of
    contract construction, and not tort principles.” 
    Id. In construing
    an insurance policy, the court
    should examine the policy as a whole and interpret the words according to their plain,
    ordinary, and popular meanings; any doubts in meaning should be resolved in favor of the
    insured. 
    Id. at 725-26.
    ¶ 51       The question before us involves Allied’s duty to defend Skolnik against the claims, and
    its resolution does not prematurely determine facts alleged in the underlying complaint.
    Finding a duty to defend against the underlying claim of wrongful death due to negligence
    does not control the outcome of the ultimate question of liability or an obligation to
    indemnify. It is, rather, a determination of the insurance policy’s requirements regarding the
    defense of an insured in a liability lawsuit. The complaint alleges a failure to summon
    assistance when it was apparent that Johnson was in distress. The question of Skolnik’s
    negligence as alleged in the complaint can only be resolved after a full hearing on the facts
    and circumstances. In this regard, we find the reasoning of Flomerfelt persuasive. Was there
    an independent basis for liability in that Skolnik could have saved Johnson but he did not
    summon help? Because an issue of material fact exists, we cannot conclude without a doubt
    that Allied, as the moving party, is entitled to judgment as a matter of law. Our resolution
    imposes only the duty to defend against the allegations; the determination of liability is a
    question for the trial court in the underlying case.
    ¶ 52                                 “Legitimate Use” Exception
    ¶ 53       We need not address Skolnik’s final argument on Illinois public policy favoring
    rehabilitation and treatment of controlled substance abusers. While drug use remains a
    vexing and persistent societal challenge and health problem, we leave the public policy
    concerns for another day.
    ¶ 54                                          CONCLUSION
    ¶ 55       We reverse the trial court’s grant of summary judgment in favor of Allied and remand to
    the trial court for further proceedings in accordance with this opinion.
    ¶ 56      Reversed and remanded.
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