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Vol. 11 - Issue 3

June 15, 2022


Wow!: Now That’s Some Serious Pleading Into Coverage


A few weeks back I addressed a pet topic of mine – plaintiffs that allege that obviously intentional conduct is negligent, in an effort to trigger an insurer's duty to defend a defendant. The objective is to hopefully open the door to insurance as a source of funding for a settlement or judgment.

One of my favorite examples: State Farm v. Simone, No. 20-908 (W.D. Pa. Jan. 28, 2021), where the complaint alleged that Charles Simone breached the duty to act reasonably and avoid injuring Michael Wain by, among other things, (1) "[n]egligently striking [Michael Wain] and causing him to suffer personal injuries"; (2) "[f]ailing to observe [Michael Wain] and avoid striking him"; and (3) "[f]ailing to stop his arm before striking Michael Wain." By the way, Simone allegedly punched Wain with enough force to break seven bones in his face.

I invited people to submit good examples of pleading into coverage – and, if I used it, I would send them a copy of Insurance Key Issues.

Robert Chemers, of Chicago's Pretzel & Stouffer, took me up on it. His submission wasn't just good. He hit it out of Wrigley -- and even over the rooftops on West Waveland.

Robert sent me an amended complaint in Gibbons v. Cusick, No. 12L77, (Cir. Ct. of LaSalle Cty., Ill.(Oct. 22, 2012). It is a tragic case involving a horrific crime. As often happens in such cases, the search for criminal justice proceeds to the pursuit of civil redress. And then, given the underlying criminal conduct, coverage issues can arise.

Here are the allegations taken verbatim from the complaint:


1. Tracy Cusick, deceased, was married to Kenneth Cusick, Defendant, on February 5, 1998 and remained married to Defendant until Decedent's death.***

6. On January 17, 2006, the Defendants, without legal justification, murdered Decedent which was directly caused by the following intentional acts or omissions:

Knowingly and intentionally forced Tracy's head into a toilet bowl, submerging her head under toilet water, until she died from downing and asphyxiation;

Knowingly and intentionally provided medical personnel and law enforcement authorities with false and misleading information regarding Tracy's death.

OK. That's pretty intentional. Probably not the stuff of an "occurrence" and an easy disclaimer. But the coverage effort did not end there.

Count III: Wrongful Death - Negligence

6. It was the duty of care of the Defendant to exercise reasonable care under the circumstances to protect the Decedent; yet, notwithstanding that duty, the Defendant breached his duty of care by committing one or more of the following acts and/or omissions;

Failed to administer first aid care or attempt any type of resuscitation on behalf of Tracy Cusick, despite Defendant's professional training as a firefighter and despite Defendant's special relationship to Tracy as her husband;

Failed to report Tracy's need for medial attention to the appropriate emergency medical personnel in a timely fashion;

Failed to provide medical professionals with accurate information regarding Decedent's injuries.

While Gibbons v. Cusick is an extreme example of pleading into coverage, there is nothing unusual about the effort.

Incidentally, I interviewed Robert for the March 8, 2021 issue of CO, where I called him an "insurance coverage record-holder." At the time of the interview, a Lexis search revealed that he had served as counsel in a staggering 650 or so opinions (not all coverage, but certainly most). I don't believe that there is any coverage lawyer credited with so many opinions.

You can see the interview here:





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