Boilerplate demands for “all other relief deemed appropriate” are routine. However, they should not be overlooked when analyzing whether a complaint triggers an insurer’s duty to defend. In Country Mutual Insurance Company v. Bible Pork, Inc. (No. 08-MR-14), the Fifth District Court of Appeals in Illinois held that a nuisance suit against a livestock producer seeking injunctive relief triggered a duty to defend. The appellate court’s decision is significant because the court held that a complaint that appeared to seek only injunctive relief, also asserted a claim for damages by asking for “all other relief deemed appropriate.”
In May 2005, a livestock producer began construction on a hog factory in Clay County, Illinois. While the construction was underway, 21 neighboring landowners filed suit against the livestock producer to enjoin operation of the factory as a nuisance. The complaint also included the boilerplate claim for “any other relief deemed appropriate.” The livestock producer requested that its insurer provide a defense and indemnification, however the insurer denied coverage and filed a declaratory judgement action seeking a determination that it had no duty to defend the producer. The trial court sided with the producer, found a duty to defend existed and ordered the insurer to reimburse the livestock producer’s legal fees for the nuisance suit, which were in excess of $2 million.
The Illinois Court of Appeals considered three issues on appeal; (1) whether there was an “occurrence” that triggered a duty to defend, (2) whether the policies’ pollution exclusion excused the insurer from providing a defense, and (3) whether the underlying suit included a claim for damages in addition to equitable relief. What is noteworthy is that the court agreed with the trial court that the underlying complaint’s request for equitable relief – namely enjoining the operation of the factory – and “any other relief deemed appropriate” was sufficient to meet the policy’s requirement that the underlying suit seek “damages.” In so holding, the court was guided by the Illinois Supreme Court’s 1992 decision in Outboard Marine Corp. v. Liberty Mutual Insurance Co., in which the court held that, absent policy language to the contrary, a suit seeking equitable relief can satisfy the policy provision grating coverage for a “suit seeking damages.” Also of note is that the court considered statements by the Plaintiffs’ attorney in the nuisance case that the plaintiffs may decide to pursue a claim for monetary damages if they were successful having the factory declared a nuisance. The court was willing to look outside the “four corners” of the underlying complaint to this extrinsic evidence which, according to the court, demonstrated that there was a duty to defend.
Justice Moore dissented from the majority opinion. Justice Moore stated that he would have found in favor of the insurer because the underlying complaint did not allege that property damage had occurred during the insurer’s policy period. The nuisance suit was filed before the factory began operations. Therefore, the factory could not have caused any property damage or injury to any of the plaintiffs while the policies were in effect.
This case alerts insurers that under Illinois law, even without a specific demand for monetary damages, a boilerplate demand for all relief deemed appropriate could be sufficient to trigger a duty to defend. Further, despite the general eight corner rule, if extrinsic facts indicate a claim is within the policy’s coverage, these facts should be considered in evaluating whether coverage exists.