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Bohner v. ACE American Insurance Co.8/26/2005
efined by the exclusion provision, are excluded from coverage as illegal, the exclusion subsumes the entire purpose of the policy, which is to provide gap coverage, despite the majority's improper attempt to limit the extent of the exclusion to unintentional acts. Yet, the majority announces that the intent of the parties was that DUI would be the sole unintentional act that is excluded from coverage. This is not a question of public policy but a question of the parties' intent. Here, the majority has interpreted the language of the policy to provide illusory coverage to the insured. I believe that the majority's interpretation is unreasonable and leads to an absurd result in the context of the purpose and policy of insurance coverage.
I recognize that DUI is a more serious offense than a simple traffic violation. However, the majority is recasting the agreement according to what it wants the contract to exclude rather than what the parties reasonably intended. The majority's particular interpretation of "illegal" has no support in the text of the policy. It focuses on the level of criminality. Yet, this interpretation is based on nothing more than the majority's understandable distaste for plaintiff's conduct. The majority should refrain from redrafting an overly broad, ambiguous clause to exclude coverage for plaintiff's conduct.
The exclusion provision is sufficiently ambiguous that it should be interpreted to exclude only intentional illegal acts, which require a mens rea and an intention to harm a third party. When the terms of an insurance policy are ambiguous, they must be construed against the insurer, as the drafter of the policy. Prudential Property & Casualty Insurance Co. v. Kelly, 352 Ill. App.3d 873, 875 (2004). The majority not only fails to do so but erroneously differentiates between unintentional illegal acts for apparent reasons immaterial to insurance law.
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