State Farm argues Lakin suit was amended in 'calculated' attempt to trigger coverage

By The Madison County Record | May 8, 2014

Former lawyer Tom Lakin and the John Doe family pursuing a sexual abuse suit against him agree that State Farm should pay their lawyers.

Lakin and the family want State Farm to pay legal fees under a homeowner policy that covered Lakin’s property and an umbrella liability policy that covered him.

State Farm counsel Daniel Hasenstab of Belleville sought relief from St. Clair County circuit judge Randall Kelley on April 22, taking shots at both sides.

Hasentstab claimed Lakin excluded himself from coverage by intentionally harming a person.

He argued that the family amended their complaint to allege negligence, “in an apparent calculated and facetious attempt to trigger coverage.”

“It is not credible to contend that engaging in sexual acts with minors, allowing minors to perform sexual acts with third parties, or allowing minors to consume drugs and alcohol amounts to negligent conduct,” Hasenstab wrote.

Policies trigger a duty to defend only when bodily injury results from an occurrence, accident, or loss, he wrote.

“Illinois courts define accident as an unforeseen occurrence, usually of an untoward or disastrous character or an undersigned sudden or unexpected event of an inflictive or unfortunate character,” he wrote.

Videotape of the Doe family confirms the lack of any accidental conduct, he wrote, and continuing that Lakin intended to harm John Doe when he molested him.

He wrote that Lakin pleaded guilty to criminal sexual abuse after stipulating that he placed a 15 year old boy’s penis in his mouth.

“Thomas cannot now deny that he intentionally sexually abused John Doe,” Hasenstab wrote.

Lakin did not plead guilty, but he registered as a sex offender.

Associate judge Heinz Rudolf, who presides over the Doe suit, ruled on April 28 that Lakin can’t deny facts he admitted in the stipulation.

The Doe family sued Lakin, his law firm, and sons Kristopher and Brad, in 2006.

The complaint alleged that Tom committed criminal sexual assault on three minors and Kristopher committed it on two.

Neither Tom nor Kristopher tendered the complaint to State Farm, Hasenstab wrote.

He wrote that the family amended the complaint on Feb. 19, 2013, alleging negligence against Tom for the first time.

They amended it again last June 10, attempting to trigger State Farm coverage by dropping the sexual abuse count against Kristopher, according to Hasenstab. He wrote that they apparently realized Kristopher might qualify as an insured person under the homeowner policy.

“When evaluating whether an insurer has a duty to defend, the court properly focuses not simply on what legal theory is being pursued but on the allegedly tortious conduct on which the underlying lawsuit is based,” he wrote.

“The court can also properly consider the timing and circumstances of amendments to the underlying complaint the insured is relying upon in an attempt to trigger coverage.

“If it is clear on the face of the allegations that a claim is outside the terms of coverage, an insurer can conclude that it has no duty to defend.

“The court’s primary objective in construing an insurance policy is to give effect to the intent of the parties in light of the risk undertaken, the subject matter insured, and the contract’s purposes.”

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