Claim for indemnity premature until insured obligated to pay damages
Given that, as the court noted in Gregory v. Farmers Automobile Ins. Assoc, (no. 5-07-0264, 6-24-09, on motion to publish order of 5-18-09), appellate courts have "repeatedly held" that while a declaratory judgment on the duty to defend becomes ripe upon filing, one for indemnity does not until the insured becomes legally obligated to pay damages, it is not clear why the court granted a motion to publish.
In any case, the insured there sought a declaration of coverage under an auto liability policy for a pending wrongful death action. The insured is being defended under another policy.
The trial court denied the insurers' motions to dismiss the counts seeking coverage and later granted the insured summary judgment on those counts. The appellate court reversed. Because the tort action is pending, a claim for indemnity is premature:
{U}ntil the fact of liability or the amount of damages is determined in the underlying action, any declaration of coverage or policy limits would be advisory.
The court also rejected the insured's claim of waiver, based on the insurers' filing of a counterclaim seeking a finding of no coverage, because they had raised the ripeness issue in their motions to dismiss.
