Continental Casualty Company v. Howard Hoffman and Associates

ILLINOIS OFFICIAL REPORTS
Appellate Court
Continental Casualty Co. v. Howard Hoffman & Associates, 2011 IL App (1st) 100957Appellate Court CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellee, v.
Caption HOWARD HOFFMAN AND ASSOCIATES; HOWARD HOFFMAN;
GERALD H. COHEN; and ESTATE OF THOMAS GOLDSTON,
Darlene Waters, Administrator, Defendants-Appellants (Estate of Phillip
Ewing, Sr., Thomas Leinenweber, Public Administrator; Estate of Fannie
McAllister, Vera Posey, Executor; Estate of Butler Tolbert, Ira Tolbert,
Administrator; Estate of Harold Pruitt, Lamon Prymil, Administrator;
Estate of James Richardson, Ruthie Birt, Executor; Estate of Robie
Butcher, Gary T. Butcher, Administrator; Estate of Curtis Hagler, George
B. Randolph, Executor; Estate of Oscar Oboza, Sr., Oscar Obozo,
Administrator; Estate of Frances Johnson, Renae Murphy, Executor;
Estate of Benjamin Rogers, Julia L. Smith, Administrator, and Brittany
Chaney, Defendants).
District & No. First District, First Division
Docket Nos. 1-10-0957, 1-10-1080 cons.
Filed August 15, 2011
Rehearing denied September 20, 2011
Held In a declaratory judgment action brought by defendant law firm’s insurer,
(Note: This syllabus the trial court properly determined that the numerous claims against the
constitutes no part of firm as the result of an employee’s embezzlement scheme arising from
the opinion of the court the management of several probate estates should be treated as a single,
but has been prepared related claim subject to the $100,000 “each claim” limit.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CH-25568; the
Review Hon. Stuart E. Palmer, Judge, presiding.
Judgment Affirmed.
Counsel on Cantwell & Cantwell, of Chicago (Peter A. Cantwell and Paul Hammond,
Appeal of counsel), for appellant Estate of Thomas Goldston.
Collins Bargione & Vukovich, of Chicago (George B. Collins and
Benjamin C. Butler, of counsel), for appellant Howard Hoffman &
Associates.
Troutman Sanders LLP, of Chicago (Christopher H. White, of counsel),
and Wiley Rein LLP, of Washington D.C. (Richard A. Simpson and Gary
P. Seligman, of counsel), for appellee.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Presiding Justice Hall and Justice Hoffman concurred in the judgment
and opinion.
OPINION
¶1 Defendants-appellants, Howard Hoffman & Associates, a law firm, Howard Hoffman and
Gerald H. Cohen, lawyers (collectively, the Hoffman defendants), and the estate of Thomas
Goldston, Darlene Waters, administrator (Goldston Estate), have appealed from an order
entering summary judgment in favor of the Hoffman defendants’ legal professional liability
insurer, plaintiff-appellee Continental Casualty Company (Continental). In this action for
declaratory judgment, Continental sought a determination that its indemnity obligation to the
Hoffman defendants with respect to a number of underlying claims and lawsuits was limited
to a $100,000 policy limit for multiple claims that are considered “related” under the liability
policy rather than a $300,000 aggregate policy limit for multiple claims that are unrelated.
¶2 In appeal No. 1-10-0957, the Hoffman defendants assert that the circuit court improperly
found that their Continental insurance policy provided only $100,000 in coverage for the
underlying claims and lawsuits. In appeal No. 1-10-1080, the Goldston Estate makes similar
arguments while also maintaining that Continental’s declaratory judgment action was
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improperly premature because liability had not yet been determined in its underlying suit
against the Hoffman defendants. These two appeals have now been consolidated, and for the
following reasons we affirm.
¶3 I. BACKGROUND
¶4 Continental filed its initial complaint for declaratory judgment in July of 2008. In an
amended complaint filed in March of 2009, Continental generally alleged that it had issued
a lawyer’s professional liability policy insuring the Hoffman defendants and covering the
period from December 30, 2005, to December 30, 2006. In a letter dated February 1, 2006,
the Hoffman defendants informed Continental that one of the nonlawyer employees of the
Howard Hoffman & Associates law firm, Ms. Judith Stachura, had “embezzled significant
funds” from at least 16 probate estates that were represented by the firm. Continental further
alleged that claims for losses resulting from this embezzlement had been asserted against the
Hoffman defendants by 12 of these estates, including claims made by 3 estates in the circuit
court of Cook County. These included claims made in the following actions: (1) Estate of
Fannie McAllister v. Law Offices of Howard Hoffman & Associates, No. 2007-L-013531
(Cir. Ct. Cook Co.) (McAllister estate); (2) Estate of Darnell Chaney, No. 2005-P-3453 (Cir.
Ct. Cook Co.) (Chaney estate); and (3) Estate of Thomas Goldston v. Law Offices of Howard
Hoffman & Associates, No. 2008-CH-03280 (Cir. Ct. Cook Co.) (Goldston estate).
¶5 The amended complaint also asserted that the Hoffman defendants had informed
Continental that total losses from Ms. Stachura’s embezzlement were expected to exceed
$300,000. Furthermore, a dispute had arisen between Continental and the Hoffman
defendants regarding the parties’ respective rights and obligations under the liability policy
issued by Continental, which contained a “per claim” liability limit of $100,000 and an
“aggregate” limit of $300,000. Continental contended that a single $100,000 limit applied
to all claims arising out of Ms. Stachura’s embezzlement scheme, while the Hoffman
defendants contended that it faced multiple, unrelated claims and that the $300,000 aggregate
policy limit therefore applied.
¶6 Finally, Continental’s complaint alleged that its claim expenses would reduce the amount
of insurance coverage available to pay damages to the estate claimants under the terms of its
policy. Therefore, the Hoffman defendants assumed their own defense pursuant to an
agreement under which Continental would pay a single, per-claim limit of $100,000, less
previously incurred claim expenses, and both Continental and the Hoffman defendants would
reserve their right to seek a judicial determination as to the actual amount of coverage
available under the policy. Pursuant to that agreement, Continental’s complaint sought a
declaration that it only had $100,000 of liability under its policy and had therefore fulfilled
its obligations and exhausted its liability under the policy by paying the single, per-claim
limit of $100,000 to the Hoffman defendants. The 12 estate claimants were made defendants
in this suit “to ensure that the Court can provide complete relief to all affected parties.”
¶7 A copy of the insurance policy Continental issued to the Hoffman defendants was
attached to the amended complaint. The policy provides lawyer’s liability coverage to
Howard Hoffman & Associates, Howard Hoffman, and Gerald H. Cohen, and the
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declarations page indicates the policy contains a limit of liability, inclusive of claim
expenses, of $100,000 for “Each Claim” and $300,000 in the “Aggregate.” The policy also
contains the following relevant provisions:1
“I. INSURING AGREEMENT
A. Coverage
The Company agrees to pay on behalf of the Insured all sums in excess of
the deductible that the Insured shall become legally obligated to pay as damages
and claim expenses because of a claim that is both first made against the
Insured and reported in writing to the Company during the policy period by
reason of an act or omission in the performance of legal services by the Insured
or by any person for whom the Insured is legally liable[.] ***
***
D. Exhaustion of limits
The Company is not obligated to investigate, defend, pay or settle, or
continue to investigate, defend, pay or settle a claim after the applicable limit of
the Company’s liability has been exhausted by payment of damages or claim
expenses or by any combination thereof or after the Company has deposited the
remaining available limits of liability into a court of competent jurisdiction. ***
***
II. LIMITS OF LIABILITY AND DEDUCTIBLE
A. Limit of liability–each claim
Subject to paragraph B. below, the limit of liability of the Company for
damages and claim expenses for each claim first made against the Insured and
reported to the Company during the policy period shall not exceed the amount
in the Declarations for each claim.
B. Limit of liability–in the aggregate
The limit of liability of the Company for damages and claim expenses for
all claims first made against the Insured and reported to the Company during
the policy period shall not exceed the amount stated in the Declarations as the
aggregate.
***
D. Multiple insureds, claims and claimants
The limits of liability shown in the Declarations and subject to the provisions
of this Policy is the amount the Company will pay as damages and claim
expenses regardless of the number of Insureds, claims made or persons or
entities making claims. If related claims are subsequently made against the
1
The policy further provides that “[w]ords and phrases that are in bold are defined in the
Definitions section of this Policy.” We will preserve that formatting in our citations to the relevant
policy provisions throughout this opinion.
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Insured and reported to the Company, all such related claims, whenever made,
shall be considered a single claim first made and reported to the Company
within the policy period in which the earliest of the related claims was first
made and reported to the Company.
***
III. DEFINITIONS
Wherever used in this Policy:
***
B. ‘Claim’ means a demand received by the Insured for money or services
arising out of an act or omission, including personal injury, in the rendering of or
failing to render legal services. A demand shall include the service of suit or the
institution of an arbitration proceeding against the Insured.
***
O. ‘Related acts or omissions’ mean all acts or omissions in the rendering of
legal services that are temporally, logically, or causally connected by any common
fact, circumstance, situation, transaction, event, advice or decision.
P. ‘Related claims’ mean all claims arising out of a single act or omission or
arising out of related acts or omissions in the rendering of legal services.”
¶8 The amended complaint was served upon each of the defendants, but appearances and
answers to the complaint were filed only by the Hoffman defendants and representatives of
the McAllister and Goldston estates. Ultimately, Continental filed a summary judgment
motion and the Hoffman defendants filed a cross-motion for summary judgment. Attached
to these motions were a number of documents supportive of the parties’ arguments.
¶9 For example, attached to Continental’s motion for summary judgment was a copy of the
February 1, 2006, letter in which the Hoffman defendants informed Continental about Ms.
Stachura’s embezzlement scheme. In turn, attached to that letter was a notarized statement
completed by Ms. Stachura on January 27, 2006. In that statement, Ms. Stachura indicated
that she was a probate paralegal for the Hoffman defendants’ law firm and her duties
included managing the firm’s probate and estate files and accounts. Ms. Stachura also stated:
“I acknowledge that in the course of handling these various probate/estate
matters, I forged the Administrator’s or Executor’s name to certain checks made out
to my order and caused the monthly bank statements as received to be destroyed so
that my actions would not appear when an attorney worked on a file. The ledger sheet
in each file appeared correct since I did not list the forged checks thereon and same
would always reflect a balance consistent with legitimate checks as shown.”
¶ 10 Ms. Stachura also indicated that “[n]o other person in my office, the attorneys or my
family, had any knowledge of my criminal acts” and that she “used the money for gambling
purposes or to cover forgeries on estates which were closed and distributions made prior.”
¶ 11 Continental’s motion also contained documents related to the McAllister, Chaney, and
Goldston estates, including copies of pleadings filed in those actions. Pleadings filed in the
McAllister and Chaney estates generally alleged that one or more of the Hoffman defendants
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were retained to represent the respective estates. The pleadings further sought to recover for
the losses allegedly incurred as a result of the Hoffman defendants’ improper failure to
manage estate litigation or to supervise the actions of Ms. Stachura. The claims made by the
McAllister estate were ultimately settled, with the Hoffman defendants contributing $15,000
and agreeing that the McAllister estate would be entitled to up to $10,180 in additional funds
obtained as a result of any declaratory judgment action involving the Hoffman defendants
and their liability insurer. The claims made by the Chaney estate were settled in a similar
fashion, with Howard Hoffman contributing $54,313.47 and agreeing that the estate would
be paid up to $42,561.79 if any additional funds were obtained as a result of the instant
litigation. Both matters were subsequently dismissed pursuant to these settlement
agreements.
¶ 12 The Goldston estate’s complaint against the Hoffman defendants also generally asserted
that its losses resulted from the Hoffman defendants’ failure to properly manage the estate’s
litigation or to supervise the actions of Ms. Stachura, but the estate made other additional
allegations. Specifically, the complaint asserted that the Hoffman defendants represented
both the Goldston estate and the estate of Benjamin Rogers (Rogers estate). The Goldston
estate was a beneficiary of the Rogers estate, and Malcolm Goldston was the prior
administrator of the Goldston estate. The complaint further alleged that while certain
distributions had been made from the Goldston and Rogers estates, including distributions
to Malcolm Goldston, full distributions from those estates were never made. Nevertheless,
a “Final Account” was presented to the circuit court indicating that full distributions had in
fact been made in both estates. The Goldston estate asserted that the Hoffman defendants
acted improperly by making payment of Goldston estate proceeds to only certain estate
beneficiaries (including Malcolm Goldston), presenting an incorrect “Final Account” to the
circuit court, and failing to advise the Goldston estate of possible conflicts of interest and the
need to obtain substitute counsel. The Goldston estate’s claims remain pending in the circuit
court.
¶ 13 The Goldston estate filed a response to Continental’s motion. In that response, the
Goldston defendants also attached a number of documents. These documents established that
Ms. Stachura pled guilty to 11 separate charges of theft in 11 separate criminal cases
involving her embezzlement of estate funds. With respect to each conviction, a judgment for
restitution was entered in favor of each of the 11 different estates involved in the criminal
charges, with the total amount of restitution awarded exceeding $600,000.
¶ 14 Following oral argument, the circuit court granted Continental’s motion for summary
judgment and denied the Hoffman defendants’ cross-motion. The circuit court found that the
policy issued by Continental contained definitions of “related claims” and “related acts or
omissions” that were both clear and unambiguous and therefore those definitions would
control any interpretation of the policy. Turning to the allegations made against the Hoffman
defendants in the underlying suits, the court found that “all of the Insured’s acts or omissions
were connected to Stachura’s overall scheme to divert funds fraudulently from the defendant
estates to herself.” Therefore, the court found that the claims of all the estates should be
treated as a single, related claim under the policy and the “each claim” policy limit of
$100,000 should apply.
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¶ 15 The Hoffman defendants filed an appeal from this decision, and the Goldston estate
subsequently filed its own appeal.
¶ 16 II. ANALYSIS
¶ 17 As noted above, in their respective appeals the Hoffman defendants and the Goldston
estate both challenge the circuit court’s judgment in favor of Continental. The Goldston
estate also asserts that Continental’s declaratory judgment action was improperly premature.
We first address the ripeness issue before considering the propriety of the circuit court’s
award of summary judgment in favor of Continental.
¶ 18 A. Ripeness
¶ 19 The Code of Civil Procedure provides:
“The court may, in cases of actual controversy, make binding declarations of rights,
having the force of final judgments, whether or not any consequential relief is or
could be claimed, including the determination, at the instance of anyone interested
in the controversy, of the construction of any statute, municipal ordinance, or other
governmental regulation, or of any deed, will, contract or other written instrument,
and a declaration of the rights of the parties interested. The foregoing enumeration
does not exclude other cases of actual controversy. The court shall refuse to enter a
declaratory judgment or order, if it appears that the judgment or order, would not
terminate the controversy or some part thereof, giving rise to the proceeding.” 735
ILCS 5/2-701(a) (West 2008).
Thus, it is long been understood that complaints for declaratory judgment must show that the
issues of the case are not moot or premature, as courts should not “pass judgment on mere
abstract propositions of law, render an advisory opinion, or give legal advice as to future
events.” Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 281 (1998) (citing Pincham v.
Cunningham, 285 Ill. App. 3d 780, 782 (1996)). As such, whether “ ‘the insurer has a duty
to indemnify the insured for a particular liability is only ripe for consideration if the insured
has already incurred liability in the underlying claim against it.’ ” Czapski v. Maher, 385 Ill.
App. 3d 861, 867 (2008) (quoting Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
154 Ill. 2d 90, 127 (1992)).
¶ 20 It is on this basis that the Goldston estate contends that this declaratory judgment action
is premature. As the Goldston estate notes, Continental seeks only a ruling on the limits of
its indemnity obligations and no liability has yet been established in its underlying lawsuit
against the Hoffman defendants. The Goldston estate also asserts that because the two
settlements in the McAllister and Chaney estates did not total more than $100,000, any
determination of Continental’s obligation for any amounts over that amount is not yet
necessary. We disagree.
¶ 21 As an initial matter, we agree with Continental that the Goldston estate has waived the
ripeness issue by failing to raise it in the trial court below. Stokes, 298 Ill. App. 3d at 283
(“the issue of ripeness is not jurisdictional and may be waived if not raised in the circuit
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court”); Gregory v. Farmers Automobile Insurance Ass’n, 392 Ill. App. 3d 159, 162 (2009)
(the issue of ripeness waived where not raised below). While the estate contends that this
issue was “essential to the judgment” and therefore could not be waived, our supreme court
has only recently reaffirmed that ripeness is “subject to forfeiture if not raised in the trial
court.” Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 253 (2010).
¶ 22 Waiver aside, we find that this action was not brought prematurely. This lawsuit involves
claims by a total of 12 estates, Continental has not challenged the fact that these claims are
covered by its policy, and there does not appear to be any dispute that total losses will
significantly exceed $300,000. Continental has already paid the Hoffman defendants its
$100,000 single-claim limit, less certain claim expenses, and those funds have been used to
settle some of the underlying claims. Both the McAllister and Chaney estates have dismissed
their suits pursuant to settlement agreements with the Hoffman defendants. The combined
claims already paid in just these two settlements total nearly $70,000. Furthermore, pursuant
to those settlements the McAllister and Chaney estates (or beneficiaries thereof) are entitled
to over $50,000 of the $200,000 in additional insurance coverage that would be available
should Continental be unsuccessful in this declaratory judgment action.
¶ 23 The Goldston estate’s argument focuses too closely on its own unresolved claims against
the Hoffman defendants. It does not account for the fact that Continental brought this suit
against it, the Hoffman defendants, and 11 other estates in order, as it stated in its complaint,
to “ensure that the Court can provide complete relief to all affected parties.” While liability
has not been established in the claims brought by the Goldston estate, settlements have been
completed with respect to the claims of the McAllister and Chaney estates. The resolution
of this coverage action is of obvious present interest to those claimants–who are also parties
to this suit–as it will necessarily determine what, if any, additional recovery they will receive
pursuant to their settlement agreements with the Hoffman defendants. As such, a decision
in this case is capable of terminating “the controversy or some part thereof, giving rise to the
proceeding.” 735 ILCS 5/2-701(a) (West 2008). Moreover, despite the fact that no liability
has yet been determined with respect to its claims, the Goldston estate is properly a party to
this coverage litigation as “the injured party is a necessary party to the suit because he or she
has a substantial right in the insurance policy’s viability.” Skidmore v. Throgmorton, 323 Ill.
App. 3d 417, 421 (2001).
¶ 24 B. Summary Judgment
¶ 25 Having determined that this case is indeed ripe for adjudication, we now consider the
circuit court’s award of summary judgment to Continental. The Hoffman defendants and the
Goldston estate challenge the circuit court’s ruling by asserting: (1) the trial court erred in
finding the policy language unambiguous; and (2) regardless of the whether the policy
language was ambiguous, the various claims against the Hoffman defendants were not
“related.”
¶ 26 1. Standard of Review
¶ 27 Summary judgment is appropriate only where the pleadings, depositions, admissions and
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affidavits, viewed in the light most favorable to the nonmovant, show that no genuine issue
of material fact exists and that the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005(c) (West 2008). “The construction of an insurance policy and a
determination of the rights and obligations thereunder are questions of law for the court
which are appropriate subjects for disposition by way of summary judgment.” Crum &
Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Our review
of an order granting summary judgment is de novo. Schultz v. Illinois Farmers Insurance
Co., 237 Ill. 2d 391, 400 (2010).
¶ 28 2. Ambiguity
¶ 29 Our first consideration is whether the circuit court properly found the language at issue
here unambiguous, as this determination will greatly impact the remainder of our discussion.
The relevant analytical framework for this question was recently summarized in an opinion
of this court, wherein we noted that an insurance policy:
“is a contract and, as such, is subject to the same rules of interpretation that govern
the interpretation of contracts. [Citation.] Accordingly, when construing the language
of an insurance policy, the court’s primary objective is to determine and effectuate
the parties’ intentions as expressed in their written agreement. [Citation.] If the terms
in the policy are ‘clear and unambiguous,’ they must be given their plain and ordinary
meaning. [Citation.] If the terms are ambiguous, meaning that they are susceptible
to more than one reasonable interpretation, they will be construed strictly against the
insurer. [Citation.] The court will interpret the policy as a whole, considering the type
of insurance purchased, the nature of the risks involved, and the purpose of the
contract. [Citation.] Limiting provisions in the policy are construed liberally in favor
of the insured and against the insurer. [Citation.]
When determining whether an ambiguity between the terms of an insurance
policy exists, the provisions should be read together and not separately. [Citation.]
The inquiry is whether the provision is subject to more than one reasonable
interpretation, not whether other possibilities can be suggested. [Citation.]” Erie
Insurance Exchange v. Triana, 398 Ill. App. 3d 365, 368 (2010).
¶ 30 The Continental policy at issue here is a claims-made policy, which provides the insureds
with coverage for claims by third-parties that are both made and reported during the policy
period. Uhlich Children’s Advantage Network v. National Union Fire Co. of Pittsburgh, 398
Ill. App. 3d 710, 715 (2010). The specifically relevant policy language involves the proper
treatment of “Claims” and “Related claims.” A “Claim” is defined in the policy as “a
demand received by the Insured for money or services arising out of an act or omission,
including personal injury, in the rendering of or failing to render legal services.” “Related
claims” are defined in the policy as “all claims arising out of a single act or omission or
arising out of related acts or omissions in the rendering of legal services.” In turn, the
policy provides that “ ‘[r]elated acts or omissions’ mean all acts or omissions in the
rendering of legal services that are temporally, logically, or causally connected by any
common fact, circumstance, situation, transaction, event, advice or decision.” The policy
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then indicates, in a section involving “[m]ultiple insureds, claims and claimants,” that “[i]f
related claims are subsequently made against the Insured and reported to the Company,
all such related claims, whenever made, shall be considered a single claim first made and
reported to the Company within the policy period in which the earliest of the related
claims was first made and reported to the Company.”
¶ 31 When combined together, the plain language of these various policy provisions therefore
specifies that “all claims” arising out of “all acts or omissions in the rendering of legal
services that are temporally, logically, or causally connected by any common fact,
circumstance, situation, transaction, event, advice or decision” shall be considered a single,
related “demand received by the Insured for money or services arising out of an act or
omission, including personal injury, in the rendering of or failing to render legal services.”
As such, each such related claim is subject to the $100,000 “Each Claim” limit of liability
contained in the policy’s declarations page, as a separate policy section provides that “the
limit of liability of the Company for damages and claim expenses for each claim first made
against the Insured and reported to the Company during the policy period shall not exceed
the amount in the Declarations for each claim.”
¶ 32 Both the Hoffman defendants and the Goldston estate assert that the policy’s inclusion
of the phrase “logically *** connected” in its definition of related acts or omission renders
the policy ambiguous on its face and as a matter of law, pursuant to the decision in Village
of Camp Point v. Continental Casualty Co., 219 Ill. App. 3d 86 (1991). In that case, the
Fourth District of the Appellate Court was required to determine whether a number of actions
on the part of an insured lawyer constituted a single occurrence or multiple occurrences
under the terms of four successive professional liability policy periods. Id. at 87. In three of
the four policy periods, the policies at issue provided coverage for an “occurrence,” which
was defined to include an act or omission of the insured. In the fourth and final period, the
relevant language was changed to provide coverage for a “claim,” but coverage was still
provided for claims involving an insured’s acts or omissions. In all cases, the policy language
indicated that a “ ‘series of related’ ” acts or omissions would be treated as a single
“ ‘occurrence’ ” or “ ‘claim.’ ” Id. at 88-89. The court in Camp Point treated these two terms
as interchangeable, as its entire analysis is devoted to a determination of the number of
“occurrences” under the policies in question. Id. at 98-99.
¶ 33 In finding that the insured’s actions were in fact separate and unrelated occurrences, the
Camp Point decision quoted extensively from an opinion of the Arizona Supreme Court. Id.
at 98-102 (citing Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 735 P.2d
451 (Ariz. 1987)). In Helme, 735 P.2d at 456, the Arizona Supreme Court had to determine
the number of occurrences caused by the insureds’ acts or omissions under the language of
a policy substantially the same as the policies in Camp Point. The court noted that the policy
in question contained a provision combining “ ‘related’ ” acts and omissions into a single
“ ‘occurrence,’ ” and that the term “ ‘related’ ” was not further defined. Id. The court cited
the dictionary definition of “the intransitive verb ‘relate’ as ‘show[ing] or establish [ing] a
logical or causal connection between.’ ” Id. (quoting Webster’s Third New International
Dictionary 1916 (1985)). The court then cast doubt on utilizing the concept of a “ ‘logical
connection’ ” to determine if actions are considered ‘related’ ” under the provisions of an
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insurance policy such that they should be treated as a single “ ‘occurrence.’ ” Id. The Camp
Point decision’s lengthy quotation of Helme included the following portion of the Arizona
Supreme Court’s opinion:
“ ‘We do not believe that the word “related” as used in the policy can be equated
with the phrase “logical connection.” Logic, like beauty, is in the eye of the beholder
and greatly depends upon the subjective mental process of the reviewer. Incidents
may be “logically related” for a wide variety of indefinable reasons. Causal
connection depends, to a much greater extent, on objective facts in the record. If we
were compelled to equate “related” with “logically connected,” we would be
compelled to find the policy provision ambiguous ***.’ ” Camp Point, 219 Ill. App.
3d at 100 (quoting Helme, 735 P.2d at 456).
¶ 34 We do not find the Camp Point and Helme decisions to be on point, nor do we find the
concerns as to “logical connection” expressed in Helme as quoted in Camp Point to be
persuasive for finding an ambiguity in the policy before us. As an initial matter, in neither
case was the policy language at issue similar to the language here. In neither case did the
insurance policies themselves specifically define a related claim or occurrence to include the
concept of a logical connection. Camp Point, 219 Ill. App. 3d at 88-89; Helme, 735 P.2d at
456. Furthermore, the extent to which the Camp Point decision actually relied upon this
exact portion of the very lengthy citation to Helme is unclear, as this specific reasoning is
never discussed in the Illinois court’s analysis. Finally, there was no contention in Camp
Point that the policy language was ambiguous and the court did not hold that the phrase
“logically connected” was ambiguous as a matter of law. (Internal quotation marks omitted.)
Camp Point, 219 Ill. App. 3d at 100.
¶ 35 In any case, even assuming that the Camp Point decision can be seen as endorsing the
notion that a “logical” connection should not be incorporated into the concept of relatedness
in insurance policies, we find that any such reasoning has been persuasively rejected in
several subsequent decisions from other courts. See Continental Casualty Co. v. Wendt, 205
F.3d 1258, 1262-63 (11th Cir. 2000) (per curiam) (“the plain meaning of the word ‘relate’
is ‘to show or establish a logical or causal connection between’ ” (quoting district court
opinion)); Gregory v. Home Insurance Co., 876 F.2d 602, 606 (7th Cir. 1989) (same); Bay
Cities Paving & Grading, Inc. v. Lawyers’ Mutual Insurance Co., 855 P.2d 1263, 1274 (Cal.
1993) (same).
¶ 36 Indeed, while policy language similar to that at issue here does not appear to have been
addressed by any appellate court in this state, at least two other jurisdictions have found the
relevant policy language contained in Continental’s policy to be unambiguous and
enforceable. See Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381,
395 (2005) (decisions from other jurisdictions, while not binding, may be considered as
persuasive authority). In Bryan Brothers Inc. v. Continental Casualty Corp., 704 F. Supp.
2d 537, 543 (E.D. Va. 2010), a federal district court was asked to interpret a Continental
professional liability policy that defined “ ‘interrelated acts or omissions’ as ‘all acts or
omissions in the rendering of professional services that are logically or causally connected
by any common fact, circumstance, situation, transaction, event, advice or decision.’ ” The
court specifically found this language to be unambiguous and applied it as written. Id.-11-
Similarly, in Berry & Murphy, P.C. v. Carolina Casualty Insurance Co., 586 F.3d 803, 810
(10th Cir. 2009), the federal circuit court addressed a policy which defined a “related
wrongful act” as wrongful acts “which are logically or causally connected by reason of any
common fact, circumstance, situation, transaction, casualty, event or decision.” Again, this
language was determined to be unambiguous and enforceable. Id. at 812.
¶ 37 Notably, in Berry & Murphy the federal circuit court cited approvingly the analysis
contained in a decision of the federal district court in Colorado. Id. at 811 (citing
Professional Solutions Insurance Co. v. Mohrlang, No. 07-cv-02481-PAB-KLM, 2010 WL
321706 (D. Colo. Feb. 10, 2009)). In that case, the district court found unambiguous and
enforceable Continental policy definitions of the phrases “related claims” and “related acts
or omissions” that are exactly the same as those involved in this appeal. Mohrlang, 2010 WL
325903, at *9.
¶ 38 We are persuaded by this case law and hold that the policy definitions of “related claims”
and “related acts or omissions” contained in the Continental policy at issue here are not
ambiguous because they include the concept of a logical connection. As the court found in
Gregory, 876 F.2d at 606, simply because “[a]t some point, of course, a logical connection
may be too tenuous reasonably to be called a relationship” does not mandate that the concept
of a logical connection cannot be applied to determine relatedness under a policy of
insurance.
¶ 39 We similarly reject the Goldston estate’s contention that there is an ambiguity in the way
the Continental policy handles the terms “each claim,” a “single claim,” and “all claims.”
Specifically, the estate notes that the policy declaration page indicates the policy contains a
limit of liability, inclusive of claim expenses, of $100,000 for “Each Claim” and $300,000
in the “Aggregate.” Appropriately, the policy also contains a section entitled “Limit of
liability–each claim” which states that “the limit of liability of the Company for damages
and claim expenses for each claim first made against the Insured and reported to the
Company during the policy period shall not exceed the amount in the Declarations for each
claim,” i.e., $100,000.
¶ 40 However, the Goldston estate notes that the relevant provision involving “[m]ultiple
insureds, claims and claimants” does not use the phrase “each claim” but instead discusses
the new and undefined phrase, a “single claim.” That provision states that “[i]f related
claims are subsequently made against the Insured and reported to the Company, all such
related claims, whenever made, shall be considered a single claim first made and reported
to the Company within the policy period in which the earliest of the related claims was
first made and reported to the Company.” The Goldston estate then contends that because
the terms “single” and “single claim” are never defined, the policy fails to clarify whether
“single” claims are subject to the “Aggregate” limit of liability or are subject to the “each
claim” limit.
¶ 41 The Goldston estate similarly points out that a policy provision entitled “Limit of
liability–in the aggregate” provides that “[t]he limit of liability of the Company for damages
and claim expenses for all claims first made against the Insured and reported to the
Company during the policy period shall not exceed the amount stated in the Declarations
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as the aggregate”; i.e., $300,000. Again, the Goldston estate notes that this provision speaks
of “all claims” and does not discuss the “each claim” limit. The estate therefore contends that
these provisions, when read together, are ambiguous and could reasonably be read to indicate
that multiple, related claims which constitute a “single claim” can trigger the $300,000
“Aggregate” policy limit.
¶ 42 We find that the Goldston estate is attempting to create ambiguity where none exists. As
noted above, “[w]hen determining whether an ambiguity between the terms of an insurance
policy exists, the provisions should be read together and not separately. [Citation.] The
inquiry is whether the provision is subject to more than one reasonable interpretation, not
whether other possibilities can be suggested.” Triana, 398 Ill. App. 3d at 368. The $100,000
policy limit clearly applies to “each claim” and is stated in the singular. That limit is
expressly made “[s]ubject to” the provisions of the $300,000 “Aggregate” limit, which
speaks in the plural and therefore provides the appropriate policy limit for “all claims” during
the policy period when there is more than a single claim. In turn, the provision involving
“[m]ultiple insureds, claims and claimants” provides that multiple claims will nevertheless
be treated as a “single claim” where they are “related.”
¶ 43 Reading all these provision together, we agree with Continental that because the policy
indicates that related claims will be treated as a “single” claim, such related claims are
subject to the $100,000 policy limit for “Each Claim.” Indeed, if multiple claims that are
nevertheless “related” under the policy were to be considered separate claims capable of
triggering the “Aggregate” policy limit, there would simply be no reason for the policy to
include language that “all such related claims, whenever made,” will be considered a single
claim. We will not construe the Continental policy so as to render this language meaningless.
Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 371 (2007) (“Because the court must
assume that every provision was intended to serve a purpose, an insurance policy is to be
construed as a whole, giving effect to every provision [citation] ***.”).
¶ 44 3. Application of the Policy Language
¶ 45 Having determined that the circuit court properly found the relevant language in the
Continental policy to be unambiguous, we now turn to the issue of the proper application of
that policy language, i.e., did the circuit court correctly determine that all of the Hoffman
defendants’ alleged acts or omissions were so related that the claims against them should all
be treated as a single, related claim subject to the $100,000 “each claim” limit under the
policy? Here, coverage under the Continental policy is being sought for claims alleging
various acts or omissions allegedly committed by the Hoffman defendants with respect to
their representation of the estates.
¶ 46 As discussed above, the relevant policy language provides that claims will be considered
related only if they arise out of a single act or omission or “acts or omissions in the rendering
of legal services that are temporally, logically, or causally connected by any common fact,
circumstance, situation, transaction, event, advice or decision.” Continental asserts that all
of the Hoffman defendants’ alleged acts or omissions can be connected under this provision
by Ms. Stachura’s embezzlement scheme. Thus, two relevant questions are before this court:
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(1) were all of the alleged acts and omissions of the Hoffman defendants temporally,
logically, or causally connected by Ms. Stachura’s embezzlement of estate funds? and (2)
was Ms. Stachura’s embezzlement of estate funds a common fact, circumstance, situation,
transaction, event, advice or decision under the policy? If both of these questions can be
answered in the affirmative, then all of the claims against the Hoffman defendants are related
under the terms of the policy and the $100,000 “each claim” policy limit applies. We address
these questions in reverse order, as our analysis of the second question will aid in the
resolution of the first.
¶ 47 a. The Nature of Ms. Stachura’s Embezzlement
¶ 48 There is no dispute regarding the facts involving Ms. Stachura. In her notarized
statement, Ms. Stachura stated that she was a probate paralegal for the Hoffman defendants’
law firm and had been employed by the firm for over 25 years. Her duties included the
management of the firm’s probate estate files, which required a number of activities
“including but not limited to collecting assets, follow-up correspondence, keeping the
financial ledger sheet on the estate account, receiving and reviewing monthly bank
statements relating thereto and otherwise preparing general correspondence, etc. [sic] on the
file in the course of usual probate proceedings.” Ms. Stachura further admitted that while
engaged in the management of the firm’s probate estate files, she made out checks to herself
on the accounts of at least 15 different estates, including the Goldston, McAllister, and
Chaney estates.
¶ 49 These forgeries were concealed, at least for a time, by Ms. Stachura’s scheme of causing:
“the monthly bank statements as received to be destroyed so that [her] actions would not
appear when an attorney worked on a file. The ledger sheet in each file appeared correct
since [she] did not list the forged checks thereon and same would always reflect a balance
consistent with legitimate checks as shown.” Furthermore, Ms. Stachura indicated that “[n]o
other person in [her] office, the attorneys or [her] family, had any knowledge of [her]
criminal acts” and that she “used the money for gambling purposes or to cover forgeries on
estates which were closed and distributions made prior.” Ms. Stachura ultimately pled guilty
to 11 separate charges of theft, was sentenced to probation, and a judgment for restitution
was entered in favor of each of the 11 different estates involved in the criminal charges.
These included awards of restitution in favor of the McAllister and Chaney estates, as well
as the Rogers estate to which the Goldston estate was a beneficiary.
¶ 50 The question is, do these undisputed facts amount to “any common fact, circumstance,
situation, transaction, event, advice or decision” under the related acts or omissions provision
of the policy? As these terms are not further defined in the policy, we will give them their
“plain and ordinary meaning.” Triana, 398 Ill. App. 3d at 368. Of the many terms included
in this provision, those that seem most relevant to the issues here are “fact,” “circumstance,”
“situation,” and “decision.” A “fact” can be defined as “a thing done,” “an action in general,”
or a “wrong or unlawful deed.” Webster’s Third New International Dictionary 813 (1993).
A “circumstance” can be defined as “a condition, fact, or event accompanying, conditioning,
or determining another” or as “the sum of essential and environmental characteristics.” Id.
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at 410. In turn, a “situation” can be defined as a “combination of circumstances at a given
moment.” Id. at 2129. Lastly, a “decision” can be defined as “a course of action decided
upon.” Id. at 585.
¶ 51 While the Illinois Appellate Court has not considered this specific policy language, at
least one federal district court has done so with respect to similar language under similar
circumstances.
¶ 52 In Bryan Brothers, 704 F. Supp. 2d at 538-39, the court decided a declaratory judgment
action involving an accounting firm, Bryan Brothers, Inc., to which Continental had issued
a claims-made professional liability policy similar to the one at issue here. The accounting
firm sought coverage under the policy after a number of its clients filed suit to recover for
losses resulting from the embezzlement of funds from their accounts by the firm’s
bookkeeper, Ms. Whitworth. Id. To accomplish the fraud, Ms. Whitworth made out checks
drawn on client accounts payable to herself and others and manipulated the internal
bookkeeping records of the firm to conceal her theft. Id. at 539. The bookkeeper’s actions
had occurred both before and after the time the Continental policy was in effect, but were
only discovered during the policy’s effective period. Id. Prior to that time, no other
employees of the accounting firm “were aware of her activities nor did any other employees
participate in or authorize her actions.” Id. Continental denied coverage, asserting that
because the bookkeeper was an insured under the policy and because she obviously knew
about her actions before the policy took effect, the claims for those embezzlements occurring
before the policy period were barred by a “prior knowledge” exclusion in the policy. Id. at
541. The court agreed with Continental on this issue. Id.¶ 53 Of importance here, the court also had to address the fact that in the single instance of
the “Lansing” account, the bookkeeper did not begin to take funds from the account until
after the Continental policy was in effect. Id. at 542-43. Obviously, these acts could not be
barred on the basis that the bookkeeper had knowledge of these acts before the policy period
began.
¶ 54 Nevertheless, Continental asserted that the claims involving the Lansing account were
not covered by its policy because the prior knowledge provision excluded coverage unless
“ ‘prior to the effective date of this Policy, none of you had a basis to believe that any such
act or omission, or interrelated act or omission, might reasonably be expected to be the basis
of a claim.’ ” Id. at 543. In turn, the policy defined “ ‘interrelated acts or omissions’ as ‘all
acts or omissions in the rendering of professional services that are logically or causally
connected by any common fact, circumstance, situation, transaction, event, advice or
decision.’ ” (Emphasis added.) Id. Accordingly, if Whitworth’s knowledge of her prior
unauthorized withdrawals was knowledge of acts that were interrelated to her withdrawals
from the Lansing account during the policy period, then her knowledge of those prior acts
would exclude coverage under the prior knowledge provision. Id.¶ 55 The court found such an interrelationship, reasoning:
“[T]he Court must determine whether the Lansing withdrawal and the other
withdrawals are ‘logically or causally connected by any common fact, circumstance,
situation, transaction, event, advice or decision.’ Most obvious is that the Lansing
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withdrawals, like the prior unauthorized withdrawals, involved the same scheme to
defraud Bryan Brothers’ clients by the same person wherein Whitworth drafted
checks drawn on the client accounts and endorsed checks made payable to the clients.
[Citation.] Whitworth also used the same modus operandi in concealing her theft by
manipulating Bryan Brothers’ records. [Citation.] These common ties lead to the
inescapable conclusion that Whitworth’s thefts against Lansing are logically
connected to the prior thefts by common facts and circumstances. They are
‘interrelated acts’ under the policy for which there is no coverage.” (Emphasis
omitted.) Id.¶ 56 We concur with this reasoning and find that Ms. Stachura’s decision to intentionally
embezzle funds from the Hoffman defendants’ probate estate accounts falls squarely within
the plain and ordinary meaning of the relevant terms of the Continental policy at issue here.
Although the scheme involved the accounts of different estates, Ms. Stachura’s actions in
carrying out her embezzlement plan had “common ties” and involved the same “modus
operandi.” They were consistent in that she embezzled funds from only those accounts for
which she had full responsibility. She then concealed her forgeries with the common scheme
of destroying bank statements from each affected account and preparing false bookkeeping
reports for the Hoffman defendants. Some of her forgeries were also committed in order to
obtain the necessary funds to conceal prior forgeries on other estate accounts. Ms. Stachura’s
embezzlement scheme continued until shortly before her actions were discovered when, as
she indicated in her statement, “the lack of other funds being available to cover [her] deeds
occasioned [her] downfall.”
¶ 57 Overall, Ms. Stachura’s embezzlement scheme can be viewed as “an action in general”
or a “wrong or unlawful deed” (fact). It might also be described as a “sum of essential and
environmental characteristics” (circumstance) or a “combination of circumstances”
(situation). Her overall scheme of embezzling funds and the methods she employed to
accomplish and conceal her embezzlement can also be viewed as “a course of action decided
upon” (decision). While the Hoffman defendants and the Goldston estate assert that each of
Ms. Stachura’s acts of forgery or embezzlement should be viewed separately and should not
be considered together, the plain and ordinary meaning of the terms in the policy indicate
otherwise. Ms. Stachura’s scheme to embezzle estate funds is a common fact, circumstance,
situation, or decision under the policy.
¶ 58 b. Temporal, Logical, or Causal Connection
¶ 59 We now consider the alleged acts and omissions of the Hoffman defendants, and the
issue of whether or not they are temporally, logically, or causally connected by a common
fact, circumstance, situation, or decision; i.e., are those alleged acts and omissions connected
under this policy language by Ms. Stachura’s scheme to embezzle estate funds?
¶ 60 Again, we are faced with the task of interpreting language–“temporally, logically, or
causally connected”–that is not further defined in the policy. And again, we must first turn
to the plain and ordinary meaning of those words. “Temporally” can be defined as “with
regard to time.” Webster’s Third New International Dictionary 2353 (1993). “Logically” can
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be defined as “of or relating to logic,” which in turn is defined as the “interrelation or
connection or sequence (as of facts or events) especially when seen by rational analysis as
inevitable, necessary, or predictable.” Id. at 1330. Finally, “casually” is defined as
“expressing or indicating cause,” while a “cause” is defined as “a person, thing, fact, or
condition that brings about an effect” or “the necessary antecedent of an effect.” Id. at 355-
56.
¶ 61 It is clear that all of the various assertions that the Hoffman defendants somehow failed
to manage litigation involving the various estates or improperly supervised the actions of Ms.
Stachura–however specifically pled–are allegations of acts and omissions logically and
casually connected by the embezzlement scheme. Ms. Stachura’s ability to conduct and
conceal her embezzlement scheme can certainly be seen as a logically “predictable” event,
in light of the Hoffman defendants’ alleged failure to manage accounts containing hundreds
of thousands of dollars or to properly supervise the single employee in charge of those
accounts. Moreover, the fact that such allegedly lax management and oversight provided Ms.
Stachura with an opportunity to engage in the embezzlement scheme can certainly be viewed
as a “condition that brings about an effect” (causally).
¶ 62 Nevertheless, there remain those allegations which the Goldston estate contends are not
directly related to the Hoffman defendants’ lax management or supervision. Specifically, the
Goldston estate has additionally asserted in its complaint that the Hoffman defendants
improperly:
“c. Requested and permitted beneficiaries of the Rogers Estate and/or Goldston
Estate to execute acknowledgments that they had been paid funds owed to them from
the Rogers Estate and/or Goldston Estate, when in fact the funds had not been paid;
d. Were involved in the preparation and presentation to the Court of
documentation and representations telling the Court that funds owed to the Rogers
Estate, the Goldston Estate and their beneficiaries had been paid, when in fact the
funds had not been paid;
e. Paid Malcolm [the estate administrator] first from the Goldston Estate
proceeds, or assets being held in trust for the Goldston Estate, to the exclusion of the
other beneficiaries, who have not been paid the amounts due them from the assets of
the Goldston Estate, or assets being held in trust for the benefit of the Goldston
Estate;
***
l. Failed to advise the Goldston Estate or the Rogers Estate and/or beneficiaries
the Defendants had a conflict of interest in representing said Estates and/or their
beneficiaries;
m. Failed to advise the Goldston Estate and/or beneficiaries that they should
obtain substitute counsel and/or a new Administrator without any conflict of
interest[.]”
¶ 63 We find that these allegations are also logically and causally connected by Ms. Stachura’s
actions so as to be considered a related claim under the plain language of the Continental
policy.
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¶ 64 Initially, we note that Ms. Stachura’s embezzlement scheme was a “necessary
antecedent” (causally) to each of the Goldston estate’s additional claims. It is apparent that
any mistakes in the documents prepared by the Hoffman defendants were caused by the fact
the Ms. Stachura was, at least for a time, successfully concealing her embezzlement of funds
from estate accounts. Similarly, any prior payments of estate funds to Malcolm Goldston or
any conflict of interest resulting from the Hoffman defendants’ representation of both the
Goldston estate and the Rogers estate only arises as a concern because the full assets of those
estates were not properly paid to estate beneficiaries. The shortfall in estate funds is a direct
result of Ms. Stachura’s embezzlement scheme.
¶ 65 Additionally, the Goldston estate does not allege in its complaint that it was separately
harmed by any of these additional acts or omissions on the part of the Hoffman defendants.
Instead, the complaint only asserts that “damages and a loss of funds rightfully due to the
Goldston Estate” were the proximate result of all of the alleged acts and omissions of the
Hoffman defendants. The complaint then asks for recovery of “all funds wrongfully taken
or withheld from the Goldston Estate.” Thus, all of the Goldston estate’s allegations are
aimed at recovering those funds embezzled by Ms. Stachura. See Berry & Murphy, 586 F.3d
at 813 (“Where there is one injury flowing from multiple acts of malpractice, it seems logical
to connect those multiple acts of malpractice as related.’ ”).
¶ 66 In ruling on this issue, we reject the contention that a different conclusion is mandated
by this court’s decision in Continental Casualty Co. v. Grossmann, 271 Ill. App. 3d 206(1995). In that case, this court addressed the similar question of whether a number of claims
against an insured attorney were subject to a professional liability policy’s $100,000 per-
claim or $300,000 aggregate limit. Id. at 207. Similarly to the Continental policy here, the
insurance policy at issue in Grossman provided that the $100,000 limit would apply to claims
arising out of “ ‘the same or related wrongful acts.’ ” Id. at 208. This court ultimately found
that because the underlying claims were pled in such a manner that they might not ultimately
prove to be “related” following trial, it was improper for the circuit court in the declaratory
judgment action to have found the $100,000 policy limit necessarily applied to those claims.
Id. at 211-12.
¶ 67 We find Grossman to be distinguishable. First, the policy language there only provided
that the $100,000 limit would apply to claims arising out of “ ‘the same or related wrongful
acts.’ ” Id. at 208. Unlike the policy here, it did not contain any additional language further
providing exactly how claims were or were not related. Furthermore, in Grossman, 271 Ill.
App. 3d at 211, this court specifically found that the insured’s “several distinct instances of
malpractice led separately to the underlying plaintiffs’ losses” and that “each underlying
plaintiff may be able to recover on the basis of acts entirely unrelated to grounds on which
the others are able to recover.” Id. at 211, 212. As discussed above, in this case all of the
estate claimants’ allegations of wrongdoing and all of their allegations of damages are
logically and causally connected by the common fact, circumstance, situation, or decision
comprised of Ms. Stachura’s scheme to embezzle estate funds.
¶ 68 We recognize that the language defining related claims in Continental’s policy is broad
and that, in some other case, claims might arise that arguably would be too tangentially
connected to fall under these provisions. However, we need not dwell upon or define the
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outer limits of the policy’s “Related acts and omissions” and “Related claims” provisions
to resolve the issues before this court. We simply find that based upon the specific language
of the Continental policy at issue here and the specific facts of this case: (1) Ms. Stachura’s
scheme to embezzle estate funds is a common fact, circumstance, situation, or decision; and
(2) all of the allegations against the Hoffman defendants are logically and causally connected
by Ms. Stachura’s scheme to embezzle. Therefore, the circuit court properly found that all
of the claims against the Hoffman defendants were related, as defined under the relevant
policy language, and as such the $100,000 “each claim” policy limit contained in
Continental’s policy applied in this case.
¶ 69 4. Remaining Issues
¶ 70 In so ruling, we reject a number of additional arguments raised by the Hoffman
defendants and the Goldston estate. We will briefly address each of these assertions.
¶ 71 First, we reject the assertion that this matter requires the application of the “cause theory”
adopted by our supreme court in cases such as Nicor, Inc. v. Associated Electric & Gas
Insurance Services Ltd., 223 Ill. 2d 407, 418-19 (2006), and Addison Insurance Co. v. Fay,
232 Ill. 2d 446, 456-57 (2009). As noted in those cases, under this theory courts will look to
the cause or causes of damages in order to determine the number of “occurrences” under an
insurance policy. Nicor, 223 Ill. 2d at 418; Fay, 232 Ill. 2d at 457.
¶ 72 We do not find the “cause theory” to be relevant to our discussion, as the Continental
policy at issue here does not provide coverage for “occurrences” but rather for “acts or
omissions in the rendering of legal services.” Moreover, the cause theory is applied because
“occurrence” based policies often do not provide any indication as to how to determine the
number of occurrences in a given situation. Nicor, 223 Ill. 2d at 418 (“the terms of the
insurance policy are not always sufficient, standing alone, to permit a definitive
determination as to whether a particular case involves one occurrence or many”); Fay, 232
Ill. 2d at 455 (applying cause theory “because the policy itself does not indicate when an
injury will be treated as a separate occurrence”). As discussed at length above, the policy at
issue here contains explicit provisions related to the determination of whether various acts
or omissions constitute “related claims.”
¶ 73 Second, we reject the Goldston estate’s assertion that section II. D. of the Continental
policy–involving “[m]ultiple insureds, claims and claimants”–is not applicable here. As
noted above, this provision provides that “[i]f related claims are subsequently made against
the Insured and reported to the Company, all such related claims, whenever made, shall
be considered a single claim first made and reported to the Company within the policy
period in which the earliest of the related claims was first made and reported to the
Company.” The Goldston estate suggests that this provision does not apply to “subsequently
made” related claims made during the same policy period, but only to claims made during
other policy periods.
¶ 74 We disagree. First, this argument is waived because it was first raised in the Goldston
estate’s reply brief. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (points not argued in opening
brief are waived and shall not be raised in the reply brief, in oral argument, or on petition for
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rehearing). Waiver aside, this provision clearly applies to related claims, “whenever made,”
and is not limited in the manner suggested. Indeed, just such an argument involving this
exact policy language has been previously rejected, with the court finding:
“The language in section II. D. of the Policy, describing the limits of liability in
the event of multiple claims or claimants, does not suggest that ‘related claims’ are
exclusively those related to claims made or reported in preceding policy years.
Nothing in the language suggests that ‘related claims’ cannot be made in the same
policy year as the first-made claim, or even in immediate sequence with the first-
made claim, as in the case of multiple claims in a single lawsuit. The Clients’
proposed construction of the Policy invites the Court to torture the Policy language
to create ambiguity ***.” (Emphasis omitted.) Continental Casualty Co. v. Orr, No.
8:07CV292, 2008 WL 2704236, at *6 (D. Neb. July 3, 2008).
¶ 75 We find this reasoning persuasive and similarly reject the assertion that this provision
does not apply to related claims that are made during a single policy period.
¶ 76 Finally, we reject the argument that limiting coverage here to the $100,000 “each claim”
limit fails to comport with the “reasonable expectations” of the Hoffman defendants. Under
the reasonable expectations doctrine, “ ‘[t]he objectively reasonable expectation of all
applicants and intended beneficiaries regarding the terms of insurance contracts will be
honored even though painstaking study of the policy provisions would have negated those
expectations.’ ” Smagala v. Owen, 307 Ill. App. 3d 213, 219 (1999) (quoting Robert E.
Keeton, Basic Text on Insurance Law § 6.3, at 351 (1971)).
¶ 77 A number of cases have specifically rejected the notion that the reasonable expectations
doctrine applies in Illinois. See, e.g., El Rincon Supportive Services Organization, Inc. v.
First Nonprofit Mutual Insurance Co., 346 Ill. App. 3d 96, 106 (2004); Smagala, 307 Ill.
App. 3d at 219; Zurich Insurance Co. v. Raymark Industries, Inc., 145 Ill. App. 3d 175, 192
(1986). Nevertheless, the Goldston estate cites to two cases that appear to recognize the
applicability of the doctrine. Whitt v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 658,
662 (2000) (“Policy language must be read with reference to the facts at hand and in
conjunction with the insured’s reasonable expectations and the coverage intended by the
policy.”); Crawford Laboratories, Inc. v. St. Paul Insurance Co. of Illinois, 306 Ill. App. 3d
538, 544 (1999) (public policy requires that insurance contracts be construed in accord with
the objectively reasonable expectations of the insured).
¶ 78 Even if the status of the reasonable expectations doctrine in Illinois is an open question,
we decline to apply it here. “ ‘The parties to an insurance contract may incorporate in it such
provisions, not in violation of law, as they choose; and it is the duty of the courts to construe
and enforce the contract as made. We are not warranted, under the cloak of construction, in
making a new contract for the parties.’ ” Rich, 226 Ill. 2d at 381 (quoting Pioneer Life
Insurance Co. v. Alliance Life Insurance Co., 374 Ill. 576, 590 (1940)). In this case, the plain
and unambiguous language of the policy provides that the claims at issue are related and are
subject to the single, $100,000 policy limit, and we do not believe that the policy language
can reasonably be read otherwise. As our supreme court further stated in Rich, 226 Ill. 2d at
381, “[r]eading the policy as a whole, the average policyholder could not reasonably reach
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a conclusion of coverage in these particular circumstances in light of the policy limitation.
Applying [the Goldston estate’s] contention would render the policy limitation meaningless,
and read into the insurance contract something that is not there.”
¶ 79 III. CONCLUSION
¶ 80 For the foregoing reasons, the judgment of the circuit court granting Continental’s motion
for summary judgment and denying the motion for summary judgment of the Hoffman
defendants is affirmed.
¶ 81 Affirmed.
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