American Zurich Insurance Co. v. Wilcox and Christopoulos, L.L.C.

ILLINOIS OFFICIAL REPORTS
Appellate Court
American Zurich Insurance Co. v. Wilcox & Christopoulos, L.L.C.,
2013 IL App (1st) 120402
Appellate Court AMERICAN ZURICH INSURANCE COMPANY, Plaintiff-Appellant,
Caption v. WILCOX AND CHRISTOPOULOS, L.L.C., n/k/a The Christopoulos
Law Firm, Defendant-Appellee (Mark Wilcox and Michael Demnicki,
Defendants).
District & No. First District, Fourth Division
Docket No. 1-12-0402
Rule 23 Order filed October 25, 2012
Rule 23 Order
withdrawn January 10, 2013
Opinion filed January 17, 2013
Held The provision of the legal malpractice policy plaintiff issued to defendant
(Note: This syllabus and defendant’s law firm excluding coverage for alleged acts or
constitutes no part of omissions by any insured for any business in which any insured has a
the opinion of the court controlling interest excluded coverage for both defendant and his firm in
but has been prepared an underlying suit alleging that defendant and his firm engaged in a
by the Reporter of conspiracy to operate a lounge illegally, since defendant acted on behalf
Decisions for the of a company he owned that was engaged in obtaining liquor licenses and
convenience of the the exclusion applied to all insureds based on the conduct or interest of
reader.)
any one insured.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-10169; the
Review Hon. Sophia H. Hall, Judge, presiding.
Judgment Reversed.
Counsel on Jeffrey A. Goldwater, Michelle M. Bracke, and Kelly M. Ognibene, all
Appeal of Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appellant.
Larry S. Kowalczyk and Michele T. Oshman, both Querry & Harrow,
Ltd., of Chicago, for appellee.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Presiding Justice Lavin and Justice Epstein concurred in the judgment
and opinion.
OPINION
¶1 This cause arises out of a declaratory judgment action (735 ILCS 5/2-701 (West 2002))
filed by the plaintiff-appellant, American Zurich Insurance Co. (American Zurich), against
the defendant-appellee, the law firm of Wilcox & Christopoulos, L.L.C., (the Wilcox law
firm) and the defendant, Mark Wilcox (Wilcox), wherein American Zurich sought a
declaration that it was not obligated to defend Wilcox or the Wilcox law firm in an
underlying claim for civil conspiracy brought by Michael Demnicki (Demnicki) against, inter
alia, Wilcox and the firm. The underlying claim alleges inter alia, that Wilcox and the
Wilcox law firm were involved in a civil conspiracy to open and operate a restaurant/lounge
by illegal means. Because at all relevant times the Wilcox law firm had a lawyers
professional liability insurance policy with American Zurich, it tendered the defense of the
underlying claim to American Zurich. However, American Zurich denied coverage and
refused to defend or indemnify either Wilcox or the law firm against any action by Demnicki.
¶2 After discovery, the parties filed cross-motions for summary judgment seeking a
declaration regarding American Zurich’s duty to defend Wilcox and the firm. The circuit
court held that American Zurich had a duty to defend the Wilcox law firm but no duty to
defend Wilcox individually. The court therefore granted American Zurich’s motion for
summary judgement as to Wilcox but denied the motion as to the Wilcox firm.
¶3 American Zurich now appeals that portion of the circuit court’s order denying the motion
for summary judgement as to the Wilcox law firm. American Zurich contends that the circuit
court erred when it found that exclusion E of American Zurich’s policy to the Wilcox law
firm, precluding coverage for any claim arising out of “the alleged acts or omissions of any
insured *** for a business enterprise *** in which any insured has a controlling interest,” did
not apply to the law firm, so as to oblige American Zurich to defend the firm against the
Demnicki suit. For the reasons that follow, we reverse.
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¶4 I. BACKGROUND
¶5 Since the record before us is voluminous, we set forth only the relevant and undisputed
facts.
¶6 A. The Underlying Complaint
¶7 On November 16, 20091, Demnicki filed an action for civil conspiracy in the circuit court
against numerous parties, including, relevant for this appeal, Wilcox and the Wilcox law
firm. The other parties named as defendants in the complaint include: (1) Jason Hyatt and
(2) Matt Stoen, owners of the now-defunct Panacea Partners, LLC (Panacea Partners), which
hoped to open and operate a restaurant/lounge (De La Costa) in Chicago; (3) Anthony Frink
and Mark Nora, attorneys at Holland & Knight, LLP (Holland & Knight), who, at all relevant
times, served as counsel for Panacea Partners; (4) the firm of Holland & Knight, which
performed legal services for Panacea Partners, including drafting agreements and documents
related to the ownership of Panacea Partners; (5) Liquor License Solutions, LLC (Liquor
License Solutions), an Illinois limited liability company that is owned and controlled by
Wilcox and Jennifer Walsh, and which was hired by Panacea Partners to obtain a liquor
license for the De La Costa restaurant/lounge from the City of Chicago and the State of
Illinois; and (6) Jennifer Walsh, a member and manager of Liquor License Solutions.
¶8 In his complaint, Demnicki alleged that all of the defendants, including Wilcox and the
Wilcox law firm were involved in a civil conspiracy to open and operate the De La Costa
restaurant/lounge by illegal means, i.e., by committing perjury, making fraudulent
misrepresentations, breaching their fiduciary duties, and violating the Illinois Limited
Liability Company Act (805 ILCS 180/1-1 et seq. (West 2008)), the Illinois Liquor Control
Act of 1934 (235 ILCS 5/1-1 et seq. (West 2002)), and the City of Chicago Liquor License
Ordinance (Chicago Municipal Code § 4-60 (2012)), by misrepresenting and concealing the
ownership and management of Panacea Partners from the City of Chicago Liquor License
Commission, the State of Illinois Liquor Control Commission and prospective investors
(including Demnicki) so as to enable the restaurant/lounge to obtain a liquor license and open
for business.
¶9 The complaint alleges that in January 2005, Holland & Knight was first hired by Panacea
Partners to provide consulting services on the proposed De La Costa restaurant/lounge. In
addition, in early 2006, Wilcox and Liquor License Solutions2 were retained by Panacea
Partners to obtain a liquor license for the De La Costa restaurant/lounge, and Stoen directed
Wilcox to work together with Holland & Knight on this project. In turn, according to the
complaint, Wilcox utilized Liquor License Solutions and Walsh to help him draft liquor
1
That complaint was amended twice, with the second and final amended complaint filed on
September 1, 2010.
2
According to the complaint, at all relevant times, Wilcox represented himself, his law firm
and his company Liquor License Solutions as being experts in obtaining liquor licenses from the
State of Illinois and the City of Chicago, to his clients and customers.
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license applications for Panacea Partners from the City of Chicago and the State of Illinois.
The complaint alleges that at all relevant times Wilcox acted both individually and in the
scope of his employment in the Wilcox law firm and in the scope of his employment with
Liquor License Solutions.
¶ 10 According to the underlying complaint, Wilcox and Walsh advised Stoen that he would
have to undergo the City of Chicago’s background check as part of the liquor license
application process and that if he did not pass the requirements, Panacea Partners’ liquor
license application, which was essential to their business plan and the viability of the De La
Costa restaurant, would be denied. The complaint further alleges that Wilcox and Walsh
determined that Panacea Partners would not be able to obtain a liquor license if Stoen’s
ownership in the restaurant/lounge was disclosed to the authorities. They therefore decided
to take Stoen’s name off all relevant documents, for the purpose of obtaining a liquor license.
¶ 11 The complaint alleges that in this vein all of the defendants agreed together to prepare
various fraudulent corporate documents relating to Panacea Partners and its financing.
Specifically, the complaint alleges that the defendants agreed: (1) to create false articles of
amendment for Panacea Partners, changing Panacea Partners from a manager-managed
limited liability company to a member-managed limited liability company, without member
approval, naming Hyatt as its sole member; (2) to create a false operating agreement for
Panacea Partners, without member approval, to conceal Stoen and the other
investor/members’ membership and management of Panacea Partners from the licensing
authorities and any new investors; (3) to use these false documents, together with a false
financial disclosure form depicting that all of Panacea Partners’ financing came from Hyatt,
as part of Panacea Partners’ liquor license applications to the City of Chicago and the Illinois
Liquor Control Commission; (4) to use the false articles of amendment and the false
operating agreement to solicit more investors; and (5) to conceal all of this illegal conduct
from other investors/members and any new investors in Panacea Partners.
¶ 12 With respect to Wilcox and the Wilcox law firm, the complaint specifically alleges that
on April 6, 2006, Walsh of Liquor License Solutions sent an email to Nora of Holland &
Knight, stating that the operating agreement of Panacea Partners needed to be amended to
reflect a change in members, thereby concealing Stoen’s involvement. It is further alleged
that an employee of Liquor License Solutions, Barbara Mateblweski, emailed Nora to
provide him with an outline of the steps needed to conceal Stoen’s involvement in Panacea
Partners. Wilcox was copied on that email and followed up with Nora the next day to
confirm Nora’s receipt and understanding of the email. A series of emails between Walsh,
Mateblweski, Stoen and Nora followed throughout April, all discussing the steps that needed
to be taken to remove Stoen from the operating agreement and reminding of the impending
May 9 and 14 deadlines for submitting the application for a liquor license. According to the
complaint, at all times, Wilcox had access to and reviewed these Liquor License Solutions
emails. The complaint further alleges that on May 10, 2006, Wilcox prepared an amended
operating agreement for Panacea Partners that was backdated to April 2, 2006, and removed
Stoen. Wilcox, Walsh, Liquor License Solutions and Mateblweski then provided this false
document to, inter alia, the City of Chicago, the Illinois Liquor Control Commission and
Demnicki.
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¶ 13 In addition to the civil conspiracy claim, the complaint also alleges that Wilcox and the
Wilcox law firm committed the tort of fraudulent misrepresentation by concealing the
aforementioned information from Demnicki and thereby inducing him to invest additional
funds into Panacea Partners, which he would not have done had he known of their
misrepresentations. Accordingly, the complaint requests judgment in Demnicki’s favor and
against Wilcox and the Wilcox law firm, in the amount of $1 million, in addition to $3.5
million in punitive damages.
¶ 14 B. The Declaratory Judgment Action
¶ 15 At the time of the alleged civil conspiracy, the Wilcox law firm was covered by a lawyers
professional liability insurance policy with American Zurich. That policy was issued by
American Zurich to the Wilcox law firm for the period of February 26, 2009, to February 26,
2010. The policy contained general professional liability coverage with liability limits of $2
million per each claim and $2 million in the aggregate, in excess of a $5,000 deductible. The
policy lists the Wilcox law firm as the “named insured.” The application for the policy,
however, includes a list of attorneys working for the firm, including, inter alia, Wilcox and
Dimitrios Christopoulos.
¶ 16 After Demnicki filed his claim against Wilcox and the Wilcox law firm, the law firm
attempted to tender the defense of the case to its insurer, American Zurich. However,
American Zurich refused, and instead on March 11, 2010,3 filed a declaratory judgment
action in the circuit court, seeking that the court declare that it owed no duty to defend either
Wilcox or the Wilcox law firm in the Demnicki claim.
¶ 17 In the complaint for declaratory judgment, American Zurich alleged that: (1) the claim
did not come within American Zurich policy’s insuring agreement; (2) that Wilcox was not
an insured and that (3) several exclusions in the policy (including, inter alia, exclusions D
and E) precluded coverage. In support of its contentions, American Zurich attached a copy
of the insurance policy issued to the Wilcox law firm. That policy provides the following
relevant coverage grant:
“I. INSURING AGREEMENT
A. COVERAGE
The Company will pay on behalf of an Insured, subject to the limit of liability, all
amounts in excess of the deductible shown in the Declarations that an Insured becomes
legally obligated to pay as Damages and Claim Expenses because of a Claim that is
both made and reported to the Company during the Policy Period or any extended to
reporting period based on an act or omission in the Insured’s rendering or failing to
render Legal Services for others.”
¶ 18 In addition, section III of the policy provides an exhaustive list of exclusions, several of
which, relevant to this appeal, preclude coverage for the conduct of the insured relative to
3
That declaratory judgment complaint was amended twice, first on April 29, 2010, and then
on September 29, 2010.
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outside business enterprises other than the insured law firm. Section III provides in pertinent
part:
“This policy shall not apply to any Claim based upon or arising out of, in whole or
in part:
***
D. the Insured’s capacity or status as:
1. an officer, director, partner, trustee, shareholder, manager or employee of a
business enterprise, charitable organization or pension, welfare profit sharing, mutual
or investment fund or trust;
***
E. The alleged acts or omissions by any Insured, with or without compensation, for
any business enterprise, whether for profit or not-for-profit, in which any Insured has
a Controlling Interest.”
¶ 19 Furthermore, section VI of the policy provides definitions for several relevant terms.
First, the policy defines an “Insured” as:
“1. [the] Named Insured, which is the entity shown in Item 2 of the Declarations;
2. any lawyer or professional corporation listed in the application on the day the
Policy Period incepts until such time as the lawyer or professional corporation ceases
to be a member of the Named Insured subject to section 4 below.
***
3. any lawyer or professional corporation who is a former partner, officer, director,
stockholder or shareholder or employee of the Named Insured or Predecessor Firm,
but only in rendering or failing to render Legal Services on behalf of the Named
Insured or Predecessor Firm;”
The policy also defines “Legal Services” as:
“services performed by an Insured as a licensed lawyer in good standing, arbitrator,
mediator, title agent, notary public, administrator, conservator, receiver, executor,
guardian, trustee or in any other fiduciary capacity but only where the act or omission
was in the rendition of services ordinarily performed as a lawyer. Legal Services shall
not be extended to include services of a real estate agent or broker or as an insurance
agent or broker.”
Finally, the policy defines “Controlling Interest” as:
“the right of an Insured or a member of an Insured’s Immediate Family, directly or
indirectly, to:
1. own 10% or more of an interest in an entity; or
2. vote 10% or more of the issued and outstanding voting stock in an incorporated
entity; or
3. elect 10% or more of the directors of an incorporated entity; or
4. receive 10% or more of the profits of an unincorporated entity; or
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5. act as general partner of a limited liability partnership, managing general partner
of a general partnership, or comparable position in any other business enterprise.”
¶ 20 Following protracted discovery, on June 21, 2011, Wilcox and the Wilcox law firm
moved for judgment on the pleadings. On July 15, 2011, American Zurich filed its response
and a cross-motion for summary judgment asserting that the Demnicki claim was not covered
under the American Zurich policy. On September 23, 2011, the circuit court granted
Wilcox’s and the law firm’s motion for judgment on the pleadings, solely with respect to the
scope of coverage. In doing so, the circuit court found that the allegations in the Demnicki
claim came within the insuring agreement of the American Zurich policy, i.e., that the
allegations in that underlying complaint involved business activities performed by the law
firm, which required specialized knowledge and skill and fell squarely within the coverage
of the legal malpractice policy that the law firm had purchased from American Zurich.4 The
circuit court further instructed American Zurich to file a second motion for summary
judgment solely as to the American Zurich policy exclusions.
¶ 21 On October 13, 2011, American Zurich filed a motion for summary judgment asserting
that it was not required to defend Wilcox or the Wilcox law firm under exclusions D and E
of the American Zurich policy. With respect to exclusion D, American Zurich contended that
the Demnicki claim was based upon and arose out of the insured’s capacity or status as an
officer, director, partner shareholder and/or manager of a business enterprise, other than the
Wilcox law firm, namely, Liquor License Solutions, in which Wilcox had a one-third equity
interest, so as to exempt the Demnicki claim from coverage under the policy. With respect
to exclusion E, American Zurich argued that the Demnicki claim was not covered under the
policy because it was based upon and/or arose out of the alleged conduct of Wilcox and the
Wilcox law firm for a business enterprise in which they had a controlling interest.
Accordingly, American Zurich sought a declaration that under the plain language of the
policy it was not required to defend either Wilcox or the law firm.
¶ 22 Wilcox and the Wilcox law firm filed separate responses to American Zurich’s motion
for summary judgement. In his response, Wilcox argued that exclusions E and D did not
apply to him so as to preclude coverage because the underlying law suit was based upon
alleged acts he had committed for Panacea Partners and not, as argued by American Zurich,
for Liquor License Solutions, the company he admitted he managed and in which he had a
controlling interest. The Wilcox law firm adopted Wilcox’s argument with respect to
exclusion E, contending that since Wilcox acted solely for Panacea Partners, exclusion E did
not apply to the law firm as well.5 In addition, the law firm contended that exclusion D did
not apply to preclude coverage of the law firm because the law firm was not an officer,
4
American Zurich does not appeal this ruling.
5
In the alternative, the Wilcox law firm argued that if the court were to find that Wilcox
acted for Liquor License Solutions and not Panacea Partners, it should find that the term “for” used
in exclusion E (“the alleged acts or omissions by any Insured *** for any business enterprise”
(emphasis added)) is at best ambiguous so as to require construction against American Zurich as the
drafter of the policy.
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director, partner, trustee, shareholder, manager or employee of Liquor License Solutions, the
company.
¶ 23 On January 13, 2011, the circuit court issued a decision and order granting American
Zurich’s motion for summary judgment as to Wilcox but denying it as to the Wilcox law
firm. In doing so, the circuit court found that exclusions D and E both applied to Wilcox
because the allegations in the underlying complaint established that Demnicki’s claim arose,
at least in part, from Wilcox’s acts “for” Liquor License Solutions, in which Wilcox had a
“controlling interest,” and because Wilcox’s actions arose from his capacity as a principal
in that company. In that respect, the court noted, among other things, that the underlying
complaint specifically alleged that Wilcox acted on behalf of Liquor License Solutions in
performing the tasks to obtain a liquor licence for Panacea Partners. In particular, the court
found that Wilcox regularly reviewed emails sent by Liquor License Solution employees and
was specifically copied on an email sent by employee Mateblweski to Nora of Holland &
Knight regarding steps that needed to be taken to remove Stoen from the relevant corporate
documents so as to obtain a liquor license for Panacea Partners. In addition, the court noted
that “Wilcox amended the operating agreement for Panacea Partners as a last-minute task
that needed to be completed in order to submit the liquor license application, which was
being handled by Liquor License Solutions, by the official deadline.”
¶ 24 With respect to the Wilcox law firm, however, the court found that neither exclusion
applied because American Zurich failed to “identify any facts alleged in the underlying
complaint” that would bring the law firm within those exclusions. According to the circuit
court, there were no allegations that the law firm itself had a “controlling interest” in Liquor
License Solutions or that it acted in any capacity for that company.
¶ 25 Accordingly, the circuit court concluded that while American Zurich had no duty to
defend Wilcox, it was obligated to defend the Wilcox law firm against the Demnicki law
suit. American Zurich now appeals, solely challenging the circuit court’s decision as to the
applicability of exclusion E to the Wilcox law firm.
¶ 26 II. ANALYSIS
¶ 27 We initially begin by setting forth the appropriate standard of review. It is well
established that “[t]he construction of an insurance policy and a determination of the rights
and obligations thereunder are questions of law for the court and appropriate subjects for
disposition by summary judgment.” Konami (America), Inc. v. Hartford Insurance Co. of
Illinois, 326 Ill. App. 3d 874, 877 (2002). Summary judgment, however, is a drastic measure
of disposing litigation and should be granted only when the movant’s right to judgment is
clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.
2d 90, 102 (1992). Summary judgment is appropriate “if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
735 ILCS 5/2-1005(c) (West 2004); see also Fidelity National Title Insurance Co. of New
York v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 212 (2007) (citing Home
Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004)); see also Virginia
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Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). Where cross-
motions for summary judgment are filed in an insurance coverage case, the parties
acknowledge that no material questions of fact exist and only the issue of law regarding the
construction of an insurance policy is present. American Family Mutual Insurance Co. v.
Fisher Development, Inc., 391 Ill. App. 3d 521, 525 (2009) (citing Liberty Mutual Fire
Insurance Co. v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 335, 338-39
(2005)). We review the circuit court’s decision to grant or deny such a motion de novo.
Virginia Surety Co., 224 Ill. 2d at 556.
¶ 28 It is well settled that in order to determine whether an insurer has a duty to defend an
action against the insured, a reviewing court must compare the allegations of the underlying
complaint to the relevant portions of the insurance policy. Outboard Marine Corp., 154 Ill.
2d at 108; see also Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 438
(1994); Viking Construction Management, Inc. v. Liberty Mutual Insurance Co., 358 Ill.
App. 3d 34, 41 (2005) (“The duty of an insurer to defend an insured is determined by the
allegations of the underlying complaint.” (citing Lyons v. State Farm Fire & Casualty Co.,
349 Ill. App. 3d 404, 406 (2004))). If the underlying complaint alleges facts that fall “within
or potentially within” the coverage of the policy, the insurer is obligated to defend its insured
even if the allegations are “groundless, false, or fraudulent.” (Emphasis in original.) United
States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991); see also
Lyons, 349 Ill. App. 3d at 406 (“A duty to defend arises if the complaint’s allegations fall
within or potentially within the coverage provisions of the policy.”). In other words, an
insurer may not justifiably refuse to defend an action against the insured “unless it is clear
from the face of the underlying complaint[ ] that the allegations fail to state facts which bring
the case within, or potentially within, the policy’s coverage.” (Emphasis in original.) Wilkin
Insulation Co., 144 Ill. 2d at 73; see also Aetna Casualty & Surety Co. v. Prestige Casualty
Co., 195 Ill. App. 3d 660, 664 (1990) (“Unless the complaint, on its face, clearly alleges facts
which, if true, would exclude coverage, the potentiality of coverage is present and the insurer
has a duty to defend.”). Moreover, if the underlying complaint alleges several theories of
recovery against the insured, the duty to defend arises even if only one such theory is within
the potential coverage of the policy. Wilkin Insulation Co., 144 Ill. 2d at 73; see also
American Country Insurance Co. v. James McHugh Construction Co., 344 Ill. App. 3d 960,
975 (2003) (“ ‘the insurer has the duty to defend unless the allegations of the underlying
complaint demonstrate that the plaintiff in the underlying suit will not be able to prove the
insured liable, under any theory supported by the complaint, without also proving facts that
show the loss falls outside the coverage of the insurance policy. [Citations.] The insurer may
simply refuse to defend only if the allegations of the underlying complaint preclude any
possibility of coverage.’ [Citation.]”). Accordingly, the threshold that an underlying
complaint must satisfy to present a claim of potential coverage is low, and for coverage to
exist, the complaint need only present a possibility of recovery, not a probability of one. See
Bituminous Casualty Corp. v. Gust K. Newberg Construction Co., 218 Ill. App. 3d 956, 960
(1991); see also Lyons, 349 Ill. App. 3d at 407.
¶ 29 In determining whether the allegations in the underlying complaint meet that threshold
requirement, both the underlying complaint and the insurance policy must be liberally
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construed in favor of the insured. Wilkin Insulation Co., 144 Ill. 2d at 73; see also Lyons, 349
Ill. App. 3d at 407. Where the words in the policy are clear and unambiguous, “a court must
afford them their plain, ordinary, and popular meaning.” (Emphasis in original.) Outboard
Marine Corp., 154 Ill. 2d at 108; see also Travelers Insurance Co. v. Eljer Manufacturing,
Inc., 197 Ill. 2d 278, 292-93 (2001). However, if the words in the policy are susceptible to
more than one reasonable interpretation, they will be considered ambiguous and will be
strictly construed in favor of the insured and against the insurer who drafted the policy.
Outboard Marine Corp., 154 Ill. 2d at 108; see also Travelers Insurance Co., 197 Ill. 2d at
293; see also Wilkin Insulation Co., 144 Ill. 2d at 74 (“All doubts and ambiguities must be
resolved in favor of the insured.”).
¶ 30 On appeal, America Zurich contends that it has no duty to defend the Wilcox law firm
against Demnicki’s complaint because exclusion E applies to acts or omissions of “any
insured” “for any business entity” in which “any insured” has a “controlling interest.”
(Emphasis added.) American Zurich asserts that Wilcox is an insured attorney under the
American Zurich policy, and therefore any acts by him for a business in which he had a
controlling interest are excluded from coverage. American Zurich contends that since the
circuit court already found that Wilcox had a controlling interest in Liquor License Solutions,
so as to trigger the application of exclusion E, it necessarily follows from the plain language
of that exclusion that the exclusion also applies to the Wilcox law firm.
¶ 31 The Wilcox law firm responds, as it did before the circuit court, that exclusion E applies
only when an insured attorney does work for an entity in which any insured has a controlling
interest, whereas the underlying complaint alleged that Wilcox’s work was done for Panacea
Partners and not for Liquor License Solutions. The Wilcox law firm therefore argues that
contrary to the circuit court’s ruling, exclusion E does not apply to either Wilcox or the
Wilcox law firm. In the alternative, the Wilcox law firm argues, again, as it did before the
circuit court, that the word “for” used in exclusion E (“the alleged acts or omissions by any
Insured *** for any business enterprise” (emphasis added)) is at best ambiguous and should
be construed against American Zurich as the drafter of the policy.
¶ 32 American Zurich replies that the Wilcox law firm should be barred from raising these
arguments on appeal because they were previously litigated by the circuit court and decided
against the Wilcox law firm, and because the firm did not file a cross-appeal as to these
issues so as to permit their review. According to American Zurich, the issues before this
court are limited to those raised by American Zurich. For the reasons that follow, we
disagree.
¶ 33 Our courts have repeatedly held that “[f]indings of the trial court adverse to the appellee
do not require the appellee’s cross-appeal if the judgment of the trial court was not at least
in part against the appellee.” Mortgage Electronic Registration Systems, Inc. v. Thompson,
368 Ill. App. 3d 1035, 1040 (2006) (citing Material Service Corp. v. Department of Revenue,
98 Ill. 2d 382, 387 (1983)); see also General Auto Service Station v. Maniatis, 328 Ill. App.
3d 537, 544-45 (2002) (noting that findings adverse to the appellee require a cross-appeal
only if the judgment was in part against the appellee); see also People v. Hamm, 149 Ill. 2d
201, 215 (1992) (“While defendants did not file a cross-appeal to raise these issues, they
need not, and cannot, as specific findings of the trial court adverse to an appellee do not
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require a cross-appeal as long as the judgment was entirely in favor of the appellee.”); see
also People v. Bradford, 372 Ill. 63 (1939). In the present case, the judgment of the circuit
court was entirely in favor of the Wilcox law firm, as it received all that it asked for, namely,
a declaration that American Zurich was required to defend it in the underlying Demnicki
claim. The fact that in doing so the court also ruled against Wilcox and found that American
Zurich owed no duty to defend him is inconsequential since Wilcox is not an appellee in the
instant matter. Moreover, an appellee may argue any matter to sustain a judgment as long as
it is supported by the record. Hamm, 149 Ill. 2d at 215 (citing Estate of Johnson v. Condell
Memorial Hospital, 119 Ill. 2d 496, 502 (1988)). Here, the Wilcox law firm’s argument is
based upon the language of the exclusion policy and the underlying complaint, both of which
are contained in the record below. Accordingly, we address the merits of the appeal.
¶ 34 In Illinois, it is the insurer’s burden to affirmatively demonstrate the applicability of an
exclusion. Insurance Corp. of Hanover v. Shelborne Associates, 389 Ill. App. 3d 795, 799
(2009); see also Pekin Insurance Co. v. Miller, 367 Ill. App. 3d 263, 267 (2006). “Exclusion
provisions that limit or exclude coverage must be construed liberally in favor of the insured
and against the insurer.” Pekin, 367 Ill. App. 3d at 267. In construing an insurance policy,
the primary function of the court is to “ascertain and enforce the intentions of the parties as
expressed in the agreement.” Crum & Forster Managers Corp. v. Resolution Trust Corp.,
156 Ill. 2d 384, 391 (1993). “To ascertain the intent of the parties and the meaning of the
words used in the insurance policy, the court must construe the policy as a whole, taking into
account the type of insurance for which the parties have contracted, the risks undertaken and
purchased, the subject matter that is insured and the purposes of the entire contract.” Crum
& Forster Managers Corp., 156 Ill. 2d at 391. Where the insurer relies on a provision that
it contends excludes coverage to reject a tender of defense, we review the applicability of the
provision to ensure it is “ ‘clear and free from doubt’ that the policy’s exclusion prevents
coverage.” Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons,
315 Ill. App. 3d 552, 560 (2000) (quoting Bituminous Casualty Corp. v. Fulkerson, 212 Ill.
App. 3d 556, 564 (1991)).
¶ 35 In the present case, there is no dispute that American Zurich does not have an obligation
to defend Wilcox under exclusion D of the insurance policy. The sole question that is before
us is whether American Zurich has a duty to defendant the Wilcox law firm under exclusion
E. In order to answer that question, however, we must first determine whether it has a duty
to defend Wilcox under exclusion E.
¶ 36 Exclusion E explicitly states that the policy “shall not apply to any Claim based upon or
arising out of, in whole or in part” “[t]he alleged acts or omissions by any Insured *** for
any business enterprise *** in which any Insured has a Controlling Interest.” (Emphases
added.) The policy defines an “insured,” inter alia, as: “[the] Named Insured” and “any
lawyer or professional corporation listed in the application on the day the Policy Period
incepts.” Since Wilcox was listed as a lawyer in the application for the policy on the day the
policy was incepted, there can be no doubt that he is an insured under the policy.
¶ 37 The next question we must answer is whether within the meaning of exclusion E,
Wilcox, as an insured, was acting “for” a company in which he had a controlling interest. If
Wilcox was acting for Panacea Partners, in which he had no controlling interest, then the
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exclusion does not apply and American Zurich has a duty to defend him. If, however, Wilcox
was acting for Liquor License Solutions, a company he admits he managed and in which he
had a controlling interest, then exclusion E applies and American Zurich is not obligated to
defend him in the underlying Demnicki law suit. Hence, the real dispute before us is the
interpretation of the term “for” in exclusion E and whether that term is sufficiently
ambiguous so as to require us to construe it against American Zurich as the drafter of the
insurance policy. Outboard Marine Corp., 154 Ill. 2d at 108-09 (“if the words in the policy
are susceptible to more than one reasonable interpretation, they are ambiguous [citation] and
will be construed in favor of the insured and against the insurer who drafted the policy”); see
also Travelers Insurance Co., 197 Ill. 2d at 293; see also Wilkin Insulation Co., 144 Ill. 2d
at 74 (“All doubts and ambiguities must be resolved in favor of the insured.”).
¶ 38 The terms of an insurance policy “should not be read in isolation” (Brown v. Delfre, 2012
IL App (2d) 111086, ¶ 20), but must be considered in context (Outboard Marine Corp., 154
Ill. 2d at 108). See also Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011) (an insurance
policy, like any other contract “must be construed as a whole, viewing each provision in light
of the other provisions. [Citation.] The parties’ intent is not determined by viewing a clause
or provision in isolation, or in looking at detached portions of the contract.”); see also Hot
Light Brands, L.L.C. v. Harris Realty, Inc., 392 Ill. App. 3d 493, 499 (2009). Furthermore,
if the terms are clear and unambiguous, they must be given their plain, ordinary, and
popularly understood meaning. Thompson, 241 Ill. 2d at 441. A term is not ambiguous
“merely because the parties disagree on its meaning”; rather, “[a]mbiguity exists where
language is obscure in meaning through indefiniteness of expression.” Hot Light Brands, 392
Ill. App. 3d at 500; see also Gassner v. Raynor Manufacturing Co., 409 Ill. App. 3d 995,
1008 (2011) (an ambiguity will be found only “where there is doubt as to the true sense or
meaning of the words themselves or an indefiniteness in the words’ expression”).
¶ 39 We must therefore consider the term “for” in context of the entirety of exclusion E, i.e.,
in the context of the entire clause “for any business enterprise *** in which any Insured has
a Controlling Interest.”
¶ 40 The parties naturally disagree as to this point, with the Wilcox law firm arguing that
Wilcox acted for Panacea Partners and American Zurich contending that he acted for Liquor
License Solutions. With their arguments, however, the parties implicitly acknowledge that
the term “for” in exclusion E essentially means for the “benefit of,” disagreeing only as to
whose benefit Wilcox’s actions were aimed at. This implicit acknowledgment is supported
by the American Heritage Dictionary’s definition of the term “for” as: (1) “used to indicate
the recipient or beneficiary of an action”; or (2) “on behalf of”; or (3) “in favor of,” all of
which essentially mean “for the benefit of.” American Heritage Dictionary 685 (5th ed.
2011). Accordingly, in this context, we fail to see two reasonable interpretations of the term
“for.” All three of these definitions essentially define “for” as “for the benefit of” and we
therefore find the term unambiguous.
¶ 41 Moreover, the fact that Wilcox may have been acting for the benefit of two companies,
Liquor License Solutions and Panacea Partners, does not make the term “for” ambiguous.
Even if Wilcox was acting for the benefit of both, there can be no doubt, nor does the Wilcox
law firm attempt to deny, that Wilcox was also acting for the benefit of his company, Liquor
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License Solutions. Nothing in the underlying complaint suggests that Wilcox agreed to
altruistically engage Liquor License Solutions to help Panacea Partners or that he did so for
the detriment, rather than the benefit of his company. The allegations of the underlying
complaint allege that Wilcox advertised himself and Liquor License Solutions as experts in
obtaining liquor licenses in Chicago and Illinois. The complaint further alleges that Panacea
Partners paid Liquor License Solutions for its services in obtaining a liquor license for the
De La Costa restaurant/lounge, and that numerous Liquor License Solutions employees
worked on obtaining that license. Accordingly, there can be no doubt that Wilcox acted for
the benefit of Liquor License Solutions, so as to trigger exclusion E of the American Zurich
policy. American Zurich therefore has no obligation to defend Wilcox under that provision.
¶ 42 Given this conclusion, we must next address whether American Zurich must defend the
Wilcox law firm pursuant to exclusion E. That exclusion is applicable to all insureds under
the policy based upon the conduct or interest of any one insured. The language of exclusion
E explicitly precludes coverage of “alleged acts or omissions by any Insured *** for any
business enterprise *** in which any Insured has a Controlling Interest.” (Emphases added.)
As already discussed above, there can be no doubt that Wilcox is an insured under the policy,
since he was listed as a lawyer in the application for the policy on the day the policy was
incepted. Accordingly, since, as an insured, Wilcox acted for the benefit of Liquor License
Solutions, in which he has a controlling interest, exclusion E also applies to the entire law
firm. Therefore, pursuant to exclusion E, American Zurich need not defend the Wilcox law
firm.
¶ 43 III. CONCLUSION
¶ 44 For all of the aforementioned reasons, we reverse the judgment of the circuit court.
¶ 45 Reversed.
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