                                                                            SIXTH DIVISION
                                                                            March 19, 2010



1-09-0502
CONTINENTAL CASUALTY COMPANY,                                         )   Appeal from
       Plaintiff-Appellee,                                            )   the Circuit Court
                                                                      )   of Cook County
               v.                                                     )
                                                                      )   07 CH 25529
DONALD T. BERTUCCI, LTD., and DONALD T. BERTUCCI,                     )
    Defendants-Appellants                                             )   Honorable
                                                                      )   Nancy J. Arnold,
(Lourdes Rodriguez,                                                   )   Judge Presiding
       Defendant).                                                    )

       JUSTICE McBRIDE delivered the opinion of the court:

       This is an insurance coverage dispute involving a lawyer’s professional liability policy

and allegations that counsel retained an excessive amount of attorney fees from the settlement

proceeds of a medical malpractice action. The lawyer has been sued in state court and named in

attorney disciplinary proceedings. On cross-motions for summary judgment, the circuit court of

Cook County found the insurer owed no duty to defend or cover the lawsuit, but owed coverage

in the disciplinary action. Both sides appeal.

       The construction of an insurance contract and a determination of the rights and

obligations of the contracting parties are questions of law and suitable for resolution by summary

judgment. Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 58, 514 N.E.2d 150,

166 (1987). We address the trial court’s determinations de novo. Pekin Insurance Co. v. Wilson,

391 Ill. App. 3d 505, 509-10, 909 N.E.2d 379, 385 (2009) (construction of insurance policy is

reviewed de novo); City of Collinsville v. Illinois Municipal League Risk Management Ass’n, 385

Ill. App. 3d 224, 229, 904 N.E.2d 70, 75 (2008) (entry of summary judgment is reviewed de
1-09-0502

novo).

         In order to determine whether the insured has a duty to defend the insured, we consider

the allegations of the underlying pleadings and compare those allegations to the relevant

provisions of the insurance contract. Pekin Insurance Co., 391 Ill. App. 3d at 510, 909 N.E.2d at

385. If the facts alleged in the underlying complaint fall within or potentially within the policy’s

coverage, the insurer is duty bound to defend. Pekin Insurance Co., 391 Ill. App. 3d at 510, 909

N.E.2d at 385. The threshold a complaint must meet to present a claim for potential coverage

and raise a duty to defend is minimal, and any doubts are to be resolved in favor of the insured.

City of Collinsville, 385 Ill. App. 3d at 230, 904 N.E.2d at 75-76.

         On May 11, 2007, Continental Casualty Company (Continental Casualty), the plaintiff in

this insurance coverage dispute, issued a $2 million lawyers professional liability policy to

Chicago attorney Donald T. Bertucci and his solo law practice, on a claims-made-and-reported

basis. The written contract tendered for our consideration specifies that all words and phrases

appearing in bold font are defined in the contract. The “INSURING AGREEMENT” of the

policy indicates there is “Coverage” for “all sums in excess of the [$5,000] 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 any act or omission in the performance of legal services by the

Insured.”

         The policy defines “Claim” 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 failure to


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render legal services.” “Legal services” are “those services performed by an Insured for others

as a lawyer, arbitrator, mediator, title agent or as a notary public.” “Damages” are limited to

“judgments, awards and settlements” and do not include “legal fees, costs and expenses ***

charged by the Insured *** and injuries that are a consequence of any of the foregoing.”

“Claim expenses” consist of “fees charged by attorneys designated by the Company or by the

Insured with the Company’s written consent” and “all other all other reasonable and necessary

fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a

claim if incurred by the Company, or by the Insured with the written consent of the Company.”

       The section of the contract concerning the policy’s limits of liability and deductible,

indicates “[a]lthough not [considered] Damages,” the Company will make “Supplementary

payments” “up to $10,000.00 for any Insured and in the aggregate for attorney fees and other

reasonable costs, expenses, or fees *** resulting from a Disciplinary Proceeding *** arising out

of an act or omission in the rendering of legal services by such Insured.” Again, “legal

services” consist of “those services performed by an Insured for others as a lawyer, arbitrator,

mediator, title agent or as a notary public.” Further, “In the event of a determination of No

Liability of the Insured against whom the Disciplinary Proceeding has been brought, the

Company shall reimburse such Insured for Disciplinary Fees, including those in excess of the

$10,000 cap set forth above, up to $100,000.”

       A few weeks after purchasing the policy, Bertucci requested defense and coverage of a

lawsuit filed against him by a woman he represented in a medical malpractice case that settled in

2002 for $2.25 million, Rodriguez v. Illinois Masonic Medical Center and Curtis Whisler, M.D.,

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No. 97-L-16741. Bertucci characterized the suit against him, Rodriguez v. Bertucci, No. 07-L-

06247, as a claim for damages as defined by the insuring agreement. He subsequently requested

defense and coverage of related proceedings being conducted by the Attorney Registration and

Disciplinary Commission (ARDC), Donald Thomas Bertucci, in relation to Lourdes Rodriguez,

No. 07-CI-2293.

       According to the verified pleading filed in state court and correspondence sent to the

disciplinary agency, Bertucci’s former client, Lourdes Rodriguez, is a native Spanish speaker

with little formal education, who returned to Mexico while her medical malpractice suit was

pending. She did not take issue with Bertucci’s handling of her claim or with the settlement

figure he secured. But based on Bertucci’s retention of $750,000 of the proceeds and subsequent

representation about his right to retain them, Rodriguez brought claims of breach of contract,

unjust enrichment, conversion, breach of fiduciary duty, fraud, and violation of the Illinois statute

which limits contingent legal fees in medical malpractice actions, section 2-1114 of the Code of

Civil Procedure. 735 ILCS 5/2-1114 (West 1996). The statute, which took effect in 1985, limits

the total contingent fee for a plaintiff’s attorney or attorneys in a medical malpractice action to

33.33% of the first $150,000 of the sum recovered, 25% of the next $850,000, and 20% of any

amount over $1 million. 735 ILCS 5/2-1114(a) (West 1996). The statute also provides that,

“[i]n special circumstances, where an attorney performs extraordinary services involving more

than usual participation in time and effort the attorney may apply to the court for approval of

additional compensation.” 735 ILCS 5/2-1114(c) (West 1996). Rodriguez alleged that the fee

statute and her written agreement with Bertucci executed on December 23, 1996, limited his


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compensation to no more than $512,500, and that he had taken an additional $237,500 without

getting her consent and the court’s approval. Furthermore, he had given her an amended

settlement statement in which he “represented and implied” that he had obtained judicial

approval for the enhanced fees. She began to uncover his misconduct when she returned to

Chicago in approximately June 2006 for further medical treatment and was advised by the

medical provider that she still owed money for her previous care -- services which Bertucci told

her had been satisfied from the settlement proceeds. She telephoned Bertucci, and when his

initial reaction was to use profanity and exclaim “what are you doing in Chicago?” she became

suspicious and reviewed her records. She further alleged that she retained new attorneys who

telephoned and corresponded with Bertucci several times in April and May 2007, but Bertucci

did not explain the discrepancy or return the unauthorized fees to Rodriguez. Her new attorneys

sent a letter to the ARDC which referenced their mandatory duties to report attorney misconduct,

outlined Rodriguez’s concerns, and indicated they had been in communication with Bertucci but

had not received a satisfactory response. See In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 79

(1988) (lawyer suspended one year for failure to report his unprivileged knowledge of an

attorney’s conversion of client’s settlement funds). A few days after counsel notified the ARDC,

Rodriguez asked the agency to investigate the matter and substitute her name as the complainant.

The state court action was filed after that, seeking the unauthorized fees, interest accruing as of

the settlement on February 12, 2002, her new legal expenses, and in the four equitable counts,

punitive damages. See 815 ILCS 205/2 (West 1998) (authorizing equitable award of 5%

prejudgment interest); see also Krantz v. Chessick, 282 Ill. App. 3d 322, 668 N.E.2d 77 (1996)


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(former client entitled to prejudgment interest on settlement proceeds).

       Continental Casualty denied coverage for the two proceedings. It then filed this action to

obtain a judicial declaration of the parties’ rights and obligations under the policy, Bertucci

counterclaimed, and as summarized above, on cross-motions for summary judgment, the circuit

court ruled in part for Continental Casualty and in part for Bertucci. The court ruled there was no

coverage for the civil action because it did not seek “damages” as that term was defined in the

policy; however, the ARDC investigation was a “Disciplinary Proceeding *** arising out of an

act or omission in the rendering of legal services” which triggered the policy’s “Supplementary

payments” obligation of up to $10,000 for attorney fees and other expenses, and additional

reimbursement up to $100,000 upon Bertucci’s vindication.

       In pursuit of coverage for the civil action, appellant Bertucci raises two contentions. He

first argues that Continental Casualty prevailed in the trial court by mischaracterizing the former

client’s lawsuit as a fee dispute, which is outside the scope of coverage. He contends his

professional liability coverage was triggered because Rodriguez alleged he committed an error or

omission while representing her, when despite having her authorization to retain $750,000 of her

settlement proceeds, he failed to comply with the statutory requirement that he also obtain court

approval for retaining enhanced fees for providing extraordinary services in a medical

malpractice action. See 735 ILCS 5/2-1114(c) (West 1996). He also contends that settling a

malpractice matter, paying outstanding liens, and distributing the remaining settlement funds to

the client is a traditional, customary, and ordinary function “performed by an Insured for others

as a lawyer,” and, therefore, was the rendering of “Legal services” within the meaning of the


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policy. He further contends that Continental Casualty Co. v. Law Offices of Melvin James

Kaplan, 345 Ill. App. 3d 34, 801 N.E.2d 992 (2003), an Illinois case involving the same insurer

and identical contract language, is factually similar, but the circuit court erroneously rejected it

and chose to rely on a California case which is distinguishable, Tana v. Professionals Prototype I

Insurance Co., 47 Cal. App. 4th 1612, 55 Cal. Rptr. 2d 160 (1996).

       Continental Casualty responds that the court ruled correctly that there is no coverage for

the Rodriguez civil action because the insuring agreement covers “damages” but the suit

concerns “legal fees” and “injuries that are a consequence [thereof],” which are outside the scope

of the policy. The insurer also emphasizes that coverage is limited to “an act or omission in the

performance of legal services by the Insured,” which are defined as “those services performed

by an Insured for others as a lawyer,” and that Bertucci’s retention of excessive fees was in no

one’s interest but his own and had nothing to do with the practice of law.

       Insurance contracts are subject to the same rules of construction as are applicable to other

types of contracts. Cincinnati Insurance Co. v. Gateway Construction Co., 372 Ill. App. 3d 148,

151, 865 N.E.2d 395, 398 (2007). When construing a contract, the court’s primary objective is to

ascertain the true intent of the parties as expressed in their written agreement. Cincinnati

Insurance Co., 372 Ill. App. 3d at 151, 865 N.E.2d at 398. Accordingly, the court reads the

contract as a whole, giving effect to every provision and taking into account the type of

insurance, the nature of the risks undertaken, and the overall purpose of the policy. Cincinnati

Insurance Co., 372 Ill. App. 3d at 151-52, 865 N.E.2d at 398-99. Terms used are given their

plain, ordinary, and generally accepted meaning, unless the contract indicates in some way that


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particular definitions are used to replace that meaning. See, e.g., Sims v. Allstate Insurance Co.,

365 Ill. App. 3d 997, 1001, 851 N.E.2d 701, 704 (2006). Definite and clear provisions, upon

which the risk and premium calculations of the insurer were based, must be enforced as stated,

unimpaired by ill-considered or unreasonable interpretation. Sims, 365 Ill. App. 3d at 1001, 851

N.E.2d at 704.

       The complaint and plain, unambiguous language of the policy lead us to find that the

insurer’s interpretation of the coverage is the only reasonable one. The first numbered paragraph

in Bertucci’s professional liability contract contains the “INSURING AGREEMENT.” An

insuring agreement is “[a] provision of an insurance policy *** reciting the risk assumed by the

insurer and establishing the scope of the coverage.” Black’s Law Dictionary 811 (7th ed. 1999).

This particular insuring agreement expressly limits the scope of coverage to legal proceedings

which allege both covered “damages” and “an act or omission in the performance of legal

services.” The state court action does not meet either requirement for coverage.

       “Damages” are defined in the policy as “judgments, awards and settlements” and they “do

not include” “legal fees *** charged by the Insured, no matter whether claimed as restitution of

specific funds, forfeiture, financial loss, set-off or otherwise, and injuries that are a consequence

of any of the foregoing.” Rodriguez’s legal action indisputably seeks (1) restitution for legal fees

which Bertucci improperly charged against her settlement proceeds from the medical malpractice

case and (2) consequential expenses for his impropriety, including statutory interest and her new

attorney fees, as well as punitive damages. Therefore, the Rodriguez action alleges only

noncovered, direct and consequential injuries from the excessive legal fees Bertucci charged


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against her assets; it does not allege “damages” within the meaning of the policy.

       Our opinion is influenced by California, Idaho, and Massachusetts cases which analyze

similar attorney-client disputes and conclude the injuries are not the type covered by the

attorney’s professional liability insurance.

       The client in Tana filed a complaint alleging his San Francisco attorney misrepresented or

failed to explain a fee-splitting agreement in litigation with an entity known as Kikkoman and

expected unconscionably high bonuses from his $7.6 million settlement proceeds. Tana, 47 Cal.

App. 4th at 1617-18, 55 Cal. Rptr. 2d at 163. Faced with competing claims to the $7.6 million,

the Kikkoman defendant deposited the money with the court. Tana, 47 Cal. App. 4th at 1615, 55

Cal. Rptr. 2d at 161. The client sued for declaratory relief and indemnification, compensatory

damages, attorney fees, and punitive damages from his former attorney. Tana, 47 Cal. App. 4th

at 1618, 55 Cal. Rptr. 2d at 163. The attorney’s professional liability insurer declined to defend

him, in part because the only damages the client sought pertained to the legal fees. Tana, 47 Cal.

App. 4th at 1618, 55 Cal. Rptr. 2d at 163. Interpreting the same contract language at issue here,

the court agreed, reasoning:

                       “A commonsense reading of the complaint reveals that it

               was entirely a fee dispute, not a malpractice claim. [The client] did

               not complain of anything [the attorney] did or failed to do in

               representing him in the Kikkoman litigation. *** [The client

               alleged acts or omissions with respect to attorney fees only. All of

               the damages the client sought were either the return of or reduction


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               of attorney fees, or were in some way a consequence of those fees.]

                         ***

                         Even if [the client] might have been seeking [compensatory

               damages and attorney fees, which are] more than just a reduction in

               his attorney's fee liability, [the attorney arguing for coverage]

               cannot avoid the inevitable conclusion that such damages are

               ‘injuries’ caused by (i.e., ‘a consequence of’) a dispute over legal

               fees. Fee disputes do not become covered damages merely because

               the damages are called ‘compensatory’ or are sought under a claim

               of ‘negligence’ or ‘breach of fiduciary duty.’ [Citation.] Reading

               the complaint as a whole, it is clear the relief [the client] seeks is

               limited to a judicial resolution of the fee dispute, indemnity from

               payment of fees, and damages and costs associated with the

               controversy.” Tana, 47 Cal. App. 4th at 1617-18, 55 Cal. Rptr. 2d

               at 163.

Accordingly, the California court found there was no possibility of coverage and therefore no

duty to defend. Tana, 47 Cal. App. 4th at 1619, 55 Cal. Rptr. 2d at 164.

       Bertucci attempts to distinguish Tana by arguing Rodriguez is essentially alleging she

was injured by his failure to comply with the Illinois statute regarding enhanced fees. He

contends that in contrast to Tana, his client complains that he “failed in the litigation to obtain a

court order at the termination of litigation approving his enhanced fee.” In reality, however,


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Tana’s client complained that counsel “failed” at the same point in the litigation, following the

successful negotiation and funding of the settlement, by claiming entitlement to an excessive

portion of the settlement dollars. Bertucci also contends that because Rodriguez refers to the

statute, her suit is really about an error or omission in his representation of her as a client, rather

than a disagreement about his compensation. Continental Casualty correctly points out, however,

that the cited statute concerns legal fees only and has nothing to do with client representation in a

medical malpractice action. The statute is entitled “Contingent fees for attorneys in medical

malpractice actions.” Emphasis added. 735 ILCS 5/2-1114 (West 1996). In its entirety, the

statute provides:

                        “Contingent fees for attorneys in medical malpractice

                actions. (a) In all medical malpractice actions the total contingent

                fee for plaintiff's attorney or attorneys shall not exceed the

                following amounts:

                        33 1/3 % of the first $150,000 of the sum recovered;

                        25% of the next $850,000 of the sum recovered; and

                        20% of any amount recovered over $1,000,000 of the sum

                recovered.

                        (b) For purposes of determining any lump sum contingent

                fee, any future damages recoverable by the plaintiff in periodic

                installments shall be reduced to a lump sum value.

                        (c) The court may review contingent fee agreements for


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               fairness. In special circumstances, where an attorney performs

               extraordinary services involving more than usual participation in

               time and effort the attorney may apply to the court for approval of

               additional compensation.

                       (d) As used in this Section, “contingent fee basis” includes

               any fee arrangement under which the compensation is to be

               determined in whole or in part on the result obtained.” 735 ILCS

               5/2-1114 (West 1996).

Allegations of Bertucci’s violation of a statue dealing exclusively with legal fees are allegations

about “legal fees *** paid or incurred or charged by the Insured” or “injuries that are a

‘consequence of” [legal fees paid or incurred or charged by the Insured].” Under a reasonable

construction of the policy and complaint, the injuries alleged are not “damages” within the scope

of the insuring agreement.

       Like Bertucci, the personal injury attorney named in the Idaho case Continental Casualty

Co v. Brady, 127 Idaho 830, 832, 907 P.2d 807, 809 (1995), successfully negotiated a settlement

for his clients, following the near drowning of their son. However, the $393,000 settlement

proceeds were divided in such a manner that only $216,930 was attributed to the personal injury

claim addressed by their fee agreement. Brady, 127 Idaho at 832, 907 P.2d at 809. The

remaining $176,070 was for a different claim and arguably belonged entirely to the clients, until,

the day after the settlement, when the attorney persuaded them to enter into a second fee

agreement entitling him to $122,500 of the $176,070. Brady, 127 Idaho at 832, 907 P.2d at 809.


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Upon reflection, the clients filed a five-count lawsuit in Idaho state court, alleging the second fee

agreement was unenforceable, amounted to breach of fiduciary duty, unjust enrichment, and

violation of the Idaho Consumer Protection Act, and also warranted punitive damages. Brady,

127 Idaho at 833, 907 P.2d at 810. The attorney seeking coverage argued the complaint went

beyond a mere fee dispute, because it addressed the consumer protection statute and his fiduciary

duty, in addition to the claims directly concerning the enforceability or actual terms of the second

fee contract. Brady, 127 Idaho at 833, 907 P.2d at 810. He also argued that because, under his

reading of the original fee agreement, the clients were entitled to only a portion of the $122,000

they were claiming in damages as a return of fees, the excess must represent damages beyond a

return of fees. Brady, 127 Idaho at 833, 907 P.2d at 810. The court rejected this argument,

stating:

               “If the party is requesting a ‘return of fees,’ it is immaterial what

               the actual theory of recovery is since the [lawyer’s professional

               liability] policy flatly excludes ‘all claims’ for the return of fees.

               [Citation.] Furthermore, whether the [clients] are actually entitled

               to recover $122,000 is not the issue. The issue is simply whether

               this amount represents fees paid to [the attorney].

                       ***

                       [Ultimately], all of the factual allegations in the complaint

               center on a dispute over attorney fees, and the $122,000 sum

               requested as damages is tied directly to that fee dispute. ***


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                       In short, with the exception of the claim for punitive

               damages [which is excluded from coverage under the policy], the

               Duvalls’ complaint simply does not support a claim for any

               damages unrelated to the return of fees.” (Emphasis omitted.)

               Brady, 127 Idaho at 833-34, 907 P.2d at 810-11.

The language excluding the “ ‘return of fees’ ” in Brady appeared in the policy’s exclusions

section, instead of in the insuring agreement. Brady, 127 Idaho at 832, 907 P.2d at 809. The

effect of the language is the same, however, regardless of where it appears in the insurance

contract. Continental Casualty has also correctly noted that the Brady exclusion was narrower

and only excluded “ ‘return of fees’ ” from coverage (Brady, 127 Idaho at 832, 907 P.2d at 809),

in contrast to the broader language at issue here, which precludes coverage for “legal fees ***

charged by the Insured” and “injuries which are a consequence thereof.”

       Like the courts in Tana and Brady, we compare the language of the policy with the facts

alleged in the complaint, rather than examine whether the client has pled any particular theory of

relief such as the attorney’s breach of a legal duty, violation of a statute, or disregard for an

equitable duty. Pekin Insurance Co., 391 Ill. App. 3d at 510-11, 909 N.E.2d at 385 (where

intentional infliction of emotional distress, assault, and battery were repled in negligence terms in

attempt to trigger coverage, court disregarded plaintiff’s labeling and found facts alleged were

inconsistent with negligence); Norman Shabel, P.C. v. National Union Fire Insurance Co., 923

F. Supp. 681, 683-84 (D. N.J. 1996) (where attorney allegedly failed to give client correct

percentage of settlement, court disregarded assorted legal theories pled by client, focused on


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nature of claim, which was retention of excessive legal fees, and found claim was not covered);

Gregg & Valby, L.L.P. v. Great American Insurance Co., 316 F. Supp. 2d 505, 512-13 (S.D. Tex.

2004) (where real estate closing documents misrepresented amount of attorney fees to be paid to

law firm, characterizing the firm’s fee-setting and billing practices as legal work or advice would

not conceal true nature of claim, court found no coverage). Upon doing so, we conclude that

Rodriguez’s lawsuit is a fee dispute and does not allege “damages” within the meaning of the

policy Bertucci obtained from Continental Casualty Company.

       The Rodriguez lawsuit not only fails to alleged covered “damages,” it also fails to allege

“an act or omission in the performance of legal services by the Insured” within the meaning of

the insuring agreement. According to the policy’s definitions section, legal services are “those

services performed by an Insured for others as a lawyer, arbitrator, title agent or as a notary

public.” Bertucci’s retention of money cannot be construed as the provision of any type of

service for another person and is a business practice independent of the lawyer-client

relationship.

       In Gregg & Valby, a Texas court rejected the contention that a law firm’s misconduct

with respect to its fees were client services. Gregg & Valby, 316 F. Supp. 2d 505. The legal

malpractice policy at issue covered “Professional services,” which were defined as “ ‘services

you perform for a client in your capacity as: (a) a lawyer; (b) a mediator or arbitrator; (c) a notary

public; or (d) as an administrator, conservator, executor, guardian trustee, receiver, or in any

similar capacity. ’ ” Gregg & Valby, 316 F. Supp. 2d at 510-11. Practically speaking, this

definition is identical to the definition operating here. The Houston firm was hired to draft forms


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for two mortgage lenders to use at real estate closings. Gregg & Valby, 316 F. Supp. 2d at 511.

The prepared forms indicated the firm would receive a $175 document preparation fee, but the

firm had allegedly agreed to share the collected fees with the mortgage lenders, in violation of

federal laws prohibiting fee-splitting and kickbacks in real estate settlements involving federal

funds and requiring truth in lending. Gregg & Valby, 316 F. Supp. 2d at 511. The firm was

named in two class-action lawsuits and sought defense and coverage from its legal malpractice

insurer, arguing that the alleged wrongdoing occurred early on when the lawyers drafted the

forms and advised the mortgage lenders on the legality of the fee-sharing arrangement. Gregg &

Valby, 316 F. Supp. 2d at 512. The court rejected the contention that the suits concerned legal

work or advice, pointing out that “the home buyers did not complain about the amount of the

‘Document Preparation Fee,’ nor its existence, but only what happened to that fee after it was

paid at closing.” Gregg & Valby, 316 F. Supp. 2d at 513.

       After boiling the allegations down to the facts and determining they concerned the law

firm’s fee-setting and billing practices only, the court considered whether the actions were

“professional services” triggering coverage under the policy. Gregg & Valby, 316 F. Supp. 2d at

513. The court consulted considerable authority and concluded professional services within the

context of insurance contracts were only “ ‘those acts which use the inherent skills typified by

that profession, not all acts associated with the profession.’ ” (Emphasis in original.) Gregg &

Valby, 316 F. Supp. 2d at 513, quoting Atlantic Lloyds Insurance Co. of Texas v. Susman

Godfrey, L.L.P., 982 S.W.2d 472, 477 (Tex. App. 1998).

               “When determining whether a particular act is a ‘professional


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                service,’ the court ‘must look not to the title or character of the

                party performing the act, but the act itself.’ [Citation.] Thus, even

                tasks performed by lawyers are not considered ‘professional

                services’ if they are ordinary activities that can be completed by

                those lacking legal knowledge and skill.” Gregg & Valby, 316 F.

                Supp. 2d at 513, citing Atlantic Lloyd’s, 882 S.W.2d at 476-77.

See also Marx v. Hartford Accident & Indemnity Co., 183 Neb. 12, 13, 157 N.W.2d 870, 872

(1968) (indicating the “widely accepted” standard when determining whether a particular act is a

professional service is to look to the act itself, not the title or character of the party performing

it); Medical Records Associates, Inc. v. American Empire Surplus Lines Insurance Co., 142 F.3d

512, 515 (1st. Cir. 1998) (concluding professional services are “activities that distinguish a

particular occupation from other occupations -- as evidenced by the need for specialized learning

or training -- and from the ordinary activities of life and business”). The Texas court found no

indication that the Houston law firm’s billing or fee-setting required legal skill or knowledge, or

was specific to the legal profession. Gregg & Valby, 316 F. Supp. 2d at 513. Instead, setting a

price and billing the client were “merely administrative tasks inherent to all businesses.” Gregg

& Valby, 316 F. Supp. 2d at 514.

        The billing/professional services dichotomy also appears in Reliance National Insurance

Co. v. Sears, Roebuck & Co, 58 Mass. App. 645, 792 N.E.2d 145 (2003), a Massachusetts case

involving an attorney who billed his client for legal services that were never performed. The

client did not realize the discrepancy until it had overpaid $833,409. Reliance National, 58


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Mass. App. Ct. 646, 792 N.E.2d at 146. It sued for an accounting and to recover the legal fees

and its consequential legal fees and costs. Reliance National, 58 Mass. App. at 646, 792 N.E.2d

at 146. The lawyer’s professional liability policy covered claims “ ‘caused by any act, error, or

omission of the insured ... which arise[s] out of the rendering or failure to render professional

services for others in the insured’s capacity as a lawyer.’ ” (Emphasis in original.) Reliance

National, 58 Mass. App. at 646-47, 792 N.E.2d at 147. Predictably, the Massachusetts court

found that billing a client for legal services did not implicate the legal malpractice policy:

               “[Professional acts or services require] specialized knowledge and

               skill that is acquired through rigorous intellectual training.

               [Citation.] The setting for the intellectual training is often an

               academic one, as in architectural school, engineering school, law

               school, or medical school.

                       Against those criteria we decide that the billing function of

               a lawyer is not a professional service. Billing for legal services

               does not draw on special learning acquired through rigorous

               intellectual training. We are not aware that courses in billing

               clients appear in law school curricula. The billing function is

               largely ministerial. There are elements of experience and judgment

               in billing for legal services, but the same goes for pricing shoes.

               As billing is not a professional service, it does not come with the

               coverage of a professional liability insurance policy ***.”


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                Reliance National, 58 Mass. App. at 648, 792 N.E.2d at 148.

        It has also been observed:

                “The professional aspect of a law practice obviously involves the

                rendering of legal advice to and advocacy on behalf of clients for

                which the attorney is held to certain minimum professional and

                ethical standards. [This is distinct from the] *** commercial

                aspect [of a law practice, which] involves the setting up and

                running of a business, i.e., securing office space, hiring staff,

                paying bills and collecting on accounts receivable ***.” Harad v.

                Aetna Casualty & Surety Co., 839 F.2d 979, 985 (3rd Cir. 1988).

See also Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App. 1995) (indicating a cause

of action for legal malpractice arises out of an attorney’s bad legal advice or improper

representation of a client).

        Turning again to the allegations against Bertucci, it is apparent that Rodriguez’s claims

concern ordinary, nonlegal services rather than “an act or omission in the performance of legal

services by the Insured” within the meaning of the insuring agreement. Moreover, as we

suggested above, we do not find that Bertucci’s actions were “performed by an Insured for others

as a lawyer.” In our assessment, to construe the policy to cover Bertucci’s retention of an

excessive amount of attorney fees would expand the insurance coverage beyond what was

reasonably contemplated by the parties at the time of contracting. In bargaining for professional

liability insurance coverage, Bertucci could legitimately expect that he would be covered for acts


                                                  19
1-09-0502

or omissions in the course of representing his clients but would not be covered with respect to fee

arrangements and other business disputes. Cincinnati Insurance Co., 372 Ill. App. 3d at 151-52,

865 N.E.2d at 398-99 (in order to construe intent at the time of contracting, a court reads the

policy as a whole, giving effect to every provision, and taking into account the type of insurance,

the nature of the risks undertaken, and the overall purpose of the policy).

       Moreover, we find the case Bertucci relies upon readily distinguishable in that the alleged

negligence in Kaplan arose during the core representation of the client, when a bankruptcy

lawyer failed to obtain judicial discharge of his client’s prepetition debts, namely the attorney

fees the client owed for legal services rendered prior to the filing of the bankruptcy petition.

Kaplan, 345 Ill. App. 3d at 37, 801 N.E.2d at 994. In that case, the claim against the lawyer

clearly arose from an act or omission in the rendering of legal services and was alleged to be a

consequence of negligence in performing those services. In that case, counsel was retained to do

a job and was sued for failing to do it properly. In contrast, it is alleged in Rodriguez v. Bertucci,

No. 07-L-06247, that Bertucci was retained to file and litigate a case on Rodriguez’s behalf and

that he effectively performed those services. Rodriguez has not made any accusations about the

legal services Bertucci rendered: she has not criticized his preparation or timely filing of the

medical malpractice pleading, she has not questioned his discovery efforts, she has not

challenged his choice of experts, she has not taken issue with his case management, and she has

not disputed the negotiation efforts that ultimately brought the case to a successful conclusion.

While in Kaplan the claim arose because the lawyer incorrectly performed the task he was hired

to perform in the bankruptcy court, the claim in the lawsuit at issue arose only after the lawyer


                                                 20
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correctly completed the task he was hired to perform. Thus, we reject Bertucci’s contention that

there is no meaningful distinction between the Kaplan dispute and the lawsuit pending against

Bertucci in the circuit court of Cook County.

       Bertucci’s second main argument regarding the Rodriguez action is that the policy’s

dishonesty exclusion contains an exception that is a stand-alone grant of coverage to attorneys

like himself who are defending accusations of a “dishonest, fraudulent, criminal, or malicious act

or omission.” He pled this theory in Count II of his counterclaim and unsuccessfully argued for

summary judgment. He cites the following policy language:

               “IV. EXCLUSIONS

               This policy does not apply:

                       A. to any claim based on or arising out of any dishonest,

               fraudulent, criminal or malicious act or omission by an Insured

               except that this exclusion shall not apply to personal injury. The

               Company shall provide the Insured with a defense of such claim

               unless or until the dishonest, fraudulent, criminal or malicious act

               or omission has been determined by any trial verdict, court ruling,

               regulatory ruling or legal admission, whether appealed or not.

               Such defense will not waive any of the Company’s rights under

               this policy. Criminal proceedings are not covered under this Policy

               regardless of the allegations made against the Insured[.]”

He contends that at least three of the five counts in Rodriguez’s pleading include allegations that


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are potentially within this coverage and trigger the insurer’s duty to defend. More specifically,

the conversion count includes the allegation, “32. Bertucci’s actions were outrageous and

constitute malice and oppression against Rodriguez.” The breach of fiduciary duty count alleges,

“27. Bertucci breached *** [the attorney-client duty by] paying himself the Unauthorized Fees

without prior court approval or the approval of Rodriguez” and “28. *** by overreaching and

taking advantage of his position.” In addition, the fraud count alleges, “25. By preparing and

delivering the Amended Settlement Statement to Rodriguez with the amount of THIRTY-

THREE AND ONE-THIRD PERCENT (33 1/3%) presented as the correct attorney’s fee,

Bertucci [falsely] represented and implied that he had obtained a court’s authority to the

additional fees and was entitled to [the] additional fees.” Bertucci concludes that if there is any

ambiguity in the meaning of the dishonesty exception, it must be construed in favor of the

insured and against the insurer. See Continental Casualty Co., v. McDowell & Colantoni, Ltd.,

282 Ill. App. 3d 236, 241, 668 N.E.2d 59, 62-63 (1996) (when an exclusionary clause is relied

up on to deny coverage, it must be clear and free from doubt, and construed liberally in favor of

the insured and strongly against the insurer).

         Bertucci’s argument fails because an exception to an exclusion does not create coverage

or provide an additional basis for coverage, it only preserves coverage granted in the insuring

agreement. Stoneridge Development Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 756, 888

N.E.2d 633, 656 (2008). When the allegations do not fall within the scope of the insuring

agreement, some courts are unwilling to even consider the applicability of any exclusions.

Stoneridge Development Co., 382 Ill. App. 3d at 756, 888 N.E.2d at 656. We nonetheless


                                                 22
1-09-0502

consider it in light of the overriding principle to construe the policy as a whole (Stoneridge

Development Co., 382 Ill. App. 3d at 756, 888 N.E.2d at 656, citing Outboard Marine Corp. v.

Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607 N.E.2d 1204, 1212 (1992)), but have little

sympathy for the proposition. The argument gives inordinate emphasis to an isolated portion of

one sentence, contrary to the principle that policy provisions are read in light of other relevant

provisions and the contract as a whole. Founders Insurance Co. v. Muñoz, 389 Ill. App. 3d 744,

749, 905 N.E.2d 902, 908 (2009) (all the provisions of a contract, rather than its isolated parts,

should be read together to interpret the parties’ intent); Outboard Marine, 154 Ill. 2d at 108, 607

N.E.2d at 1212. A policy must not be interpreted in a manner that renders provisions of the

contract meaningless. Cincinnati Insurance Co., 372 Ill. App. 3d at 152, 865 N.E.2d at 399. The

fact that Bertucci has suggested a creative possibility or that Continental Casualty Company

disagrees with him does not mean the contract is ambiguous. Young v. Allstate Insurance Co.,

351 Ill. App. 3d 151, 157, 812 N.E.2d 741, 748 (2004). The relevant inquiry is whether the

contract’s provisions are subject to more than one reasonable interpretation. Young, 351 Ill.

App. 3d at 157, 812 N.E.2d at 748. We will not distort the policy and create ambiguity where

none exists. Young, 351 Ill. App. 3d at 157, 812 N.E.2d at 748. Bertucci’s alternate

interpretation is not reasonable. This contract’s insuring agreement and the quoted exclusion

expressly limit coverage to a “claim,” claims are expressly defined in the policy as “act[s] or

omission[s] *** in the rendering of or failure to render legal services,” and we have already

rejected the notion that Bertucci’s alleged conduct involved “legal services.”

       For these reasons, we find that there was no possibility of coverage for the Rodriguez


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1-09-0502

civil action and we affirm the circuit court ruling to that effect.

        On cross-appeal, Continental Casualty Company challenges the circuit court’s

determination that the ARDC proceeding triggered the policy’s supplementary payments

provision. Bertucci pled this theory in count III of his counterclaim. The supplementary

payments provision expressly limits coverage to a “Disciplinary Proceeding *** arising out of

an act or omission in the rendering of legal services by such Insured.” The insurer argues that,

like the civil case, the ARDC proceeding is not based on any wrongful acts committed in the

performance of “legal services.” Bertucci responds that the complaint before the ARDC, the sole

body charged with the investigating and prosecuting claims against Illinois attorneys arising out

of the representation of a client in a legal matter, is a “Disciplinary Proceeding” that arises

from his practice of law, and is within the scope of the supplementary payments provision.

        We again find the insurer’s construction of the policy to be the only reasonable

construction. As discussed above, this insuring agreement, which is the portion of the policy

“reciting the risk assumed by the insurer or establishing the scope of the coverage” (Black’s Law

Dictionary 811 (7th ed. 1999)) precludes coverage for Bertucci’s retention of excessive attorney

fees from Rodriguez’s settlement proceeds. The supplementary payments provision must be read

within the context of this insuring agreement. In fact, the supplementary payments provision

reiterates that coverage is limited to “legal services,” which we know must be services that draw

upon Bertucci’s specialized knowledge and skill as a lawyer and are provided for others.

Accordingly, we conclude the ARDC proceeding does not come within the terms of the policy

and that Continental Casualty Company was entitled to judgment as a matter of law on count III


                                                  24
1-09-0502

of Bertucci’s counterclaim. The circuit court’s ruling with respect to the supplementary

payments provision is reversed.

       Affirmed in part and reversed in part.

       CAHILL, P.J., and J. GORDON, J., concur.




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