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                                   Appellate Court                            Date: 2017.08.17
                                                                              09:06:52 -05'00'




             State Farm Fire & Casualty Co. v. John, 2017 IL App (2d) 170193



Appellate Court        STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-
Caption                Appellee, v. DAVID JOHN and WHEATON COLLEGE, Defendants
                       (David John, Defendant-Appellant; Wheaton College, Defendant-
                       Appellee).



District & No.         Second District
                       Docket No. 2-17-0193



Filed                  June 14, 2017



Decision Under         Appeal from the Circuit Court of Du Page County, No. 16-MR-1331;
Review                 the Hon. Bonnie M. Wheaton, Judge, presiding.



Judgment               Reversed and remanded.


Counsel on             Thomas R. Stilp and Elaine S. Vorberg, of Stilp Business Law P.C., of
Appeal                 Chicago, for appellant.

                       Christian M. Poland, of Bryan Cave LLP, of Chicago, for appellee
                       Wheaton College.

                       Michael C. Borders and Rosa M. Tumialan-Landy, of Dykema
                       Gossett PLLC, of Chicago, for other appellee.
     Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                                Justices McLaren and Burke concurred in the judgment and opinion.


                                                  OPINION

¶1         State Farm Fire & Casualty Company (State Farm) filed the instant action, seeking a
       declaratory judgment regarding its duties to defend and indemnify its insured, David John,
       against a lawsuit filed by Wheaton College. John filed an interlocutory appeal from an order
       denying his motion to stay the action, pending the resolution of the underlying litigation. For
       the reasons that follow, we reverse and remand.

¶2                                           I. BACKGROUND
¶3          On October 19, 2016, State Farm filed its amended complaint for a declaratory judgment,
       alleging as follows. John was insured under a personal-liability umbrella policy issued by State
       Farm. In August 2011, John filed a lawsuit against Wheaton College and others for public
       disclosure of private facts and tortious interference. In May 2012, Wheaton College filed a
       counterclaim, alleging defamation. In December 2012, the trial court in the underlying
       litigation dismissed John’s complaint, and Wheaton College voluntarily dismissed its
       counterclaim. In December 2013, Wheaton College filed a four-count complaint against John,
       alleging defamation per se, false light invasion of privacy, civil conspiracy, and malicious
       prosecution. Subsequently, this court reversed the trial court’s order dismissing John’s
       public-disclosure-of-private-facts claim, and that matter was remanded for further
       proceedings. See John v. Wheaton College, 2014 IL App (2d) 130524-U.
¶4          According to State Farm’s amended complaint for a declaratory judgment, John first
       notified State Farm of Wheaton College’s complaint on December 22, 2015. State Farm
       accepted John’s tender of defense subject to a reservation of rights. State Farm has, at all times,
       funded John’s defense through independent counsel. On February 9, 2016, the trial court in the
       underlying litigation sanctioned John for failing to comply with discovery obligations. State
       Farm attached a copy of that court order to its amended complaint. In relevant part, that order
       provided that “the claims of John *** against all parties are dismissed with prejudice”; “default
       judgment is granted against John on all of Wheaton College’s claims against him (in case no.
       2013 L 1179)”; and “a prove-up hearing [(on damages)] is set for March 15 at 1:30 p.m.” State
       Farm alleged in its amended complaint that John’s liability as to Wheaton College’s claims
       was thus established. When State Farm filed its amended complaint, the prove-up in the
       underlying litigation was scheduled for April 17, 2017.1
¶5          In count I of its amended complaint for a declaratory judgment, State Farm alleged that
       John failed to comply with the following notice provisions of the insurance policy:
                “In the event of a loss for which the policy may provide coverage, all insureds seeking
                coverage must:
                        1. Immediately notify us of such loss. The notice must give us:

             It appears from the parties’ briefs on appeal that the prove-up did not proceed in April 2017 and
             1

       that the trial court in the underlying litigation has not yet rescheduled those proceedings.

                                                      -2-
                           (a) reasonably available information on the time, place and circumstances
                      of the loss; and
                           (b) names and addresses of any claimants and witnesses; and
                           (c) the name of the insurer and identification number of any other policy
                      providing insurance;
                      2. Immediately notify us and any other insurer providing insurance of any claim
                  or suit filed against the insured and send us and such insurer every demand, notice,
                  summons and other process received related to the claim or suit.”
¶6        In count II of the amended complaint, State Farm alleged that John breached the policy’s
     cooperation clause, which required him to:
              “[A]t all times, help and cooperate with us and any other insurer providing insurance,
              and at our request, assist in:
                      (a) making settlement;
                      (b) the enforcement of any right of contribution or indemnity against a person
                  or organization who may be liable to the insured;
                      (c) the conduct of suits and attend depositions, hearings and trial;
                      (d) securing and giving evidence; and
                      (e) locating and getting witnesses to attend depositions, hearings and trials.”
     State Farm alleged that John breached his duty to cooperate by failing to comply with his
     discovery obligations in the underlying litigation, which prompted Wheaton College to file
     several motions and ultimately led the court to sanction John by entering a default judgment
     against him.
¶7        In count III, State Farm asserted that “[t]he Wheaton College complaint alleges that John
     knowingly made false and defamatory statements about Wheaton College and that he
     prosecuted a claim against Wheaton College for tortious interference without having any
     evidence to support the claim.” State Farm also maintained that, due to the default judgment
     against him, John was precluded from disputing Wheaton College’s allegations. Accordingly,
     State Farm alleged that John was not covered under the insurance policy, by reason of the
     policy’s intentional-conduct exclusion, which provided: “There is no coverage under this
     policy for any *** personal injury when the insured acts with specific intent to cause any
     harm.”
¶8        In all three counts of the amended complaint, State Farm prayed for a declaratory
     judgment, stating that (1) the policy does not provide coverage for the matters alleged by
     Wheaton College, (2) State Farm does not have a duty to defend John in the underlying
     litigation, and (3) State Farm does not have a duty to indemnify John for any judgment
     rendered in the underlying litigation.
¶9        John filed a motion to dismiss State Farm’s amended complaint pursuant to section 2-615
     of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)) or, in the alternative, to stay
     the proceedings. With respect to each count of the amended complaint, John argued that State
     Farm failed to state a claim upon which the duty to defend could be determined, no actual
     controversy existed, and a declaratory judgment would be inappropriate in that it would
     require a determination of ultimate facts in the underlying litigation. Specifically, John
     maintained that, under an “eight corners analysis” (i.e., comparing the underlying complaint’s
     allegations to the insurance policy), State Farm had a duty to defend him because Wheaton

                                                 -3-
       College’s malicious-prosecution claim potentially fell within the coverage provided by the
       policy. Moreover, John contended that there was no actual controversy between the parties,
       because State Farm’s request for a declaratory judgment regarding its duty to indemnify was
       premature until he is legally obligated to pay damages in connection with the underlying
       litigation.
¶ 10        With respect to his argument that entering a declaratory judgment would inappropriately
       require a determination of ultimate facts that needed to be decided in the underlying litigation,
       John suggested that a finding of specific intent in favor of State Farm in the declaratory
       judgment action would inure to Wheaton College’s benefit on its claim for damages in the
       underlying litigation. He noted that Wheaton College had recently filed a motion in the
       underlying litigation to take depositions in anticipation of the prove-up on damages, to explore
       issues surrounding his communications with another individual. According to John, the
       matters on which Wheaton College was currently seeking discovery in the underlying
       litigation pertained to the issues to be decided on counts II and III of State Farm’s amended
       complaint for a declaratory judgment.
¶ 11        In its response to John’s motion, State Farm insisted that there was indeed an actual
       controversy because, if State Farm no longer had a duty to defend John, then it would have no
       duty to indemnify him. State Farm also interpreted John’s “prematurity” argument as directed
       only to count III of the amended complaint. Addressing that argument, State Farm contended
       that the sanctions order entered against John in the underlying litigation “effectively
       adjudicate[d] all issues of liability—including the allegations of intentional conduct directed
       against John—in favor of Wheaton College.” Accordingly, State Farm proposed that it was
       entitled to rely on the sanctions order and that it did not have a continued obligation to defend
       John, due to the policy’s intentional-conduct exclusion. Alternatively, State Farm proposed
       holding count III of its amended complaint in abeyance while ordering John to answer counts I
       and II.
¶ 12        Wheaton College likewise disagreed with John’s request to stay the matter, maintaining
       that John’s liability in the underlying litigation had been established by the entry of the default
       judgment.2 Wheaton College further noted that the prove-up on damages in the underlying
       litigation was (at that point) set to proceed in April 2017. Accordingly, Wheaton College
       suggested that the trial court in this declaratory judgment action could not prematurely decide
       ultimate facts that could affect the underlying litigation.
¶ 13        In his reply brief in support of his motion to dismiss the amended complaint or,
       alternatively, to stay the action, John reiterated that there was no actual controversy as to any of
       the counts of State Farm’s amended complaint because (1) Wheaton College’s
       malicious-prosecution claim potentially triggered State Farm’s duty to defend and (2) if there
       was a duty to defend, then the issue of indemnification was premature until John is legally
       obligated to pay damages in the underlying litigation. He contended that State Farm could not
       rely on the default order in the underlying litigation, because it was “interlocutory and
       therefore subject to change during the proceedings in trial court [sic] or on appeal.”
       Additionally, John argued that the declaratory judgment action was premature because it

           Wheaton College moved to dismiss State Farm’s amended complaint for reasons different from
           2

       John’s. The trial court denied Wheaton College’s motion to dismiss, and that ruling is not at issue in this
       appeal.

                                                       -4-
       would require the court to determine ultimate facts that needed to be decided in the underlying
       litigation. Addressing State Farm’s suggestion that count III could be held in abeyance while
       counts I and II proceeded, John responded that this would “only exacerbate the problems cited
       by Illinois Courts in disallowing piecemeal litigation concerning defense and indemnity
       obligations.” Accordingly, he maintained that only dismissal of the complaint or a stay of the
       proceedings would be appropriate under the circumstances.
¶ 14        On February 14, 2017, the court denied John’s motion to dismiss and declined to stay the
       proceedings. The court explained that granting the motion to dismiss would require the court to
       decide the merits of State Farm’s amended complaint. The court acknowledged that this case
       was unique in that “one [sic] of the alleged grounds for the declaratory judgment arose during
       the pendency of the underlying case.” Nevertheless, the court believed that all three counts
       stated causes of action for a declaratory judgment. The court added: “Perhaps it is not
       incumbent on the Court to make a decision on all of those or any of them until the underlying
       case is resolved, but I believe that under the standards of 2-615 there is a cause of action stated
       for a declaratory judgment in each of the counts, so I will deny the motion.” The court later
       clarified that the request for a stay was denied “[w]ithout prejudice.” Specifically, the court
       explained: “I mean, if we get down the road and the matter is close to trial I will probably stay
       it until after the trial takes place. But that’s—Maybe I shouldn’t have even said that.”
¶ 15        John timely appealed the portion of the order denying his motion to stay the proceedings.
       See Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2016) (providing for appeals from interlocutory orders
       “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction”);
       Allianz Insurance Co. v. Guidant Corp., 355 Ill. App. 3d 721, 729 (2005) (order denying a
       motion for a partial stay was appealable pursuant to Rule 307(a)(1)).

¶ 16                                            II. ANALYSIS
¶ 17        John contends that the trial court erred in denying his motion to stay the proceedings in this
       declaratory judgment action, because (1) no actual controversy exists, as there has been no
       final judgment in the underlying litigation, and (2) the issues are not separable from the issues
       to be decided in the underlying litigation. Although we do not agree with all of John’s specific
       contentions, we conclude that the trial court erred in declining to stay the proceedings.
¶ 18        We review for an abuse of discretion the trial court’s decision to deny a stay. Allianz, 355
       Ill. App. 3d at 730. The question is not whether we agree or disagree with the trial court’s
       decision, but “whether the trial court acted arbitrarily without the employment of conscientious
       judgment or, in light of all the circumstances, exceeded the bounds of reason and ignored
       recognized principles of law so that substantial prejudice resulted.” Allianz, 355 Ill. App. 3d at
       730. “In determining whether to stay proceedings, the circuit court has discretion to consider
       factors such as the ‘orderly administration of justice and judicial economy,’ as well as its
       inherent authority to control the disposition of the cases before it.” TIG Insurance Co. v. Canel,
       389 Ill. App. 3d 366, 375 (2009) (quoting Estate of Bass v. Katten, 375 Ill. App. 3d 62, 68
       (2007)).
¶ 19        John notes that an action seeking a declaratory judgment must present an actual
       controversy. This means that “the underlying facts and issues of the case are not moot or
       premature, so as to require the court to pass judgment on mere abstract propositions of law,
       render an advisory opinion, or give legal advice as to future events.” Underground Contractors
       Ass’n v. City of Chicago, 66 Ill. 2d 371, 375 (1977). The case must “present a concrete dispute

                                                    -5-
       admitting of an immediate and definitive determination of the parties’ rights, the resolution of
       which will aid in the termination of the controversy or some part thereof.” Underground
       Contractors, 66 Ill. 2d at 375.
¶ 20       John insists that there is no actual controversy between the parties here. His argument is as
       follows. He claims that State Farm admits that it has a duty to defend him. Moreover, he notes
       that case law establishes that the duty to defend is broader than the duty to indemnify, which
       means that State Farm must defend the entire lawsuit if even one of Wheaton College’s claims
       against him is potentially covered. To that end, he contends that Wheaton College sued him for
       malicious prosecution and that the insurance policy obligates State Farm to provide a defense
       for claims of malicious prosecution. According to John, because State Farm’s duty to defend is
       apparent from comparing the complaint in the underlying litigation to the policy, the issue of
       indemnification is not ripe until he is legally obligated to pay damages in connection with the
       underlying litigation, and the declaratory judgment action should be stayed.
¶ 21       John’s analysis of the purported lack of an actual controversy is misguided. We note that,
       in support of his assertion that State Farm “admits” its duty to defend, John cites the following
       statement made by State Farm’s attorney at the hearing on the motion to dismiss the action or
       stay the proceedings: “State Farm acknowledges that it has a duty to defend, it pled that in
       its—and acknowledges duty [sic] to defend by alleging that it is defending subject to
       reservation.” However, John omits State Farm’s attorney’s very next statement: “That does not
       prohibit [State Farm] from now seeking a declaration that it has no longer the duty to defend
       due to the circumstances of the case as they have progressed in the tort case.” Case law indeed
       recognizes that an insurer may defend an action against its insured under a reservation of rights
       while concurrently pursuing a declaratory judgment action. Fidelity & Casualty Co. of New
       York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304 (1983). Furthermore, nothing in
       the record supports John’s assertion that State Farm “admits” that it currently has a duty to
       defend. To the contrary, the whole purpose of the present lawsuit is that State Farm believes
       that it does not have a duty to defend, both because of the insurance policy’s
       intentional-conduct exclusion and because of John’s behavior in connection with the
       underlying litigation. If State Farm is correct that it has no duty to defend John in the
       underlying litigation, then the issue of indemnification is ripe for adjudication. See Crum &
       Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 398 (1993) (the principle
       that any determination concerning an insurer’s duty to indemnify is premature until the insured
       incurs liability in the underlying litigation “is only operative in cases where the court has
       determined that the insurer’s duty to defend its insured has arisen”).
¶ 22       John argues that State Farm’s duty to defend is apparent when we compare the allegations
       of the complaint in the underlying litigation to the terms of his insurance policy. But even if
       State Farm’s coverage position is unsound, as John insists it is, that has nothing to do with
       whether there is an actual controversy between the parties. This is not the forum to decide
       whether State Farm is obligated to defend and indemnify John; such issues are far beyond the
       scope of this interlocutory appeal. See Canel, 389 Ill. App. 3d at 372 (when reviewing the trial
       court’s decision to grant or deny a motion to stay proceedings, the appellate court does not
       decide the merits of the case). Suffice it to say that State Farm believes that it has no obligation
       to defend or indemnify John, and that John believes otherwise. There is thus an actual
       controversy between the parties because there is a concrete dispute admitting of an immediate



                                                    -6-
       and definitive determination of the parties’ respective rights. See Underground Contractors,
       66 Ill. 2d at 375.
¶ 23        John next argues that the issues to be decided in this case are inseparable from the issues to
       be decided in the underlying litigation, so the trial court abused its discretion in denying his
       motion to stay the proceedings. John’s arguments invoke the “Peppers doctrine,” which is
       derived from Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187 (1976). “[U]nder the Peppers
       doctrine, it is generally inappropriate for a court considering a declaratory judgment action to
       decide issues of ultimate fact that could bind the parties to the underlying litigation.” Allstate
       Insurance Co. v. Kovar, 363 Ill. App. 3d 493, 501 (2006). The concern is that prematurely
       adjudicating such issues in the declaratory judgment action would result in collateral estoppel
       in the underlying litigation. Canel, 389 Ill. App. 3d at 373. The classic scenario is where an
       insured is sued and the allegations of the complaint potentially fall within the scope of the
       insurance policy, thus triggering the insurer’s duty to defend, but the insurer denies coverage
       based on an intentional-injury exclusion in the policy. Courts have explained that, in such
       circumstances, the issue of the insured’s intent should be litigated in the underlying tort action,
       not the declaratory judgment action. See, e.g., Peppers, 64 Ill. 2d at 197; Thornton v. Paul, 74
       Ill. 2d 132, 159 (1978), overruled in part on other grounds by American Family Mutual
       Insurance Co. v. Savickas, 193 Ill. 2d 378, 387 (2000); Landmark American Insurance Co. v.
       NIP Group, Inc., 2011 IL App (1st) 101155, ¶ 62.
¶ 24        In count III of its amended complaint, State Farm alleged that it owed no duty to defend or
       indemnify John because the policy provided that there was no coverage for “any *** personal
       injury when the insured acts with specific intent to cause any harm.” This would appear to be a
       textbook example of a situation where it would be appropriate to apply the rationale of Peppers
       and stay the claim until the underlying litigation is resolved. The wrinkle here—and what State
       Farm and Wheaton College contend distinguishes this case from Peppers—is that John has
       been defaulted in the underlying litigation, and the only remaining matter is the prove-up on
       damages. State Farm and Wheaton College thus argue that liability in the underlying litigation
       has been determined. Wheaton College goes so far as to assert, without citing any authority,
       that “the entry of default is final, and default established John’s complete liability in the
       Underlying Case.”
¶ 25        The concerns raised by the court in Peppers apply with equal force in the present case. So
       long as the sanctions entered against John remain interlocutory, we cannot accept State Farm’s
       and Wheaton College’s contentions that the issue of John’s liability has been “settled” or
       “established.” The sanctions order in the underlying litigation was not a final order because the
       court did not enter a money judgment against John, but instead continued the matter for a
       prove-up on damages. See Hall v. Jacobs, Camodeca & Timpone, 134 Ill. App. 3d 516, 520
       (1985) (default order as to liability alone, entered as a discovery sanction, was an interlocutory
       discovery order). “A default judgment is comprised of two factors: ‘(1) a finding of the issues
       for the plaintiff; and (2) an assessment of damages.’ ” Jackson v. Hooker, 397 Ill. App. 3d 614,
       620-21 (2010) (quoting Wilson v. TelOptic Cable Construction Co., 314 Ill. App. 3d 107, 112
       (2000)). Importantly, neither the parties nor this court have any way of predicting what lies
       ahead in the underlying litigation. While we, of course, express no opinion as to the propriety
       of the order defaulting John in the underlying litigation, it is certainly possible that the trial
       court (or even a different judge of the trial court) could reverse the sanction. See Hall, 134 Ill.



                                                    -7-
       App. 3d at 519 (one judge entered a default order against the defendants as a sanction, but
       another judge vacated that order).
¶ 26       The potential problems here are obvious. Imagine that the trial court in this declaratory
       judgment action makes a finding in State Farm’s favor on count III of the amended
       complaint—i.e., the court finds that, due to John’s default in the underlying litigation, he acted
       with specific intent to cause harm to Wheaton College, such that State Farm does not have a
       duty to defend or indemnify. What happens if the trial court in the underlying litigation
       subsequently vacates the interlocutory sanctions order? In that situation, the finding here that
       John acted with specific intent could affect the underlying litigation. Pursuant to the Peppers
       doctrine, that is an unacceptable possibility. Under these circumstances, any suggestion by
       State Farm or Wheaton College that the concerns of Peppers do not apply here because
       liability has been determined is unpersuasive.
¶ 27       Moreover, we find this case to be factually distinguishable from Allianz, upon which
       Wheaton College relies. In Allianz, although underlying litigation was pending against the
       insured at the time of the appeal in the declaratory judgment action, there was no question as to
       whether the insured’s conduct was intentional, given that its subsidiary had admitted in a
       federal plea agreement to having engaged in intentional conduct. Allianz, 355 Ill. App. 3d at
       733. Here, John has not entered any such plea agreement, and the default order entered against
       him in the underlying litigation is interlocutory. For all of these reasons, we conclude that
       adjudicating count III of State Farm’s amended complaint would improperly require the trial
       court to decide issues of ultimate fact that could bind the parties to the underlying litigation.
       See Kovar, 363 Ill. App. 3d at 501.
¶ 28       Count II of State Farm’s amended complaint alleges a failure to cooperate. We agree with
       State Farm and Wheaton College that this count does not raise a Peppers problem, inasmuch as
       John’s failure to comply with his discovery obligations has nothing to do with the issues that
       the fact-finder will have to decide in the underlying litigation. However, like count III, count II
       does raise other concerns about prematurity. The sole basis for State Farm’s
       failure-to-cooperate allegations is that John engaged in conduct that led to his default in the
       underlying litigation. So long as the sanctions order remains interlocutory, it would be
       premature for the trial court in this action to determine State Farm’s obligations to John based
       on that order.
¶ 29       On the other hand, count I of State Farm’s amended complaint, which alleges that John
       failed to provide timely notice of the underlying litigation, would not require the trial court to
       decide issues of ultimate fact that could bind the parties to the underlying litigation. See
       Brotherhood Mutual Insurance Co. v. Roseth, 177 Ill. App. 3d 443, 452 (1988) (the trial court
       in a declaratory judgment action had the authority to determine whether the insured provided
       timely notice to the insurer, because that issue was “separable from the issues in the underlying
       personal injury action”). Furthermore, unlike counts II and III, count I of State Farm’s
       amended complaint does not depend on any interlocutory rulings in the underlying litigation.
¶ 30       Two of State Farm’s three claims are thus premature. Several factors lead us to conclude
       that it is appropriate to stay the entire action until the underlying litigation is resolved. We note
       that the declaratory judgment statute is not “intended to facilitate piecemeal litigation.” The
       Carle Foundation v. Cunningham Township, 2017 IL 120427, ¶ 34. Additionally, as State
       Farm and Wheaton College have emphasized in their briefs, the only matter currently pending
       in the underlying litigation is the prove-up on damages. Accordingly, it seems likely that the

                                                     -8-
       trial court proceedings in the underlying litigation will conclude relatively soon. Finally, in
       explaining its ruling on the motion to stay the proceedings, even the trial court in this
       declaratory judgment action apparently recognized that the proceedings would eventually have
       to be stayed. Specifically, the court denied the motion to stay “[w]ithout prejudice,” adding: “I
       mean, if we get down the road and the matter is close to trial I will probably stay it until after
       the trial takes place.” During the hearing, the court also recognized that “[p]erhaps it is not
       incumbent on the Court to make a decision on all of those [counts] or any of them until the
       underlying case is resolved.” Under the unique circumstances of this case, we hold that it is
       appropriate to stay all proceedings in this matter pending the resolution of the underlying
       litigation.

¶ 31                                       III. CONCLUSION
¶ 32      For the reasons stated, we reverse the judgment of the circuit court of Du Page County and
       remand the matter to the trial court.

¶ 33      Reversed and remanded.




                                                   -9-
