                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




   Illinois State Bar Ass’n Mutual Insurance Co. v. Cavenagh, 2012 IL App (1st) 111810




Appellate Court            ILLINOIS STATE BAR ASSOCIATION MUTUAL INSURANCE
Caption                    COMPANY, Plaintiff-Appellee, v. TIMOTHY J. CAVENAGH,
                           Defendant-Appellant.


District & No.             First District, Fourth Division
                           Docket No. 1-11-1810


Rule 23 Order filed        November 1, 2012
Rule 23 Order
withdrawn                  December 13, 2012
Opinion filed              December 20, 2012


Held                       Summary judgment was properly entered for plaintiff legal malpractice
(Note: This syllabus       insurer in an action seeking a declaration that plaintiff did not have to
constitutes no part of     provide a defense for a third-party complaint against plaintiff’s insured
the opinion of the court   arising from an underlying personal injury action brought by the insured,
but has been prepared      since the allegations in the third-party complaint were not within or
by the Reporter of         potentially within the coverage of the malpractice policy, the insured’s
Decisions for the          counterclaim under section 155 of the Insurance Code was properly
convenience of the         denied, and an order barring the insured from further discovery was
reader.)
                           upheld.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CH-44982; the
Review                     Hon. William O. Maki and the Hon. Sebastian T. Patti, Judges, presiding.



Judgment                   Affirmed.
Counsel on                 Peter V. Bustamante, of Chicago, for appellant.
Appeal
                           Robert Marc Chemers and Adrian T. Rohrer, both of Pretzel & Stouffer
                           Chtrd., of Chicago, for appellee.


Panel                      JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                           Justices Quinn and McBride concurred in the judgment and opinion.


                                             OPINION

¶1          Illinois State Bar Association Mutual Insurance Company brought an action for
        declaratory judgment against its insured, Timothy J. Cavenagh, seeking a declaration that
        Cavenagh’s professional liability insurance policy did not require ISBA Mutual to defend
        Cavenagh against a claim brought by a fellow attorney, Richard Bogusz. In response,
        Cavenagh claimed that ISBA Mutual was required to defend Cavenagh against Bogusz’s
        complaint, and in a four-count counterclaim, he alleged breach of contract and tort claims
        based on ISBA Mutual’s refusal to defend. The circuit court dismissed the counterclaim and
        granted summary judgment in favor of ISBA Mutual, and Cavenagh now appeals. For the
        reasons that follow, we affirm.
¶2          This insurance coverage dispute began with a personal injury suit filed by Steven Spilotro
        against Ken Joniak and another defendant. Spilotro was represented by Timothy Cavenagh,
        and both defendants were represented by Richard Bogusz. That suit ended in a default
        judgment award of $900,000 against Joniak. The default judgment gave rise to a second suit:
        Joniak filed a malpractice claim against Bogusz, claiming that Bogusz failed to appear or
        adequately represent him. Bogusz asked his professional liability insurance carrier, ISBA
        Mutual, to defend against Joniak’s claims. ISBA Mutual assigned the law firm of Konicek
        and Dillon to defend Bogusz.
¶3          Bogusz later filed a third-party complaint against Cavenagh and Spilotro for fraud and
        conspiracy to commit fraud, alleging that Cavenagh had advanced Spilotro’s personal injury
        claim while misrepresenting the status of the suit to Bogusz to mislead him from taking
        further action to defend the case. Bogusz specifically alleged that Cavenagh, without
        revealing that a trial date had been set, told Bogusz that he did not plan to proceed with the
        case and that the case would settle for a small amount. Bogusz also alleged that Cavenagh
        and Spilotro misled the court to procure an inflated default judgment award. Bogusz further
        claimed that Cavenagh and Joniak agreed to file a malpractice suit so that Joniak could
        recover money to satisfy the judgment against him.
¶4          Cavenagh presented Bogusz’s third-party complaint to his malpractice insurer, ISBA
        Mutual, and requested representation. Cavenagh’s professional liability policy required ISBA
        Mutual to defend Cavenagh for any claim “aris[ing] out of a wrongful act.” The policy
        defined the term “wrongful act”:

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              “1. Any actual or alleged negligent act, error or omission in the rendering of or failure
         to render PROFESSIONAL SERVICES, including PERSONAL INJURY committed by
         the INSURED in the course of rendering PROFESSIONAL SERVICES; or
              2. Any actual or alleged negligent act, error or omission in an INSURED’S capacity
         as a director or officer of any bar related professional legal association or the governing
         board thereof.”
     The policy also excluded from coverage any claim “arising out of any criminal, dishonest,
     fraudulent, or intentional act or omission committed by any of the INSURED.” After
     Cavenagh tendered his defense, ISBA Mutual refused to defend Cavenagh because, in ISBA
     Mutual’s view, the complaint did not allege a “wrongful act” as defined by the policy, and
     claims based on the insured’s fraudulent or intentional acts were specifically excluded from
     coverage.
¶5       ISBA then sought a declaratory judgment that it did not owe any duty to defend
     Cavenagh against the third-party complaint. Cavenagh filed an answer, counterclaim, and
     affirmative defense. Cavenagh alleged that the lawyer ISBA assigned to defend Bogusz
     against Joniak’s malpractice suit was “the agent of Bogusz and ISBA Mutual.” Cavenagh
     further alleged that the third-party complaint against him was obviously frivolous, crafted
     by ISBA Mutual and Bogusz’s lawyer, Konicek, so that it could justifiably deny coverage
     for Bogusz’s suit. The counterclaim alleged that the purpose of the third-party complaint was
     to wrongfully exert pressure on Cavenagh and Spilotro to settle their claim against Joniak
     for less than the full value, which would limit ISBA Mutual’s financial exposure in the
     malpractice case against Bogusz. Cavenagh raised four counts against ISBA Mutual in his
     counterclaim: breach of contract, breach of fiduciary duty, civil conspiracy, and vexatious
     and unreasonable conduct in violation of section 155 of the Illinois Insurance Code
     (Insurance Code) (215 ILCS 5/155 (West 2008)). As to the affirmative defense, Cavenagh
     alleged that ISBA Mutual should be “estopped” from raising any policy defenses against
     Cavenagh because ISBA had “agreed, consented to, and, ordered” the frivolous third-party
     complaint against Cavenagh.
¶6       The circuit court granted ISBA Mutual’s motion to dismiss the counterclaim and strike
     the affirmative defense. The court dismissed the breach of fiduciary duty and conspiracy
     counts with prejudice, but dismissed the breach of contract and section 155 counts with leave
     to amend. Cavenagh filed an amended counterclaim, which the circuit court dismissed with
     prejudice.
¶7       Cavenagh then filed a motion for leave to file a second amended counterclaim, restating
     his breach of contract claim based on “new facts,” specifically, that the circuit court hearing
     the malpractice case against Bogusz dismissed Bogusz’s third-party complaint against
     Cavenagh. The court denied Cavenagh’s motion for leave to file a second amended
     counterclaim. Cavenagh also served ISBA Mutual with a request to produce over 60
     categories of documents and records, along with 23 interrogatories. ISBA Mutual moved for
     a protective order, arguing that the requested discovery was irrelevant to whether ISBA
     Mutual had a duty to defend Cavenagh. The circuit court granted the motion for protective
     order.


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¶8          ISBA Mutual moved for summary judgment. Cavenagh then issued additional discovery,
       but the court again granted ISBA Mutual’s motion for a protective order. Cavenagh then
       moved to reset the briefing schedule for the summary judgment motion; he attached an
       Illinois Supreme Court Rule 191(b) (eff. July 1, 2002) affidavit in support of his motion,
       averring that he could not respond until he was allowed to obtain additional discovery. The
       court denied Cavenagh’s motion for discovery supported by the Rule 191(b) affidavit.
       Cavenagh then responded to ISBA Mutual’s motion for summary judgment, attaching a
       Supreme Court Rule 191(a) affidavit in support. The circuit court struck Cavenagh’s Rule
       191(a) affidavit for failure to allege specific facts within Cavenagh’s personal knowledge.
       The court granted ISBA Mutual’s motion for summary judgment, finding that ISBA Mutual
       had no duty to defend Cavenagh. This appeal followed.

¶9                                         ANALYSIS
¶ 10       Cavenagh raises several issues on appeal, which can be grouped into three general
       categories: (1) the parties’ claims as to ISBA Mutual’s obligations under the policy; (2)
       Cavenagh’s tort counterclaims; and (3) limitations on discovery prior to the summary
       judgment ruling in favor of ISBA Mutual.

¶ 11                                 Claims Based on the Policy
¶ 12       The construction of an insurance policy raises a question of law, which we review de
       novo. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).
       Because an insurance policy is a contract, the rules applicable to contract interpretation
       govern the interpretation of an insurance policy. Founders Insurance Co. v. Munoz, 237 Ill.
       2d 424, 433 (2010). The primary function of the court is to ascertain and enforce the
       intentions of the parties as expressed in the agreement. Id.
¶ 13       The court confronted the question of coverage under the policy in dismissing Cavenagh’s
       breach of contract counterclaim under section 2-615 of the Code of Civil Procedure (735
       ILCS 5/2-615 (West 2008)) and in granting summary judgment to ISBA Mutual on its
       declaratory judgment action. In reviewing a section 2-615 dismissal, we consider whether
       the allegations, construed in the light most favorable to the plaintiff, are sufficient to
       establish a cause of action upon which relief may be granted. Chandler v. Illinois Central
       R.R. Co., 207 Ill. 2d 331, 348 (2003). However, a plaintiff cannot rely simply on mere
       conclusions of law or fact unsupported by specific factual allegations. Jackson v. South
       Holland Dodge, Inc., 197 Ill. 2d 39, 52 (2001). We review a section 2-615 dismissal de novo.
       Id. A motion for summary judgment is properly granted only when the pleadings,
       depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any
       material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2008). We review the court’s summary judgment ruling de novo.
       Travelers, 197 Ill. 2d at 292.
¶ 14       To determine whether an insurer has a duty to defend the insured, the court must compare
       the allegations in the underlying complaint to the relevant provisions of the insurance policy.
       Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125 (1992). “The

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       allegations in the underlying complaint must be liberally construed in favor of the insured.”
       Id. “The insurer justifiably refuses to defend the insured if it is clear from the face of the
       underlying complaint that the allegations fail to state facts which bring the cause within or
       potentially within coverage.” Certain Underwriters at Lloyd’s, London v. Boeing Co., 385
       Ill. App. 3d 23, 39 (2008) (citing Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill.
       2d 433, 439 (1994)). “[L]ittle weight is given to the legal label that characterizes the
       allegations of the underlying complaint; rather, the determination focuses on whether the
       alleged conduct arguably falls within at least one of the categories of wrongdoing listed in
       the policy.” Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032,
       1037 (2009); see also International Insurance Co. v. Rollprint Packaging Products, Inc., 312
       Ill. App. 3d 998, 1007 (2000) (“[T]he duty to defend does not require that the complaint
       allege or use language affirmatively bringing the claims within the scope of the policy.”).
¶ 15        We begin with the policy language. The policy required ISBA Mutual to defend any
       claim that “arises out of a wrongful act.” The policy defines “wrongful act” as “any actual
       or alleged negligent act, error or omission in the rendering of or failure to render
       PROFESSIONAL SERVICES, including PERSONAL INJURY committed by the
       INSURED in the course of rendering PROFESSIONAL SERVICES.” The policy also
       excludes coverage for any claim “arising out of any criminal, dishonest, fraudulent, or
       intentional act or omission committed by any of the INSURED.”
¶ 16        This court has addressed a nearly identical policy provision in Illinois State Bar Ass’n
       Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032 (2009). In that case, the policy
       covered claims arising out of a “ ‘wrongful act,’ ” which was defined to mean “ ‘any actual
       or alleged negligent act, error, or omission in the rendering or failure to render
       PROFESSIONAL SERVICES.’ ” Mondo, 392 Ill. App. 3d at 1038. The court determined
       that the insurer had no duty to defend where “the factual allegations in the *** underlying
       action [made] clear that [the insured’s] failure to disclose information was allegedly part of
       his overall scheme to mislead and defraud the Insurance Trust and not based upon any
       negligent or potentially negligent conduct.” Id. at 1039. The court also noted that even
       assuming the complaint could somehow be construed to allege negligent acts, the fraud count
       within the complaint would be excluded from coverage based on the policy’s exclusion for
       any claims arising from “fraudulent” acts. Id. at 1039-40. Mondo is in line with a number of
       other decisions in Illinois interpreting similar policy language. See, e.g., United Fire &
       Casualty Co. v. Jim Maloof Realty, Inc., 105 Ill. App. 3d 1048, 1048-50 (1982) (denying
       coverage for intentional misrepresentation where policy covered “negligent act or omission”
       of the insured but did not apply to “dishonesty, intentional fraud, criminal or malicious act”);
       International Insurance Co. v. Allied Van Lines, Inc., 293 Ill. App. 3d 513, 519 (1997)
       (denying coverage for intentional termination of employee benefits).
¶ 17        Without addressing any of these cases, Cavenagh argues that we should look to the
       dictionary definition of “wrongful act” to determine the meaning of the policy. He cites
       definitions that do not specifically mention “negligence,” and then argues that “[i]f ISBA
       Mutual intended to limit coverage under the policy to only negligence, it could have easily
       done so.” The problem with this argument is that ISBA did limit the policy to negligent acts,
       errors, and omissions by defining the term “wrongful act.” Where the policy specifically

                                                 -5-
       defines “wrongful act,” we are not at liberty to search for other possible definitions in order
       to “create an ambiguity where none exists.” Dixon Distributing Co. v. Hanover Insurance
       Co., 161 Ill. 2d 433, 441 (1994). To do so would thwart the plain language of the policy and
       the intent of the parties.
¶ 18        Cavenagh next claims that the phrase “negligent act, error or omission” should be read
       so that the word “negligent” only modifies “act” and not “error” or “omission.” In other
       words, Cavenagh argues that the policy covers negligent acts, intentional errors, and
       intentional omissions. We have little to add to the rejection of this same argument in TIG
       Insurance Co. v. Joe Rizza Lincoln-Mercury, Inc., No. 00 C 5182, 2002 WL 406982 (N.D.
       Ill. Mar. 14, 2002). There, the court reasoned that “[i]t would be illogical for an endorsement
       to limit coverage to negligent acts, but to provide coverage for intentional omissions or
       errors.” Id. at *9. The court also cited Illinois appellate court cases interpreting the “very
       common” phrase, noting that those courts “have assumed, without deciding, that ‘negligent’
       modifies act, error, and omission and thus excluded coverage for intentional conduct.” Id.
       (citing United Fire, 105 Ill. App. 3d at 1048, and International Insurance, 293 Ill. App. 3d
       at 519); see also Mondo, 392 Ill. App. 3d at 1038-39. If there were any doubt, the policy here
       specifically excludes coverage for “intentional acts.” Indeed, adopting Cavenagh’s
       interpretation of the phrase “negligent act, error or omission” would set two provisions of
       the policy in conflict. Reading the definition of “wrongful act” along with the exclusion for
       fraudulent and intentional acts, we conclude that ISBA Mutual’s duty to defend is only
       triggered by allegations that the insured has committed an act of negligence, not an act
       classified as intentional.
¶ 19        We turn to the third-party complaint against Cavenagh and Spilotro. The complaint
       contains two counts: one for “fraud” and one for “conspiracy.” In support of these claims,
       the complaint first alleges a series of intentional misrepresentations in a scheme to defraud
       Bogusz and the court in order to obtain a default judgment against Joniak: (1) Cavenagh
       made “intentional misrepresentation[s] of the status of the underlying lawsuit” to Bogusz “to
       mislead him from taking further action to defend the case”; (2) Cavenagh “knew that telling
       Bogusz that he did not plan to proceed with case when a trial date had been obtained by him
       when made and was made with the intent to mislead Bogusz”; and (3) Cavenagh
       “intentionally misrepresented to the Court at the [default judgment] prove-up hearing that
       Spilotro’s injuries *** were much worse than [Spilotro’s] medical records” demonstrated.
       The complaint alleges a second, related scheme, in which Cavenagh “recruited the aid” of
       Joniak and entered into an unwritten agreement with him (after the limitations period had run
       for challenging the default judgment) “to avoid a meritorious challenge by Joniak to the
       fraudulent *** underlying default judgment.” Then, the complaint alleges that Joniak, still
       working in concert with Cavenagh, filed a malpractice suit so that Joniak could recover
       money to satisfy the default judgment. As ISBA Mutual points out, Cavenagh’s actions are
       described as “intentional” six times, and the word “fraud” is also used at least six times to
       characterize Cavenagh’s supposedly deliberate efforts. These allegations, when construed
       liberally in favor of Cavenagh, do not come close to alleging negligent acts. See, e.g.,
       Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 761 (2005) (finding that
       policy excluded coverage for intentional conduct and complaint alleged a “scheme to mislead

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       and defraud”); Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic
       Surgeons, 315 Ill. App. 3d 552, 563-64 (2000) (finding no coverage for complaint alleging
       conspiracy to “conceal” and “fail[ ] to disclose” where policy excluded coverage for
       intentional acts).
¶ 20       We note that the weakness of the coverage claim in this case stems from the theory that
       Cavenagh advanced in his counterclaim. The crux of Cavenagh’s claim is not that ISBA was
       wrong to deny coverage because the underlying complaint alleged negligent acts covered by
       the policy. Instead, Cavenagh argues that the complaint against Cavenagh was “obviously
       false and frivolous” and the allegations within it were “woefully deficient to support a claim
       of fraud.” The problem is that the false or frivolous nature of the third-party complaint does
       nothing to advance the duty-to-defend claim. As a general matter, when the underlying
       complaint alleges facts within or potentially within the policy’s coverage, the insurer’s duty
       to defend arises even if the allegations are groundless, false or fraudulent. General Agents
       Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 155 (2005).
       In this case, the policy imposes a duty to defend “even if any of the allegations of the suit ***
       are groundless, false or fraudulent.” Cavenagh’s argument implies that an insurer must
       defend a complaint’s false or frivolous allegations, regardless of whether the allegations
       otherwise come with the policy’s coverage. But “[t]he duty to defend does not depend on the
       probability of recovery.” Rollprint Packaging, 312 Ill. App. 3d at 1007. It is the nature of the
       allegations in the underlying complaint that control, not their likelihood of success. Where
       the facts alleged, even if false or groundless, are not within or potentially within the policy’s
       language, the insurer has no duty to defend.
¶ 21       On appeal, Cavenagh raises two additional arguments relevant to the breach of contract
       claim, both of which focus on the dismissal of Bogusz’s third-party complaint against
       Cavenagh in the Joniak suit. The circuit court first dismissed Bogusz’s complaint without
       prejudice under section 2-615 because the complaint “lack[ed] the requisite factual
       specificity necessary to allege all of the elements of fraud and conspiracy.” The court then
       dismissed Bogusz’s amended complaint against Cavenagh with prejudice under section 2-
       619, ruling that the action against Cavenagh was untimely.
¶ 22       Cavenagh first claims that the court in the Joniak case found that the “third-party
       complaint against Cavenagh did not allege fraud,” and as a result ISBA Mutual is “precluded
       by res judicata from relying on the fraud exclusion in the policy.” We disagree. The doctrine
       of res judicata will only bar a subsequent action between the same parties or their privies
       where “an identity of cause of action” exists between the two actions. Hudson v. City of
       Chicago, 228 Ill. 2d 462, 467 (2008). There is simply no “identity of cause of action”
       between the Bogusz third-party complaint and this action. Cavenagh misstates the court’s
       ruling in dismissing Bogusz’s complaint; the circuit court never concluded that the complaint
       “did not allege fraud.” In fact, the court did not even rule on the sufficiency of the allegations
       in Bogusz’s amended third-party complaint. Moreover, this argument confuses the
       sufficiency of the allegations in Bogusz’s complaint with the nature of those allegations. The
       court’s ruling as to the specificity of allegations in the Bogusz suit (much less a ruling as to
       the timeliness of suit) says nothing about whether ISBA Mutual’s policy covers the
       allegations in Bogusz’s complaint.

                                                  -7-
¶ 23        Cavenagh next argues that the circuit court wrongly denied his motion for leave to file
       a second amended counterclaim, restating the count for breach of contract. The decision
       whether to allow or deny an amendment is a matter within the circuit court’s discretion, and
       we will reverse only if the circuit court abused its discretion. Seitz-Partridge v. Loyola
       University of Chicago, 409 Ill. App. 3d 76, 86 (2011). In determining whether the court
       abused its discretion, we weigh the following factors: (1) whether the proposed amended
       complaint would cure defective pleadings; (2) whether the amendment would surprise or
       prejudice the opposing party; (3) whether the amendment was timely filed; and (4) whether
       the movant had previous opportunities to amend. Id. In this particular case, the first factor
       is dispositive. The sole basis for Cavenagh’s second amendment to his counterclaim was the
       circuit court order dismissing Bogusz’s third-party complaint, yet the amendment does
       nothing to cure the defects in the breach of contract claim. On appeal, Cavenagh argues that
       the dismissal of the third-party complaint “was the law of the case with respect to the third-
       party complaint.” This argument, like the res judicata argument, wrongly assumes that ISBA
       Mutual’s duty to defend rises and falls with the sufficiency of the pleading of the Bogusz
       complaint. As we have explained above, that is not the test for coverage. The court did not
       abuse its discretion in denying Cavenagh’s motion for leave to file a second amended
       counterclaim.
¶ 24        Having found that the policy did not impose a duty to defend against the Bogusz suit, we
       conclude that the circuit court properly granted summary judgment to ISBA Mutual. We also
       affirm the dismissal of Cavenagh’s breach of contract counterclaim. As with the duty to
       defend claim, all of Cavenagh’s alleged breaches of the policy–failure to adequately
       investigate the claims, failure to independently review the claims, failure to defend when it
       knew or should have known that the allegations were false–presuppose coverage under the
       policy. For example, the “failure to investigate” claim assumes that if ISBA Mutual had
       investigated, it would have discovered that the complaint in fact alleged a “negligent act,
       error or omission” covered by the policy. The circuit court properly dismissed the breach of
       contract counterclaim.

¶ 25                         Section 155 Claim and Estoppel Claim
¶ 26       Cavenagh’s counterclaim also alleged that ISBA Mutual violated section 155 of the
       Insurance Code (215 ILCS 5/155 (West 2008)). Section 155 allows for “an extracontractual
       remedy” of attorney fees and costs for an insurer’s “unreasonable and vexatious” refusal to
       comply with its policy obligations. Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513,
       523-24 (1996); 215 ILCS 5/155(1) (West 2008). But “[w]here the policy does not apply,
       there can be no finding that the insurer acted vexatiously and unreasonably [in denying a
       claim].” American Family Mutual Insurance Co. v. Fisher Development, Inc., 391 Ill. App.
       3d 521, 533 (2009); see also State Farm Mutual Automobile Insurance Co. v. Smith, 197 Ill.
       2d 369, 380 (2001) (“[W]here a bona fide dispute concerning coverage exists, costs and
       sanctions [under section 155] are inappropriate.”); Liberty Mutual Insurance Co. v. American
       Home Assurance Co., 368 Ill. App. 3d 948, 962 (2006) (finding that insurer’s conduct was
       not vexatious or unreasonable where insurer denied coverage based on exclusion that court
       later determined was applicable). The policy here did not cover Bogusz’s claim, and

                                                -8-
       Cavenagh’s section 155 claim therefore was properly dismissed.
¶ 27       Cavenagh next argues that the circuit court erred in striking his affirmative defense for
       estoppel. A motion to strike an affirmative defense admits all well-pleaded facts constituting
       the defense, together with all reasonable inferences that may be drawn therefrom, and raises
       only a question of law as to the sufficiency of the pleading. Bank of America, N.A. v. 108 N.
       State Retail LLC, 401 Ill. App. 3d 158, 170 (2010). A court must consider whether the
       defendant has alleged facts sufficient to constitute a legally cognizable defense. Id.
¶ 28       “The general rule of estoppel provides that an insurer which takes the position that a
       complaint potentially alleging coverage is not covered under a policy that includes a duty to
       defend may not simply refuse to defend the insured.” Employers Insurance of Wausau v.
       Ehlco Liquidating Trust, 186 Ill. 2d 127, 150 (1999). The insurer has two options: (1) defend
       the suit under a reservation of rights, or (2) seek a declaratory judgment that there is no
       coverage. Id. “If the insurer fails to take either of these steps and is later found to have
       wrongfully denied coverage, the insurer is estopped from raising policy defenses to
       coverage.” Id. at 150-51.
¶ 29       In this case, after ISBA Mutual refused to defend Cavenagh, it avoided any claim of
       estoppel by seeking a declaration that there was no coverage for the Bogusz suit. In any
       event, our supreme court has made clear that “[the] estoppel doctrine applies only where an
       insurer has breached its duty to defend” and “[a]pplication of the estoppel doctrine is not
       appropriate if the insurer had no duty to defend.” Id. at 151. Where we have affirmed the
       circuit court’s determination that ISBA Mutual had no duty to defend under the policy, we
       find no error in the circuit court’s decision to strike Cavenagh’s estoppel defense.

¶ 30                               Cavenagh’s Tort Counterclaims
¶ 31                                   Breach of Fiduciary Duty
¶ 32       Cavenagh argues that it was error for the circuit court to dismiss his breach of fiduciary
       duty claim. While it is settled law that “no fiduciary relationship exists between an insurer
       and an insured as a matter of law” (Martin v. State Farm Mutual Automobile Insurance Co.,
       348 Ill. App. 3d 846, 850-51 (2004)), Cavenagh argues that a fiduciary duty arose out of
       special circumstances of his relationship with ISBA Mutual. A fiduciary duty by “special
       relationship” may arise where “one party places trust and confidence in another, thereby
       placing the latter party in a position of influence and superiority over the former.” Id. at 851;
       Fichtel v. Board of Directors of the River Shore of Naperville Condominium Ass’n, 389 Ill.
       App. 3d 951, 963 (2009). “ ‘This position of superiority may arise by reason of friendship,
       agency, or experience.’ ” Fichtel, 389 Ill. App. 3d at 962 (quoting Connick v. Suzuki Motor
       Co., 174 Ill. 2d 482, 500 (1996)).
¶ 33       The complaint does not allege, even in a conclusory fashion, that a special relationship
       existed between Cavenagh and ISBA Mutual. There is a single allegation in support of the
       existence of a fiduciary duty: “As a result of the relationship between ISBA Mutual and
       Cavenagh, where Cavenagh was not only an insured but also a potential defendant, ISBA
       Mutual owed a fiduciary duty to Cavenagh.” Asserting that there is an insurer-insured
       relationship does not satisfy the standards for pleading a fiduciary duty by virtue of a special

                                                 -9-
       relationship. “[T]he mere fact that a contract of insurance *** existed between the parties is
       insufficient to support a finding of a fiduciary relationship.” Martin, 348 Ill. App. 3d at 851;
       see also Ransom v. A.B. Dick Co., 289 Ill. App. 3d 663, 672 (1997) ( “[O]rdinarily in a
       business transaction each party guards his own interests and no fiduciary duty exists.”).
¶ 34       The complaint is also devoid of any factual allegations that Cavenagh placed trust and
       confidence in ISBA Mutual by reason of friendship, agency, or experience. On appeal,
       Cavenagh claims that he “trusted that ISBA Mutual would never allow a frivolous third-party
       complaint to be filed against him because they [sic] knew he was also insured by ISBA
       Mutual,” but this is nothing more than saying that the insurer-insured relationship existed.
       Cavenagh also argues that he trusted ISBA Mutual to “protect his financial well-being” and
       otherwise perform its duties under the policy. There are no specific factual allegations,
       however, giving rise to a relationship of trust or confidence. Nor would a bare allegation of
       trust be sufficient to state a cause of action. In Martin, for example, the court considered the
       insured’s allegation that “trust” was placed in the insurer because the insurer told the insured
       that it would “take care of” the claim. Martin, 348 Ill. App. 3d at 850. The court noted that
       “[t]here [were] no allegations of a history of dealings or long-standing relationship between
       the parties, or that plaintiffs had entrusted the handling of their insurance affairs to [the
       insurer] in the past, or that [the insurer] was in a position of such superiority and influence
       by reason of friendship, agency, or experience.” Id. at 851-52; see also Magna Bank of
       Madison County v. Jameson, 237 Ill. App. 3d 614, 619 (1992) (“The degree of trust and
       confidence can be established by the following factors: degree of kinship, age disparity,
       health, mental condition, education, business experience between the parties, and the extent
       of the reliance.”).
¶ 35       Furthermore, even assuming that Cavenagh placed his trust in ISBA Mutual, there are
       no allegations from which we could infer that Cavenagh’s “trust” put ISBA Mutual in a
       position of superiority and influence over Cavenagh. See Miller v. William Chevrolet/GEO,
       Inc., 326 Ill. App. 3d 642, 657 (2001) (holding that transaction between dealer and customer
       “did not possess sufficient indicia of disparity in experience or knowledge such that the
       dealer could be said to have gained influence and superiority over the purchaser”); Fichtel,
       389 Ill. App. 3d at 963-64. To the extent that Cavenagh intended to claim a fiduciary duty
       arose from particular circumstances, “it was incumbent upon [him] to identify those
       circumstances and plead them with specificity.” Martin, 348 Ill. App. 3d at 852. In the
       absence of any allegations establishing a fiduciary relationship, the circuit court did not err
       in dismissing Cavenagh’s breach of fiduciary duty claim.

¶ 36                                 Civil Conspiracy (Fraud)
¶ 37       Cavenagh next challenges the dismissal of his “civil conspiracy” claim. “The elements
       of a civil conspiracy are: (1) a combination of two or more persons, (2) for the purpose of
       accomplishing by some concerted action either an unlawful purpose or a lawful purpose by
       unlawful means, (3) in the furtherance of which one of the conspirators committed an overt
       tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317 (2004). A conspiracy is not
       an independent tort. Indeck North American Power Fund, L.P. v. Norweb PLC, 316 Ill. App.


                                                -10-
       3d 416, 432 (2000). “Where *** a plaintiff fails to state an independent cause of action
       underlying [the] conspiracy allegations, the claim for a conspiracy also fails.” Id.
¶ 38        While Cavenagh’s complaint did not specify that his conspiracy claim was based on
       allegations of fraud, he now relies on the tort of fraud as the basis for the conspiracy claim.
       The elements of fraud are: “ ‘(1) a false statement of material fact; (2) the party making the
       statement knew or believed it to be untrue; (3) the party to whom the statement was made
       had a right to rely on the statement; (4) the party to whom the statement was made did rely
       on the statement; (5) the statement was made for the purpose of inducing the other party to
       act; and (6) the reliance by the person to whom the statement was made led to that person’s
       injury.’ ” Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 529 (1996) (quoting Siegel
       v. Levy Organization Development Co., 153 Ill. 2d 534, 542-43 (1992)). In order to state a
       cause of action for common law fraud, the essential elements of fraud must be pleaded with
       specificity. Id.
¶ 39        Cavenagh alleged that the Bogusz complaint was a false statement made by ISBA Mutual
       to induce Cavenagh (and his client, Spilotro) to settle Spilotro’s claim against Joniak for less
       than the full value. Even if we assume that there are specific factual allegations showing that
       the Bogusz complaint was a “false statement” attributable to ISBA Mutual, the complaint
       fails to include any factual allegations that Cavenagh actually relied on the Bogusz complaint
       or that this reliance led to his injury. The complaint contains no allegations that Cavenagh
       was induced to settle his claim or acted, to his detriment, based on Bogusz’s allegations. In
       fact, Cavenagh repeatedly states that the Bogusz complaint was obviously frivolous and
       “patently defective,” negating any claim that he relied on the complaint. Cavenagh also took
       immediate steps to obtain coverage and, when coverage was denied, obtain dismissal of the
       suit. These actions further establish that Cavenagh did not actually rely on the Bogusz suit
       or that any reliance led to his injury. Cf. Trautman v. Knights of Columbus, 121 Ill. App. 3d
       911, 914-15 (1984) (finding insured did not plead reliance based on insurer’s alleged forgery
       of policy amendment, where “plaintiff’s accusations of forgery and her immediate steps to
       protect her rights under the contract clearly belie reliance on the amendment”).
¶ 40        Cavenagh argues that reliance is established “by the fact that an insured relies upon an
       insurer to provide coverage that comports with Illinois law and is free from fraud and deceit.”
       But this says nothing about the alleged statement by ISBA Mutual at issue here–the Bogusz
       complaint–or whether Cavenagh actually relied on it to his detriment. The allegations of
       reliance are based on “mere conclusions of law or fact unsupported by specific factual
       allegations.” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009).
       Where Cavenagh failed to state an independent claim of fraud, the court did not err in
       dismissing Cavenagh’s conspiracy claim.

¶ 41                             Limitations on Discovery
¶ 42      Cavenagh next contends that after the dismissal of his counterclaim, the circuit court
       improperly limited discovery, impeding his ability to defend against ISBA Mutual’s
       summary judgment motion.



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¶ 43                               Motion for Protective Order
¶ 44       Cavenagh argues that the circuit court erred by granting ISBA Mutual’s motion for a
       protective order barring Cavenagh from discovery. We review the circuit court’s ruling for
       an abuse of discretion. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002).
¶ 45       The only claim still at issue when Cavenagh issued his discovery requests was ISBA
       Mutual’s breach of its duty to defend. “[W]here the issue is whether the insurer has a duty
       to defend, a court ordinarily looks first to the allegations in the underlying complaint and
       compares those allegations to the relevant provisions of the insurance policy.” Pekin
       Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010). In the few cases where courts have
       looked beyond the underlying complaint on a coverage question, the outside information
       came from pleadings or filed documents that affected whether the complaint’s allegations
       fell within the policy language. For example, in Pekin, where the complaint against the
       insured alleged intentional acts, the court found that it was proper to examine the insured’s
       counter-pleading, which suggested that the insured was acting in self-defense, because the
       policy contained a self-defense exception. Id. at 450-51. Similarly, in Millers Mutual
       Insurance Ass’n of Illinois v. Ainsworth Seed Co., 194 Ill. App. 3d 888 (1989), the court
       examined the underlying complaint along with an affidavit from the insured’s employee in
       order to resolve “confusion in the pleadings.” 194 Ill. App. 3d at 890-93.
¶ 46       By contrast, here the discovery sought by Cavenagh had no effect on whether the
       allegations in the Bogusz complaint were covered by the policy. For example, Cavenagh
       sought discovery regarding “the rule on which ISBA Mutual made [the decision not to
       defend]” and “the extent of ISBA Mutual’s knowledge of Konicek’s acts in filing the third-
       party complaint.” In contrast to Pekin and Ainsworth, the requested information has no
       bearing on whether the Bogusz complaint alleged a “negligent” act or whether the complaint
       alleged intentional acts beyond the policy’s coverage. The court did not abuse its discretion
       in granting ISBA Mutual’s motion for protective order.

¶ 47                                     Rule 201(k) Violation
¶ 48        Cavenagh next argues that the court abused its discretion when it granted ISBA Mutual’s
       motion for a protective order because ISBA Mutual did not comply with Illinois Supreme
       Court Rule 201(k). Ill. S. Ct. R. 201(k) (eff. July 1, 2002). Rule 201(k) requires that “[e]very
       motion with respect to discovery shall incorporate a statement that after personal consultation
       and reasonable attempts to resolve differences the parties have been unable to reach an
       accord.” Id. This court has previously recognized that “strict technical compliance with Rule
       201(k) is not required,” however, “so long as the record reflects that the movant attempted
       to resolve his difficulties with his opponent prior to seeking judicial intervention in discovery
       matters.” Antkiewicz v. Pax/Indianapolis, Inc., 254 Ill. App. 3d 723, 729 (1993). Here, the
       circuit court heard ISBA Mutual and Cavenagh argue at length as to whether there was
       credible evidence that Bogusz’s third-party complaint was the product of a conspiracy.
       Cavenagh’s discovery requests were largely an attempt to resurrect those claims dismissed
       with prejudice, and the record suggests that any attempt to reach a compromise would have
       been futile. Cf. Hartnett v. Stack, 241 Ill. App. 3d 157, 174 (1993) (concluding that failure


                                                 -12-
       to comply with Rule 201(k) was not fatal where the record showed that the parties were, in
       fact, “unable to reach an accord after reasonable attempts to resolve differences”). We
       therefore conclude that the circuit court did not abuse its discretion in considering the motion
       for protective order despite a technical violation of Rule 201(k).

¶ 49                             Supreme Court Rule 191(b) Affidavit
¶ 50        Cavenagh next contends that the circuit court incorrectly struck the Illinois Supreme
       Court Rule 191(b) affidavit he submitted in response to ISBA Mutual’s summary judgment
       motion. Rule 191(b) provides, in relevant part:
            “If the affidavit of either party contains a statement that any of the material facts which
            ought to appear in the affidavit are known only to persons whose affidavits affiant is
            unable to procure by reason of hostility or otherwise, naming the persons and showing
            why their affidavits cannot be procured and what affiant believes they would testify to
            if sworn, with his reasons for his belief, the court may make any order that may be just,
            either granting or refusing the motion ***.” Ill. S. Ct. R. 191(b) (eff. July 1, 2002).
¶ 51        In his affidavit, Cavenagh first argued that he could not intelligently respond to the
       motion for summary judgment without first obtaining documents and taking depositions
       regarding who made the decision to deny coverage and why and how the decision was
       reached. This is simply a restatement of Cavenagh’s failed discovery requests. We have
       explained above that the discovery Cavenagh sought was not relevant to ISBA Mutual’s
       obligation to defend under the policy.
¶ 52        Cavenagh also claimed that he needed additional discovery regarding a “discrepancy”
       between the language quoted in the summary judgment motion and the language contained
       in the policy first issued to Cavenagh. While it is true that the text of policy “IL 12/2007” did
       not exactly match the text of policy “IL 12/2005,” there is no substantive difference in the
       coverage provisions. The changes are in form, replacing the pronouns “we” and “you” with
       the terms “the Company” and “the Insured.” We agree with the circuit court that additional
       discovery would have served no constructive purpose.

¶ 53                            Supreme Court Rule 191(a) Affidavit
¶ 54        Cavenagh also argues that the circuit court improperly struck his Supreme Court Rule
       191(a) affidavit. Rule 191(a) requires that an affidavit in opposition to a motion for summary
       judgment “shall be made on the personal knowledge of the affiants”; “shall set forth with
       particularity the facts upon which the claim, counterclaim, or defense is based”; and “shall
       not consist of conclusions but of facts admissible in evidence.” Ill. S. Ct. R. 191(a) (eff. July
       1, 2002). “Rule 191(a) should be construed according to the plain and ordinary meaning of
       its language. Its provisions should be adhered to as written.” Robidoux v. Oliphant, 201 Ill.
       2d 324, 347 (2002). Cavenagh’s affidavit clearly did not comply with the requirements set
       forth in Rule 191(a): the affidavit set forth unsupported assertions and conclusions, and the
       affidavit set forth allegations clearly beyond Cavenagh’s personal knowledge. See Fabiano
       v. City of Palos Hills, 336 Ill. App. 3d 635, 650-51 (2002) (“ ‘A court must disregard
       conclusions in affidavits when adjudicating a summary judgment motion.’ [Citation.]”

                                                 -13-
       (Emphasis in original.)); In re E.L., 152 Ill. App. 3d 25, 31 (1987) (noting the “well
       established principle of law that *** documents [filed in support of] summary judgment must
       recite facts and not mere conclusions or statements based on information and belief”). The
       circuit court properly struck Cavenagh’s Rule 191(a) affidavit.

¶ 55                                      CONCLUSION
¶ 56       For the foregoing reasons, we affirm the circuit court’s order dismissing Cavenagh’s
       counterclaim and striking his affirmative defense of estoppel. We find no error in the court’s
       discovery rulings. We also affirm the order granting summary judgment in favor of ISBA
       Mutual.

¶ 57      Affirmed.




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