                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




             Geisler v. Everest National Insurance Co., 2012 IL App (1st) 103834




Appellate Court            FRED GEISLER, Plaintiff-Appellant, v. EVEREST NATIONAL
Caption                    INSURANCE COMPANY and WESTERN LITIGATION, INC.,
                           Defendant-Appellees.



District & No.             First District, Sixth Division
                           Docket No. 1-10-3834


Filed                      November 16, 2012


Held                       In an action alleging a breach of defendants’ obligations with regard to
(Note: This syllabus       two claims under the medical malpractice insurance provided for plaintiff
constitutes no part of     in his capacity as a neurosurgeon, summary judgment was properly
the opinion of the court   entered for defendants on the grounds that the policy did not provide
but has been prepared      coverage for plaintiff in the first claim and no duty to provide a defense
by the Reporter of         existed, and in the second claim, plaintiff had no right to approve the
Decisions for the          settlement of the suit and defendants timely paid for the defense of that
convenience of the         claim.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CH-47262; the
Review                     Hon. Nancy J. Arnold, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Patrick J. McGuire and Philip J. McGuire, both of Law Offices of Patrick
Appeal                     J. McGuire, of Chicago, for appellant.

                           Ross D. Roloff, of Merlo Kanofsky & Gregg, Ltd., of Chicago, for
                           appellees.


Panel                      JUSTICE R. GORDON delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Lampkin specially concurred, with opinion.
                           Justice Garcia specially concurred, with opinion.



                                             OPINION

¶1          Plaintiff Fred Geisler, M.D., filed this suit claiming that defendants Everest National
        Insurance Company (Everest) and Western Litigation, Inc. (Western), breached its duties
        under the Everest insurance policy (Everest Policy) regarding two medical malpractice
        lawsuits in which plaintiff was a named defendant (Townsley Lawsuit and Lalicata Lawsuit).
        Defendants responded claiming that plaintiff failed to state a claim for breach of the Everest
        Policy regarding its defense of the Townsley Lawsuit, and that the Everest Policy did not
        provide plaintiff with coverage for the Lalicata Lawsuit.
¶2          In this appeal, plaintiff seeks to reverse the circuit court’s orders granting summary
        judgment in favor of defendants. Specifically, plaintiff appeals the trial court’s orders: (1)
        denying plaintiff’s motion for partial summary judgment; (2) granting summary judgment
        in favor of defendants; and (3) denying plaintiff’s motion to reconsider and for leave to file
        a second amended complaint.
¶3          Defendants additionally challenge this court’s jurisdiction to review the trial court’s
        summary judgment orders, arguing that plaintiff’s notice of appeal was untimely filed.
        Defendants argue that plaintiff’s motion to reconsider and for leave to file a second amended
        complaint was not a proper posttrial motion and thus did not toll the time to appeal.
        Defendants also challenge this court’s jurisdiction to review the trial court’s order denying
        plaintiff’s motion, arguing that the order was not a final judgment. We affirm.

¶4                                      BACKGROUND
¶5                                        I. The Parties
¶6          Plaintiff was formerly employed as a neurosurgeon with the Chicago Institute of
        Neurosurgery and Neuroscience, Inc. (Chicago Institute), from September 1, 1992, until his
        employment was terminated allegedly “for cause” on January 4, 2004. On January 1, 2003,
        the Chicago Institute began providing its employees medical liability insurance under the

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       Everest Policy. Plaintiff was an insured under the Everest Policy during his employment with
       the Chicago Institute, and the Everest Policy listed his coverage as effective from September
       1, 1992, through December 31, 2003. Defendant Western, a liability claims and risk
       management company, was contracted by defendant Everest to administer the claims made
       under the Everest Policy.
¶7         In January 2003 and March 2004, plaintiff was added as a defendant in two medical
       malpractice lawsuits: the Townsley Lawsuit and the Lalicata Lawsuit, respectively.
       Defendant Everest reimbursed plaintiff’s defense costs in the Townsley Lawsuit, which was
       settled without plaintiff’s consent, but did not defend him in the Lalicata Lawsuit.
¶8         As a result, plaintiff brought the instant litigation, claiming that defendants Everest and
       Western breached their duties under the Everest Policy by: (1) failing to timely reimburse his
       defense costs in the Townsley Lawsuit; (2) settling the Townsley Lawsuit without his
       consent; and (3) failing to tender plaintiff a defense in the Lalicata Lawsuit. Plaintiff
       additionally sought damages under section 155 of the Illinois Insurance Code (215 ILCS
       5/155 (West 2004)), claiming Everest acted in bad faith. Defendants filed affirmative
       defenses claiming that: (1) defense costs for the Townsley Lawsuit were timely paid; (2)
       plaintiff’s consent was not required to settle the Townsley Lawsuit; (3) the Everest Policy
       did not provide plaintiff with coverage in the Lalicata Lawsuit; and (4) defendants
       alternatively had no duty to defend plaintiff in the Lalicata Lawsuit under the provisions of
       the Everest Policy.

¶9                                       II. The Everest Policy
¶ 10       Plaintiff’s employer, the Chicago Institute, was obligated under its employment
       agreement to provide its employees with medical malpractice insurance. From January 1,
       2003, through December 31, 2003, the Chicago Institute contracted with defendant Everest
       to cover its employees under the Everest Policy. The Everest Policy was a “claims made”
       medical liability insurance, covering “loss events,” including “medical professional
       services,” or services rendered to a patient for care and treatment in the practice of medicine.
       Defendant Everest reserved “the right but not the duty or obligation to defend any ‘claim’ or
       suit against an ‘Insured.’ ” The claims made provision provided coverage for claims that
       were first made and reported to defendant Everest during the policy period or during an
       “extended reporting period.” An extended reporting period extends the time for reporting
       claims after the policy period ends.
¶ 11       The Everest Policy contained several endorsements that periodically amended the terms
       of the policy’s coverage. One such endorsement was a “schedule of medical insureds” that
       amended the Everest Policy on November 30, 2003, to list the physicians who were provided
       coverage (Original Schedule). Plaintiff was listed as an insured on the Original Schedule
       with a retroactive effective date of September 1, 1992. The Original Schedule did not have
       a termination date. However, the policy period ended on December 31, 2003. The Everest
       Policy states that a retroactive date provides an insured with coverage for claims that predate
       the inception of the Everest Policy.
¶ 12       On December 31, 2003, plaintiff was sent correspondence from defendant Everest

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       informing him that he was no longer insured and would not receive any future coverage. On
       August 10, 2004, the Everest Policy was amended by an endorsement to list December 31,
       2003, on the Original Schedule as the date of termination of plaintiff’s coverage (General
       Change Endorsement). On September 9, 2004, the Everest Policy was amended by an
       endorsement to replace and supersede the Original Schedule with a new schedule of medical
       insureds that no longer listed plaintiff as an Insured (Revised Schedule). Also on that day,
       the Everest Policy was amended by endorsement to include an extended reporting period that
       extended the period to file claims indefinitely, with an effective date of January 1, 2004. The
       appellate record does not indicate that plaintiff received any notice of the foregoing
       endorsements.
¶ 13        The Everest Policy contained a $2,500,000 self-insured retention clause (SIR). Similar
       to a deductable, the SIR required the Chicago Institute to pay for the first $2,500,000 of costs
       incurred to defend, settle, or otherwise resolve the claims covered under the Everest Policy.
       On December 15, 2008, the Chicago Institute and defendant Everest entered into a
       confidential settlement agreement, release and covenant not to sue (Settlement Agreement).
       The Settlement Agreement rendered the SIR exhausted on that day, with respect to all
       existing and future claims under the Everest Policy.
¶ 14        Under the provisions of its policy, defendant Everest had the right to “[s]ettle, or
       participate in the settlement of, any ‘claim first made’ that is settled with the consent of the
       general counsel of the named insured shown in the ‘Declarations.’ ” The Everest Policy
       contained no explicit language conferring settlement consent rights to any insured other than
       the general counsel of the named insured. Effective January 1, 2004, the Everest Policy was
       amended to identify the Chicago Institute as a named insured. The Everest Policy did not
       identify the general counsel of the named insured, but it designated Michael Kelly, a partner
       with the firm Hinshaw & Culbertson (Hinshaw), as the defense counsel by the Named
       Insured. The Chicago Institute later waived, effective December 15, 2008, the right to
       consent provision pursuant to the Settlement Agreement.

¶ 15                                III. The Townsley Lawsuit
¶ 16       The Townsley lawsuit arose from patient Peter Townsley’s spinal surgery, which was
       performed by plaintiff on September 18, 2001, resulting in Townsley’s loss of use and
       function of his right arm. These complications led Townsley to later sue plaintiff for medical
       malpractice on January 30, 2003. Defendant Everest retained Hinshaw, designated by the
       named insured under the Everest Policy as defense counsel, to defend plaintiff in the
       Townsley Lawsuit. In December 2003, Hinshaw separately advised the Chicago Institute on
       matters related to the termination of plaintiff’s employment. In March 2004, plaintiff
       personally retained Hickey, Malia and Associates (Hickey Malia) to represent him in the
       Townsley Lawsuit. Under the terms of the Everest Policy’s coverage, the Chicago Institute
       reimbursed Hickey Malia for the costs and attorney fees in defending the Townsley Lawsuit
       since the SIR had yet to be exhausted.
¶ 17       Defendant Western made the payments on behalf of the Chicago Institute. Specifically,
       Western sent five checks to the attorneys totaling $27,350.25 from September 2005 through


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       June 2007. From July 2007 through November 2008, Hickey Malia sent to defendant
       Western six additional invoices totaling $43,533.68 in defense costs. Plaintiff requested an
       explanation from defendants Everest and Western as to why these defense reimbursement
       payments were not made. Defendant Western responded that the payments were subject to
       the SIR and that the Chicago Institute, not defendant Everest, was obligated to pay.
       Defendant Everest later reimbursed plaintiff for these defense costs, after the SIR was
       exhausted on December 15, 2008. Specifically, defendant Western, on behalf of defendant
       Everest, sent Hickey Malia a $45,007.98 check for defense payments on December 29, 2008.
¶ 18       On March 17, 2009, plaintiff learned that defendant Western proposed to enter into a
       settlement agreement with Townsley, and plaintiff notified defendant Western the next day
       that he did not consent to the proposed $150,000 settlement. Despite his requests to review
       the settlement proposal and for additional time to discuss the matter with counsel, plaintiff
       did not receive copies of the settlement papers until the matter was settled without his
       consent on March 27, 2009.
¶ 19       On June 24, 2009, plaintiff advised defendant Western that he had no additional invoices.
       Defendant Western, on behalf of Everest, made a final defense reimbursement to Hickey
       Malia in the amount of $3,917 on July 16, 2009. Plaintiff concedes that defendants Everest
       and Western paid the defense costs and attorney fees for the Townsley suit.

¶ 20                                   IV. The Lalicata Lawsuit
¶ 21        The Lalicata Lawsuit arose from spinal surgery performed on March 12, 2002, on patient
       Caterina Lalicata by plaintiff and Dr. Mark Connolly, a physician who was not employed by
       the Chicago Institute. Lalicata died from complications that day. After the surgery, defendant
       Everest retained Hinshaw to advise plaintiff on potential legal matters related to Lalicata’s
       surgery. Lalicata’s estate sued Dr. Connolly in October 2003. In March 2004, plaintiff and
       the Chicago Institute were added as defendants to the Lalicata Lawsuit, and plaintiff
       personally hired Hickey Malia as his defense counsel. That month, on March 29, the Chicago
       Institute sent a letter to defendant Everest informing it of the litigation and requesting that
       it not defend plaintiff due to the termination of his employment. Defendant Everest acceded
       to the request and tendered a defense to the Chicago Institute but not to plaintiff, believing
       plaintiff was no longer covered under the Everest Policy. Plaintiff was eventually nonsuited
       from the Lalicata Lawsuit on November 26, 2007.
¶ 22        In his complaint, plaintiff alleges that he incurred “significant” attorney fees and costs
       defending the Lalicata Lawsuit. Defendants Everest and Western provided no reimbursement
       for these fees. However, Cynthia Rendon, a claims attorney for defendant Western, stated in
       a sworn affidavit that plaintiff never submitted any defense cost invoices to defendant
       Western regarding the Lalicata Lawsuit.

¶ 23                                   V. Procedural History
¶ 24       Plaintiff filed this action on December 18, 2008, seeking a declaratory judgment to
       determine the rights and responsibilities of the respective parties under the terms of the
       Everest Policy. On March 27, 2009, plaintiff filed a “Verified Motion for a Temporary

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       Restraining Order,” seeking to enjoin defendants from settling the Townsley suit without
       plaintiff’s consent. The trial court denied the motion three days later. On March 31, 2009,
       the Chicago Institute filed a “Motion to Compel Mediation/Arbitration,” which was later
       granted. Plaintiff and the Chicago Institute arbitrated their rights under the physician
       employment agreement, which is not an issue in this appeal.
¶ 25        On April 28, 2009, plaintiff filed a “First Amended Complaint for Declaratory
       Judgment,” alleging breach of contract against defendant Everest, the Chicago Institute, and
       defendant Western, and for a declaratory judgment as to the rights and responsibilities of the
       respective parties under the terms of the Everest Policy, and for damages against defendant
       Everest for its bad faith in violation of section 155 of the Illinois Insurance Code (215 ILCS
       5/155 (West 2004)).
¶ 26        In count I, plaintiff alleged that defendant Everest breached the Everest Policy when it:
       (1) failed to make timely defense payments to plaintiff in the Townsley Lawsuit; (2) did not
       respond promptly to plaintiff’s inquiries regarding the extent of the Everest Policy’s
       coverage; (3) failed to provide plaintiff an opportunity to discuss the settlement of the
       Townsley Lawsuit with his counsel and belatedly delivered the settlement papers; (4) settled
       the Townsley Lawsuit without the consent of plaintiff or his counsel; and (5) failed to
       reimburse plaintiff for his costs defending the Lalicata Lawsuit.
¶ 27        In count III, plaintiff further alleged defendant Western breached the Everest Policy when
       it: (1) failed to make timely defense payments to plaintiff in the Townsley Lawsuit; (2) failed
       to provide plaintiff an opportunity to discuss the settlement of the Townsley Lawsuit with
       his counsel and belatedly delivered the settlement papers; (3) settled the Townsley Lawsuit
       without the consent of plaintiff or his counsel; (4) failed to reimburse plaintiff for his costs
       defending the Lalicata Lawsuit; (5) purposely interfered with plaintiff’s rights under the
       Everest Policy; (6) purposely interfered with plaintiff’s right to have his counsel draft the
       settlement agreement in the Townsley Lawsuit; (7) purposefully interfered with plaintiff’s
       representation by counsel in the Townsley Lawsuit; and (8) acted with willful and wanton
       disregard of plaintiff’s rights as a litigant represented by counsel.
¶ 28        In count V, plaintiff further sought a claim under the Illinois Insurance Code (215 ILCS
       5/155 (West 2004)) for bad faith arising out of defendant Everest’s unreasonable and
       vexatious conduct when it: (1) failed to make timely defense payments to plaintiff in the
       Townsley Lawsuit; (2) did not respond promptly to plaintiff’s inquiries regarding the extent
       of the Everest Policy’s coverage; (3) failed to provide plaintiff an opportunity to discuss the
       settlement of the Townsley Lawsuit with his counsel and belatedly delivered the settlement
       papers; (4) allowed defendant Western to settle the Townsley Lawsuit without the consent
       of plaintiff or his counsel; (5) failed to reimburse plaintiff for his costs defending the Lalicata
       Lawsuit; and (6) conspired with the Chicago Institute and defendant Western to deny plaintiff
       benefits owed under the Everest Policy.
¶ 29        Plaintiff and the Chicago Institute entered into arbitration pursuant to the provisions of
       plaintiff’s employment contract with the Chicago Institute. The arbitration proceedings were
       bifurcated into two phases: liability and damages. In the first phase, the liability issues were
       decided in the Chicago Institute’s favor. On May 19, 2009, the Chicago Institute filed a


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       “Motion to Stay or Dismiss Based on Mediation/Arbitration Agreement and/or Pending
       Arbitration.” The Chicago Institute argued that the allegations in plaintiff’s first amended
       complaint were subject to arbitration and were currently being arbitrated. The trial court
       granted the Chicago Institute’s motion to compel arbitration on September 11, 2009, which
       removed the Chicago Institute from the lawsuit. The appellate record does not indicate the
       outcome of the arbitration proceedings.
¶ 30        Defendants filed their answer, affirmative defenses, and counterclaim for declaratory
       judgment on June 5, 2009, alleging that: (1) plaintiff no longer qualified as an insured at the
       time of the Lalicata Lawsuit; (2) there was no untimely payment of defense costs in the
       Lalicata Lawsuit; (3) defendants made timely payments for defense costs in the Townsley
       Lawsuit; and (4) plaintiff’s consent was not required for settlement of the Townsley Lawsuit.
¶ 31        On January 27, 2010, plaintiff filed a motion for partial summary judgment against
       defendants on issues regarding the Lalicata Lawsuit in counts I, III, and IV. Plaintiff claimed
       that he was insured under the Everest Policy at the time the claim was filed, which entitled
       him to receive reimbursements for his costs in defending the Lalicata Lawsuit. Plaintiff
       further argued that, by law and under the terms of the policy, defendant Everest was not
       allowed to retroactively cancel plaintiff’s coverage. In his brief in support of his motion for
       partial summary judgment, plaintiff argued that the Everest Policy provided defendants with
       a duty to defend in the Lalicata Lawsuit, and that judicial estoppel barred defendants from
       asserting any defenses to coverage.
¶ 32        Defendants filed their response and cross-motions for summary judgment on March 4,
       2010. In their response, defendants argued that plaintiff was not insured under the Everest
       Policy when he filed his claim reporting the Lalicata Lawsuit, and, alternatively, that
       defendants did not have a duty to defend. In their cross-motion, defendants sought summary
       judgment as to counts I, III, IV, and V of plaintiff’s complaint, in addition to all counts of
       defendants’ counterclaim. Defendants argued that their payments to plaintiff for the defense
       of the Townsley Lawsuit were not untimely and that plaintiff’s consent was not required to
       settle the Townsley Lawsuit.
¶ 33        On July 13, 2010, the trial court heard arguments and denied plaintiff’s motion. During
       the hearing, the trial court cited Continental Casualty Co. v. Cuda, 306 Ill. App. 3d 340
       (1999), and indicated that plaintiff’s argument was making the mistake of turning the Everest
       Policy into an occurrence policy, rather than a claims made policy. The trial court held that
       defendants had “no obligation whatsoever” to defend plaintiff in the Lalicata Lawsuit
       because he was not an insured when the claim was first made. In its written order, the trial
       court found that, pursuant to the Revised Schedule, effective January 1, 2004, “plaintiff was
       not an ‘insured’ under the Everest Policy, and that the claim was first made on March 29,
       2004.”
¶ 34        On August 25, 2010, the trial court heard arguments and granted defendants’ cross-
       motion for summary judgment. During the hearing, the trial court repeatedly questioned
       plaintiff about whether he had alleged any specific damages. At the end of the hearing, the
       trial court granted summary judgment in favor of defendants and found that plaintiff had not
       alleged damages to support a bad-faith claim under section 155 of the Illinois Insurance Code


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       (215 ILCS 5/155 (West 2004)). The trial court also found that the Everest Policy did not
       provide plaintiff with a right to consent to settlement. In its written order, the trial court
       stated: (1) that the reimbursements of plaintiff’s defense costs of the Townsley Lawsuit were
       timely paid; (2) that plaintiff had no claim for damages regarding the defense reimbursements
       for the Townsley Lawsuit; and (3) that plaintiff’s consent was not required to settle the
       Townsley Lawsuit.
¶ 35       Plaintiff then filed a “Motion to Reconsider, For Leave to File Second-Amended
       Complaint, and to Set Aside and Vacate Orders Entered July 13, 2010 and August 25, 2010.”
       Plaintiff’s motion sought to remedy errors of fact and law by including new and more fully
       developed allegations of damages regarding the Townsley Lawsuit. Plaintiff also argued that
       the estoppel doctrine barred defendants from raising affirmative defenses as to coverage of
       the Lalicata Lawsuit. On November 30, 2010, the motion to reconsider was denied.
¶ 36       On this appeal, defendants argue that plaintiff’s September 24, 2010, motion was not a
       proper posttrial motion that tolled the time to appeal because it did not challenge the trial
       court’s July 13, 2010, and August 25, 2010, orders on summary judgment. As a result, we
       quote the relevant part of plaintiff’s September 24, 2010, motion:
                “The plaintiff, Fred Geisler, M.D., by and through his attorneys, the Law Offices of
           Patrick J. McGuire, hereby submits his motion for leave to file a second-amended
           complaint and to set aside and vacate orders entered on July 13, 2010, and August 25,
           2010, stating as follows:
                    1. On July 13, 2010, the court entered an order denying plaintiff’s motion for
                partial summary judgment. (Exhibit 1).
                    2. On August 25, 2010, the court entered an order granting defendants’ motion
                for summary judgment. (Exhibit 2).
                                                   ***
                    6. The proposed second-amended complaint contains new and more fully
                developed allegations that render erroneous the factual and legal bases on which the
                court relied in support of its prior orders. For example, the proposed second-amended
                complaint contains more specific allegations and exhibits to support plaintiff’s
                position that defendants should be estopped under cases such as Employers Ins. of
                Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127 (1999) from asserting the
                defenses to coverage for the Lalicata lawsuit on which the court based its summary
                judgment orders.
                    7. The proposed second-amended complaint also contains new and specific
                allegations that plaintiff incurred damages in the form of additional attorney’s fees
                as a result of the 18-month delay in defendants’ payment of defense costs relative to
                the Townsley lawsuit. Such allegations cure the perceived defect that plaintiff had not
                alleged any contract damages related to the Townsley lawsuit and, therefore, could
                not sustain a cause of action under § 155 of the Insurance Code for such delay.
                                                   ***
                WHEREFORE, for the reasons set forth herein, plaintiff requests that he be granted


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           leave to file within 14 days a brief in support of this motion to reconsider which points
           out the errors in this court’s interpretation of the subject policy of insurance and further
           supports his claim that the court’s prior orders should be vacated, and that he be granted
           leave to file a second-amended complaint in substantially the same form as the pleading
           attached hereto.”
¶ 37       In denying plaintiff’s motion to reconsider the trial court stated the following: “For the
       reasons stated by the Court in open court, the plaintiff’s motion is DENIED.” Neither a
       transcript nor a bystander’s report of the hearing on the motion was provided in the appellate
       record. On December 22, 2010, plaintiff filed a notice of appeal, seeking reversal of the trial
       court’s orders: (1) denying plaintiff’s motion for partial summary judgment, (2) granting
       summary judgment in favor of defendants, and (3) denying plaintiff’s motion to reconsider
       and for leave to file a second amended complaint.
¶ 38       On March 23, 2011, defendants filed a motion to dismiss this appeal for lack of
       jurisdiction, which another panel of this court denied on May 17, 2011. In their appellate
       brief, defendants ask us to reconsider the denial made by a different panel.

¶ 39                                         ANALYSIS
¶ 40       Plaintiff brings this appeal claiming that the trial court erred when it: (1) denied
       plaintiff’s motion for partial summary judgment; (2) granted defendants’ motion for
       summary judgment; and (3) denied plaintiff’s motion to reconsider and for leave to file an
       amended complaint. Defendants additionally challenge this court’s jurisdiction to review any
       of the trial court’s orders. For the following reasons, we affirm.

¶ 41                                         I. Jurisdiction
¶ 42       Defendants first ask this court to reconsider its May 17, 2011, order denying defendants’
       motion to dismiss this appeal for lack of jurisdiction. Defendants claim that this court does
       not have jurisdiction to review plaintiff’s September 24, 2010, motion to reconsider and for
       leave to file an amended complaint because the motion was not a proper posttrial motion that
       tolled the requisite time for appeal. Defendants also argue that the trial court’s November 30,
       2010, order denying plaintiff’s motion was then not a final judgment.

¶ 43                                  A. Standard of Review
¶ 44       A reviewing court’s jurisdiction to hear an appeal may be challenged at any time. People
       v. Smith, 228 Ill. 2d 95, 104 (2008). The appellate court also has an independent duty to
       consider its own jurisdiction. Smith, 228 Ill. 2d at 104. A jurisdictional challenge presents
       a question of law that we review de novo. In re Marriage of Demaret, 2012 IL App (1st)
       111916, ¶ 25.

¶ 45                         B. Plaintiff’s September 24, 2010, Motion
¶ 46        Defendants first claim that plaintiff’s September 24, 2010, motion to vacate and for leave
       to file a second amended complaint was not a proper posttrial motion. According to Illinois

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       Supreme Court Rule 303(a)(1) (eff. May 30, 2008), a posttrial motion tolls a 30-day time
       period for filing a notice of appeal.
¶ 47        Illinois Supreme Court Rule 303(a)(1) states in relevant part:
            “The notice of appeal must be filed with the clerk of the circuit court within 30 days after
            the entry of the final judgment appealed from, or, if a timely posttrial motion directed
            against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the
            entry of the order disposing of the last pending postjudgment motion directed against that
            judgment or order ***.” Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008).
       “For a motion to qualify as a ‘post-trial motion,’ one or more of the types of relief specified
       in section 2-1203 must be specifically requested.” Marsh v. Evangelical Covenant Church
       of Hinsdale, 138 Ill. 2d 458, 461 (1990).
¶ 48        Section 2-1203(a) of the Illinois Code of Civil Procedure states:
            “In all cases tried without a jury, any party may, within 30 days after the entry of the
            judgment or within any further time the court may allow within the 30 days or any
            extensions thereof, file a motion for rehearing, or a retrial, or modification of the
            judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203(a) (West
            2008).
¶ 49        Defendants claim that plaintiff’s September 24, 2010, motion must be construed merely
       as a motion for leave to file a second amended complaint because the motion did not
       “substantively” seek a rehearing, retrial, modification, or vacation of the trial court’s July 13,
       2010, and August 25, 2010, orders. 735 ILCS 5/2-1203(a) (West 2008). Additionally,
       defendants claim that plaintiff’s motion did not seek “other relief” as also permitted by
       section 2-1203 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1203(a) (West 2008).
       See, e.g., Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 81 (2006) (finding
       a motion for leave to file an amended complaint does not constitute “other relief”).
       Therefore, defendants argue, plaintiff’s motion was not a valid posttrial motion and did not
       toll the 30-day time period for filing a notice of appeal. Ill. S. Ct. R. 303(a)(1) (eff. May 30,
       2008) (permitting a 30-day time period for filing a notice of appeal).
¶ 50        Defendants are correct in that this court has found that a motion seeking only to file an
       amended complaint after a final judgment does not qualify as a posttrial motion for purposes
       of Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008). Fultz v. Haugan, 49 Ill. 2d
       131, 136 (1971). Thus, the issue before us is to determine whether plaintiff’s motion sought
       more than leave to amend and whether it requested one or more of the types of relief set forth
       in section 2-1203 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1203(a) (West 2008).
       To determine whether a motion is a proper posttrial motion, we must review the substance
       of the motion, and not just its title. Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App.
       3d 76, 81 (2006).
¶ 51        Reviewing the body of plaintiff’s motion, we find it did seek to vacate the circuit court’s
       prior orders. First, the title asked the trial court to “Reconsider” and “Set Aside and Vacate
       Orders Entered July 13, 2010, and August 25, 2010.” Second, the introductory paragraph
       repeated this request, stating: “The plaintiff *** hereby submits his motion for leave to file
       a second-amended complaint and to set aside and vacate orders entered on July 13, 2010, and

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       August 25, 2010.” Third, the motion listed the trial court’s summary judgment orders and
       stated that an amended complaint would “render erroneous the factual and legal bases on
       which the court relied in support of its prior orders.” Fourth, the motion alleged new facts
       that would “cure the perceived defect” that plaintiff “could not sustain a cause of action
       under § 155 of the Insurance Code.” Fifth, in the prayer for relief, the motion once again asks
       the court to “reconsider” and requests that the “court’s prior orders should be vacated.”
¶ 52        Reviewed as a whole, the motion first presents itself as a motion to reconsider and to
       vacate the orders, then it alleges that the orders were grounded on inaccurate factual and legal
       bases, and finally it concludes by requesting the trial court to reconsider and vacate the
       orders. As a result, we find that the motion sought to vacate the trial court’s orders of
       summary judgment, which is one type of request for relief specified in section 2-1203 of the
       Illinois Code of Civil Procedure. 735 ILCS 5/2-1203(a) (West 2008). Consequently,
       plaintiff’s motion qualifies as a proper posttrial motion that tolls the time to appeal under
       Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008).
¶ 53        Plaintiff filed a notice of appeal on December 22, 2010, or 22 days after the November
       30, 2010, denial of his posttrial motion. Therefore, this court has jurisdiction to review each
       of the trial court’s July 13, 2010, August 25, 2010, and November 30, 2010, orders.

¶ 54                         C. Trial Court’s November 30, 2010, Order
¶ 55       Defendants also claim that the trial court’s November 30, 2010, order denying plaintiff’s
       September 24, 2010, motion did not constitute a final judgment from which this court has
       jurisdiction to hear an appeal. In support, defendants cite Sears v. Sears, 85 Ill. 2d 253, 258
       (1981), which held that “[a]n order denying a post-judgment motion is not itself a judgment,
       as that word is used *** in Supreme Court Rule 303 (73 Ill. 2d R. 303), and is not an
       appealable order.”
¶ 56       However, defendants’ argument is not persuasive because it is based on the premise that
       plaintiff’s September 24, 2010, motion was not a proper posttrial motion. Illinois Supreme
       Court Rule 303(a)(1) (eff. May 30, 2008) grants jurisdiction to hear an appeal if the notice
       of appeal is filed within 30 days after a “final judgment” or “after the entry of the order
       disposing of the last pending postjudgment motion directed against that judgment or order.”
       Additionally, the appellate court in Sears, 85 Ill. 2d at 258, held that “denial of a timely first
       post-judgment motion is always reviewable, because on appeal of the judgment the appellant
       may bring up all related orders entered before the notice of appeal and not previously
       appealable, including the denial of a post-judgment motion.” As previously stated, we find
       that plaintiff’s September 24, 2010, motion was a proper posttrial motion because it sought
       to vacate the trial court’s July 13, 2010, and August 25, 2010, orders of summary judgment.
       The December 22, 2010, notice of appeal was then filed within 30 days after the trial court’s
       order denying plaintiff’s posttrial motion directed against the judgment, pursuant to Illinois
       Supreme Court Rule 303(a)(1) (eff. May 30, 2008).
¶ 57       Therefore, we find that this court has jurisdiction to review each of the trial court’s July
       13, 2010, August 25, 2010, and November 30, 2010, orders, and we decline to reverse our
       order denying defendants’ motion to dismiss. We see no reasons to disturb the ruling of the

                                                 -11-
       prior panel of this court, which reached the same conclusion.

¶ 58             II. Denial of Plaintiff’s Motion for Partial Summary Judgment
¶ 59       Having found that we have jurisdiction, we now turn to the trial court’s summary
       judgment orders. Plaintiff claims that the trial court erred when it denied his January 27,
       2010, motion for partial summary judgment. Plaintiff argues: (1) that the Everest Policy
       provided him with coverage over the Lalicata Lawsuit; (2) that defendant Everest had a duty
       to defend plaintiff in the Lalicata Lawsuit; (3) that defendant Everest is judicially estopped
       from raising any defenses to coverage; and (4) that public policy dictates that an insurance
       provider should not be allowed to retroactively terminate coverage after a claim has been
       filed. Defendants counter that the trial court did not err when it found plaintiff was not
       insured under the Everest Policy at the time the Lalicata claim was made.

¶ 60                                   A. Standard Of Review
¶ 61       The construction of an insurance policy and a determination of the rights and obligations
       of the parties thereunder are questions of law for the court to decide and may be appropriate
       subjects for disposition by way of summary judgment. Steadfast Insurance Co. v. Caremark
       Rx, Inc., 359 Ill. App. 3d 749, 755 (2005) (quoting Crum & Forster Managers Corp. v.
       Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993)). Summary judgment is appropriate
       where the pleadings, depositions, and admissions on file, together with any affidavits and
       exhibits, when viewed in the light most favorable to the nonmoving party, indicate that there
       is no genuine issue of material fact and the moving party is entitled to judgment as a matter
       of law. 735 ILCS 5/2-1005(c) (West 2008). We review a circuit court’s decision on a motion
       for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
       154 Ill. 2d 90, 102 (1992). De novo consideration means the reviewing court performs the
       same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App.
       3d 564, 578 (2011).
¶ 62       “Summary judgment is a drastic measure and should only be granted if the movant’s right
       to judgment is clear and free from doubt.” Outboard Marine Corp. v. Liberty Mutual
       Insurance Co., 154 Ill. 2d 90, 102 (1992). “Mere speculation, conjecture, or guess is
       insufficient to withstand summary judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.
       App. 3d 313, 328 (1999). A defendant moving for summary judgment bears the burden of
       proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The defendant may meet its
       burden of proof either by affirmatively showing that some element of the case must be
       resolved in its favor, or by establishing “ ‘that there is an absence of evidence to support the
       nonmoving party’s case.’ ” Nedzvekas, 374 Ill. App. 3d at 624 (quoting Celotex Corp. v.
       Catrett, 477 U.S. 317, 325 (1986)). We may affirm on any basis appearing in the record,
       whether or not the trial court relied on that basis, and even if the trial court’s reasoning was
       incorrect. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).




                                                -12-
¶ 63                                 B. Everest Policy Coverage
¶ 64       Plaintiff claims that the Everest Policy provided him coverage for the Lalicata Lawsuit
       because all the necessary conditions were met. As previously stated, the Everest Policy
       covered medical insureds for loss events that occurred during the course of employment. It
       is uncontested that plaintiff was an employee with the Chicago Institute and insured under
       the Everest Policy at the time the claim was made. The claims made nature of the policy
       provides coverage for claims made within a proper reporting period. Plaintiff argues that,
       although his employment with the Chicago Institute was terminated on January 4, 2004, he
       was still covered under the Everest Policy when he reported the Lalicata loss event on March
       29, 2004.
¶ 65       Plaintiff’s position is dependant upon a “snapshot” view of the Everest Policy on the day
       he filed his claim. At that time, plaintiff was still listed as an insured under the Original
       Schedule. It was not until August 10, 2004, or four months after he filed the Lalicata claim,
       that the general change endorsement amended the Everest Policy to list the termination date
       of plaintiff’s coverage as January 1, 2004. Plaintiff’s contention is that under the ordinary
       and plain meaning, the Everest Policy still provided him with coverage on the day when he
       filed his claim. Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 371 (2007).
¶ 66       However, plaintiff was not covered under the policy, even if we were to accept his
       snapshot view of the Everest Policy on the date that he filed his claim. The effective dates
       for the Everest Policy were from January 1, 2003, until December 31, 2003. It was not until
       September 9, 2004, about five months after plaintiff filed his claim, that the Everest Policy
       was amended by endorsement to include the extended reporting period, with an effective date
       of January 1, 2004. In essence, plaintiff is asking this court to find that the retroactive
       effective date of the extended reporting period should be enforced, while the retroactive
       termination date of his coverage should not. We find this view to be inconsistent and against
       the clear meaning and construction of the Everest Policy on the date that plaintiff asks us to
       construe it.
¶ 67       As the trial court noted, plaintiff’s argument is construing the Everest Policy as an
       occurrence policy, rather than claims made. An occurrence based policy provides an insured
       with continuing coverage even after the policy period expires. Continental Casualty Co. v.
       Cuda, 306 Ill. App. 3d 340, 349 (1999). In a claims made policy, two events must occur to
       trigger coverage: (1) the claim must arise during the policy period; and (2) the claim must
       be reported during the policy period. Continental, 306 Ill. App. 3d at 349. It is uncontested
       that the loss that gave rise to the Lalicata Lawsuit occurred during the policy period when
       plaintiff was still employed by the Chicago Institute. However, that alone is not enough for
       coverage under the Everest Policy because coverage only occurs when the claim is made
       during the policy period.
¶ 68       Retroactive dates were frequently used under the Everest Policy and are used in insurance
       contracts in general, when a determination is made that an insured will no longer receive
       coverage, and the policy is later amended to reflect that fact. See, e.g., Martz v. Union Labor
       Life Insurance Co., 757 F.2d 135, 138 (7th Cir. 1985) (finding the effective date of policy
       modification is governed by the terms of the modification); Waitzman v. Classic Syndicate,


                                                -13-
       Inc., 271 Ill. App. 3d 246 (1995) (finding coverage for a claim that arose after the insurance
       policy’s retroactive effective date). That is consistent with what happened to plaintiff’s
       coverage under the Everest Policy, where plaintiff’s employment with the Chicago Institute
       was terminated, then he was notified that he would no longer receive coverage under the
       Everest Policy, and later the Everest Policy was amended to reflect that change. We cannot
       say that plaintiff was covered under the Everest Policy when he filed his claim on March 29,
       2004.

¶ 69                                      C. Duty to Defend
¶ 70       Plaintiff also claims that defendant Everest had a duty to defend in the Lalicata Lawsuit.
       Plaintiff cites the “eight corners rule,” which holds that the court compare the four corners
       of the underlying complaint with the four corners of the insurance contract in order to
       determine whether the allegations fall within, or potentially within, the policy’s coverage.
       Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 393 (1993).
       Plaintiff claims that defendant Everest had a duty to defend him in the Lalicata Lawsuit
       because he was covered under the Everest Policy when he filed the claim on March 24, 2004.
       Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125 (1992).
¶ 71       However, plaintiff’s argument follows the same line of reasoning as the one previously
       discussed–that the provisions of the Everest Policy must be construed under a specific
       snapshot in time–and likewise is not persuasive for the same reasons. The Everest Policy
       established a December 31, 2003, termination date for plaintiff’s coverage, and defendant
       Everest did not have a duty to defend on any claims made after that date.
¶ 72       Even if coverage could potentially be found under the provisions of the Everest Policy,
       the language of the SIR provision explicitly states that the coverage does not provide
       defendant Everest with a duty to defend. The SIR provided that defendant Everest “shall have
       the right but not the duty or obligation to defend any ‘claim’ or suit against an ‘Insured.’ ”
       As such, defendant Everest was not required to defend or indemnify defense costs incurred
       until the Chicago Institute, the Named Insured under the Everest Policy, paid the $2.5 million
       retained limit. The SIR was not exhausted until December 15, 2008, so any defense costs
       accrued prior to that date were the responsibility of the Chicago Institute to be applied against
       the SIR. Everest was not obligated under its policy to defend the Lalicata Lawsuit.

¶ 73                                     D. Judicial Estoppel
¶ 74        Plaintiff further argues that, under the doctrine of judicial estoppel, defendant Everest
       was barred from asserting defenses to coverage. Clemmons v. Travelers Insurance Co., 88
       Ill. 2d 469, 475 (1981). “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). If an insurer has a duty
       to defend a suit, then it must either provide a defense with or without a reservation of rights,
       or seek a declaratory judgment. Employers Insurance of Wausau, 186 Ill. 2d at 147-48. Since
       defendant Everest did neither, plaintiff claims that defendant Everest breached its duty to

                                                 -14-
       defend, and it is now estopped from claiming policy defenses to coverage.
¶ 75       Since Everest did not have a duty to defend, there can be no breach, and the doctrine of
       judicial estoppel would not apply. Employers Insurance of Wausau, 186 Ill. 2d at 151.

¶ 76                                       E. Public Policy
¶ 77       Additionally, plaintiff claims that public policy does not allow defendant Everest to
       retroactively cancel coverage after a claim had been filed. In support, plaintiff cites sections
       143.11 and 143.6 of the Illinois Insurance Code, which outline the notice requirements for
       cancelling insurance coverage. 215 ILCS 5/143.11, 143.16 (West 2004). Plaintiff also cites
       Associated Physicians Insurance Co. v. Obasi, 262 Ill. App. 3d 343 (1993), as an example
       of Illinois courts strictly enforcing the notice requirements. Plaintiff then makes a broad
       assertion that Associated Physicians and the cited statutory provisions show that it is against
       public policy to retroactively terminate an insured’s coverage, which should instead be done
       prospectively and with proper notice. Plaintiff further claims, with little explanation, that
       defendant Everest did not comply with the cancellation provision of the Everest Policy.
¶ 78       Plaintiff’s argument is based on the premise that his coverage was cancelled, which it
       was not. In the case at bar, plaintiff no longer qualified for coverage following the
       termination of his employment, so the Everest Policy’s cancellation and notice provisions
       did not apply. When plaintiff’s employment was terminated, his medical malpractice
       insurance was also terminated in a claims made policy. As a result, the cited statutes do not
       apply because they govern the cancellation of an insurance policy. Also, plaintiff’s cited case,
       Associated Physicians, is similarly distinguishable because it deals with the cancellation of
       insurance coverage, not its termination based on the termination of employment. As the trial
       court observed, it is a common practice among insurance contracts on claims made policies
       to amend policies by endorsement with a retroactive effective date, and this was done
       repeatedly throughout the history of the Everest Policy. Plaintiff’s public policy argument
       does not apply to the facts of this case, as the Revised Schedule and General Change
       Endorsement did not amount to a retroactive cancellation of coverage.

¶ 79               III. Granting of Defendants’ Motion for Summary Judgment
¶ 80       Plaintiff claims that the trial court erred when it granted defendants’ motion for summary
       judgment. In finding in favor of defendants, the circuit court held: (1) that the defense
       payments for the Townsley Lawsuit were timely paid to plaintiff; (2) that plaintiff did not
       allege damages regarding coverage of the Townsley Lawsuit; and (3) that the Everest Policy
       did not provide plaintiff with a right to consent to settle the Townsley Lawsuit. Plaintiff
       argues that the 18-month gap between reimbursement checks was an unreasonable delay that
       would amount to a bad-faith claim under section 155 of the Insurance Code of Illinois. 215
       ILCS 5/155 (West 2004). Plaintiff further argues that he did not need to allege missed
       defense payments because an unreasonable delay is actionable even if all payments are later
       paid in full. Finally, plaintiff claims that a conflict of interest prohibited defendants from
       settling the Townsley Lawsuit without his consent.


                                                -15-
¶ 81                                  A. Timeliness of Payments
¶ 82       In this appeal, plaintiff challenges the trial court’s finding that he was timely paid for his
       defense costs of the Townsley Lawsuit. Plaintiff claims, and defendants admit, that there was
       an 18-month delay between payments, from June 2007 to December 2008. Plaintiff argues
       that this delay was unreasonable and vexatious, and is actionable under section 155 of the
       Insurance Code of Illinois. 215 ILCS 5/155 (West 2004).
¶ 83       However, pursuant to the SIR, defendant Everest was not obligated to pay plaintiff’s
       defense costs until the SIR was exhausted on December 15, 2008. The issue of the 18-month
       delay in payments only concerned payments that were the responsibility of the Chicago
       Institute, which is no longer a party to this lawsuit. Defendant Everest first sent plaintiff a
       reimbursement payment two weeks after the SIR was exhausted, and a final payment was
       made July 16, 2009. We cannot say that Everest’s payments were not reasonable or untimely.

¶ 84                                   B. Allegation of Damages
¶ 85        Plaintiff claims that the circuit court erred when it found that plaintiff did not allege
       damages. In this appeal, plaintiff argues that he could still prevail in a claim for bad faith
       under section 155 of the Insurance Code of Illinois (215 ILCS 5/155 (West 2004)), even
       though defendants paid his defense invoices. In support, plaintiff cites Calcagno v.
       Personalcare Health Management, Inc., 207 Ill. App. 3d 493 (1991), which found a claim
       for breach under the Insurance Code can be made even if all the benefits are paid in full prior
       to litigation. Plaintiff also argued that the 18-month gap in payments resulted in additional
       litigation costs, including this appeal.
¶ 86        Despite plaintiff’s cited authority that an unreasonable delay can be actionable, plaintiff
       still has not alleged any recoverable damages in his complaint. Plaintiff’s argument is that
       a claim may potentially prevail; however, the issue here is whether plaintiff properly stated
       a claim in the first place. As the trial court noted, any action for breach of contract requires
       an allegation that damages were sustained as a result of a breach. In his complaint, plaintiff
       fails to show how the delay in payments caused any damages. Also, plaintiff’s argument that
       the gap between payments resulted in extra litigation costs is contrary to the “American
       Rule” of recoverable damages. International Insurance Co. v. Rollprint Packaging Products,
       Inc., 312 Ill. App. 3d 998 (2000). Illinois normally follows the “ ‘American Rule,’ ” where
       a party is responsible for his or her own attorney fees. In re Marriage of Pal, 397 Ill. App.
       3d 903, 910 (2010). “Generally, under the ‘American rule,’ a successful litigant may not
       recover attorney fees in the absence of a statute or a contractual agreement between the
       parties permitting recovery of attorney fees.” In re Estate of Elias, 408 Ill. App. 3d 301, 323
       (2011) (citing Goldstein v. DABS Asset Manager, Inc., 381 Ill. App. 3d 298, 302 (2008)).

¶ 87                             C. Right to Consent to Settlement
¶ 88       Plaintiff claims that the trial erred when it found that he did not have a right to consent
       to the settlement of the Townsley Lawsuit. Plaintiff argues that defendants and the Chicago
       Institute waived their rights to control the settlement of the Townsley Lawsuit. Specifically,
       plaintiff alleges that a conflict of interest occurred when Hinshaw counseled the Chicago

                                                 -16-
       Institute in settlement negotiations adverse to plaintiff’s interests in the Townsley Lawsuit.
       Plaintiff cites a provision in the Everest Policy that provides in relevant part:
           “If the Company chooses not to investigate a loss event, nor to defend any claim, of if the
           Company is precluded by an applicable law or regulation from selecting counsel to
           defend any Insured, the Insured will see to it that all necessary investigation and defense
           is made, and will, to the best of the Insured’s ability effect settlement to which the
           Company agrees. Under such circumstances, the counsel selected by the Insured will be
           compensated, in excess of the retained limit and subject to the limits of liability as
           described in Article VI. of this policy, at charges consistent with the normal and
           customary rate that the Company pays counsel and selects for like cases in similar
           locations.”
       Plaintiff claims that a conflict of interest by law prohibited Hinshaw from representing
       plaintiff in the Townsley Lawsuit. Plaintiff argues that he then hired Hickey Malia as
       independent counsel, which, under the Everest Policy, was then charged with effecting
       settlement on behalf of the plaintiff. In support, plaintiff cites Rogers v. Robson, Masters,
       Ryan, Brumund & Belom, 81 Ill. 2d 201 (1980), which found that the attorneys in the case
       had a duty to make a full disclosure to the physician, in regard to the settlement of
       malpractice litigation without his consent. Thus, plaintiff argues that his consent was
       required to settle the Townsley Lawsuit.
¶ 89       Plaintiff’s argument is not persuasive because it draws an incorrect conclusion
       concerning his settlement rights under the Everest Policy. Plaintiff describes the issue as an
       independent counsel problem, claiming that defendant Everest was prohibited by law from
       appointing plaintiff’s counsel. However the alleged conflict of interest arose from a law firm
       that had previously represented plaintiff in a separate matter, and it was resolved upon the
       termination of plaintiff’s employment when he hired Hickey Malia as his defense counsel.
       Additionally, Rogers is distinguishable because, as plaintiff acknowledges, the court did not
       address the insurer’s ability to settle without the physician’s consent because it was not an
       issue in that case. Rogers, 81 Ill. 2d 201. In the instant case, the conflict did not arise under
       the terms of the Everest Policy, nor did it affect the Chicago Institute or defendants’ interests.
       Whether Hinshaw had a duty of disclosure is not the relevant issue as to defendants’ rights
       to effect settlement under the Everest Policy.
¶ 90       Also, plaintiff’s argument does not reconcile with the explicit language of the Everest
       Policy regarding consent rights. The Everest Policy states that defendant Everest had the right
       to “[s]ettle, or participate in the settlement of, any ‘claim first made’ that is settled with the
       consent of the general counsel of the named insured shown in the ‘Declarations.’ ” Plaintiff
       concedes that he is not the named insured, and his counsel, Hickey Malia, was not the
       general counsel. Also, the Chicago Institute, the named insured under the Everest Policy as
       of January 1, 2004, waived its right to consent to settle on December 15, 2008, pursuant to
       the Settlement Agreement. Thus, the clear and enforceable language of the Everest Policy
       shows that there were no consent rights available to plaintiff, Hickey Malia, or the Chicago
       Institute and its counsel when the Townsley Lawsuit was settled on March 27, 2009.
       Casualty Insurance Co. v. Town & Country Pre-School Nursery, Inc., 147 Ill. App. 3d 567
       (1986). As a result, plaintiff did not have a right to consent to the settlement of the Townsley

                                                 -17-
       Lawsuit.

¶ 91                    IV. Denial of Plaintiff’s Motion to Vacate and for
                            Leave to File Second Amended Complaint
¶ 92       Plaintiff appeals the trial court’s denial of his motion to vacate and for leave to file a
       second amended complaint. Plaintiff claims that the trial court erred when it denied his
       motion which contained new factual and legal allegations that cured errors the trial court
       relied on in support of its finding summary judgment in favor of defendants. Defendants
       argue that the motion was properly denied because plaintiff’s factual and legal allegations
       were not new.

¶ 93                                    A. Standard of Review
¶ 94        The trial court’s decision of whether to grant a motion to amend pleadings is within the
       discretion of the trial court, and the reviewing court will reverse the trial court’s decision
       absent an abuse of discretion. Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76,
       82 (2006). “An abuse of discretion occurs when no reasonable person would take the view
       adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002)
       (citing In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998)). “In considering whether
       the trial court has abused its discretion in denying plaintiff’s motion for leave to file a second
       amended complaint, we look to the following four factors: whether (1) the proposed
       amendment would cure the defective pleading; (2) other parties would sustain prejudice or
       surprise by virtue of the proposed amendment; (3) the proposed amendment is timely; and
       (4) previous opportunities to amend the pleading could be identified. [Citation.]” Shutkas
       Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 82 (2006).

¶ 95                                    B. Abuse of Discretion
¶ 96       Plaintiff claims that the trial court erred it denied his motion to file a second amended
       complaint. In his brief, plaintiff repeats the allegations in his motion, arguing that the second
       amended complaint contained “new and more fully developed allegations that render
       erroneous the factual and legal basis on which the court relied in support of its orders”
       pertaining to summary judgment. Plaintiff argues that his second amended complaint
       contains a new claim of judicial estoppel and more specific allegations of damages. In
       support of his motion for leave to amend, plaintiff cites section 2-1005(g) of the Illinois Code
       of Civil Procedure, which states: “Before or after the entry of a summary judgment, the court
       shall permit pleadings to be amended upon just and reasonable terms.” 735 ILCS 5/2-1005(g)
       (West 2008).

¶ 97                                    1. Incomplete Record
¶ 98       Plaintiff has not provided this court with a transcript of the November 30, 2010, hearing
       on his motion for leave to file a second amended complaint. In support of the claimed error,
       the burden of presenting a sufficient record of the trial proceedings falls on the plaintiff.

                                                 -18-
        Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Because the record in this appeal is
        incomplete, we must presume that the trial court entered its order in conformity with the law.
        Foutch, 99 Ill. 2d at 392.

¶ 99                                   2. Defects in the Pleading
¶ 100       Regardless, plaintiff’s motion does not cure the defective pleading. An allegation of
        judicial estoppel in regard to the Lalicata Lawsuit would not succeed because the trial court
        found that defendant Everest had no duty to defend the claim in the first place. As previously
        stated, there cannot be a claim for judicial estoppel when there is no breach of the insurance
        contract. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 151
        (1999). Also, plaintiff’s allegation of damages relating to the Townsley Lawsuit would not
        affect the result because defendants did have an obligation to reimburse plaintiff’s defense
        costs until after the SIR was exhausted on December 15, 2008. As a result, plaintiff’s second
        amended complaint would not have cured plaintiff’s defective pleadings.

¶ 101                                  3. Prejudice to Other Parties
¶ 102        Additionally, allowing plaintiff to file a second amended complaint would prejudice
        defendants because it would allow plaintiff a “second bite at the apple.” Plaintiff failed to
        raise the issue of judicial estoppel or specifically allege damages for nearly two years since
        filing the instant case. In that time, plaintiff did not attempt to amend his pleadings until after
        he moved for summary judgment and lost. Allowing plaintiff to “start over” based on facts
        and legal claims that were previously available to him would burden defendants with
        additional litigation. Hartzog v. Martinez, 372 Ill. App. 3d 515, 522 (2007). Therefore, we
        find that plaintiff’s motion to amend, if granted, would cause prejudice to defendants in this
        case.

¶ 103                               4. Timeliness of Amendment
¶ 104       Also, plaintiff’s amendments to his pleadings were not timely. In Hartzog v. Martinez,
        372 Ill. App. 3d 515, 522 (2007), the court held that the following:
            “[I]t would seem that the standard to be employed in determining whether a party should
            be allowed to amend after the entry of a final summary judgment order would be more
            restrictive and akin to the standard used on motions to reconsider. The purpose of a
            motion to reconsider is to bring to the court’s attention ‘(1) newly discovered evidence
            which was not available at the time of the first hearing, (2) changes in the law, or (3)
            error in the court’s previous application of existing law.’ [Citation.] A motion to
            reconsider ‘should not be allowed in the absence of a reasonable explanation as to why
            it was not made available at the time of the original hearing.’ [Citation.]” Hartzog, 372
            Ill. App. 3d at 522.
        Plaintiff’s second amended complaint does not contain any newly discovered evidence that
        was unavailable at an earlier time. The new claim for judicial estoppel was only “new”
        insofar as it was newly added to the pleadings, and not due to a change in the law on the


                                                   -19-
        facts. Plaintiff also has not explained how his more specific damages allegations were not
        previously available when he filed his first amended complaint. Plaintiff’s amendments to
        the pleadings were not timely because they did not include any new factual or legal
        allegations that were previously unavailable.

¶ 105                          5. Previous Opportunities to Amend
¶ 106     In his motion to vacate and for leave to file a second amended complaint, plaintiff alleges
      that: “During the hearing on defendants’ motions for summary judgment, plaintiff requested
      leave to file a second amended complaint to address some of the factual and legal points
      raised by the cross-motions for summary judgment.” A review of the transcript reveals that
      plaintiff did not request leave to file a second amended complaint until the August 25, 2010,
      hearing, after the trial court had already denied plaintiff’s motion for partial summary
      judgment. A review of the appellate record does not indicate any earlier attempts to file a
      second amended complaint. Therefore, we conclude that plaintiff did not seek leave to file
      a second amended complaint until after he his motion for summary judgment had already
      been denied.
¶ 107     We cannot say that the circuit court abused its discretion when it denied plaintiff’s
      motion to vacate and for leave to file a second amended complaint. Plaintiff did not provide
      this court with a complete appellate record on the matter, so we must presume the trial court
      did not abuse its discretion, and the facts we have before us support that conclusion. Further,
      plaintiff’s second amended complaint did not cure defects in the pleadings, granting the
      motion would cause prejudice to defendants, plaintiff’s attempt to amend the pleadings was
      not timely, and plaintiff did not attempt to file a second amended complaint at an earlier date.

¶ 108                                    CONCLUSION
¶ 109     For the foregoing reasons, we find that this court has jurisdiction to review the trial
      court’s July 13, 2010, August 25, 2010, and November 30, 2010, orders, and we decline to
      reverse our order denying defendants’ motion to dismiss.
¶ 110     The Everest Policy neither provided plaintiff with coverage nor obligated defendant
      Everest with a duty to defend the Lalicata Lawsuit. Plaintiff was not covered under the
      Everest Policy when he filed his claim on March 29, 2004, and we find no reason to reverse
      the trial court’s July 13, 2010, order denying plaintiff’s motion for partial summary
      judgment.
¶ 111     Further, we affirm the trial court’s August 25, 2010, order granting summary judgment
      in favor of defendants. Plaintiff did not have a right to consent to the settlement of the
      Townsley Lawsuit, and plaintiff did not allege recoverable damages for the claimed late
      payment for the Townsley Lawsuit. Defendants’ defense payments for the Townsley Lawsuit
      were timely paid because the SIR did not obligate defendants to reimburse plaintiff until
      December 15, 2008.
¶ 112     The circuit court did not abuse its discretion when it denied plaintiff’s motion to vacate
      and for leave to file a second amended complaint. Plaintiff did not provide this court with


                                                -20-
      a complete appellate record on the matter, so we reviewed the pleadings to formulate our
      decision. Plaintiff’s second amended complaint did not cure the defects in the pleadings. In
      addition, granting the motion would cause prejudice to defendants, was not timely, and could
      have been filed at an earlier date.
¶ 113     We affirm the circuit court in all respects.

¶ 114      Affirmed.

¶ 115     PRESIDING JUSTICE LAMPKIN, specially concurring.
¶ 116     I write separately because I do not believe this court had jurisdiction to consider
      plaintiff’s December 22, 2010, appeal of the circuit court’s orders denying his motion for
      partial summary judgment (July 13, 2010) and granting defendants’ cross-motion for
      summary judgment (August 25, 2010) where plaintiff failed to file a proper posttrial motion
      that would have tolled the 30-day time period for filing a notice of appeal from a final
      judgment. However, I concur with the majority that the circuit court did not abuse its
      discretion in denying plaintiff’s motion for leave to file a second amended complaint.
¶ 117     As the majority correctly states, it is our duty to consider issues of jurisdiction. People
      v. Smith, 228 Ill. 2d 95, 104 (2008). A jurisdictional challenge presents a question of law that
      we review de novo. In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25.
¶ 118     Plaintiff’s motion provided:
              “The plaintiff, Fred Geisler, M.D., by and through his attorneys, *** hereby submits
          his motion for leave to file a second-amended complaint and to set aside and vacate the
          orders entered on July 13, 2010, and August 25, 2010, stating as follows:
                  1. On July 13, 2010, the court entered an order denying plaintiff’s motion for
              partial summary judgment. ***
                  2. On August 25, 2010, the court entered an order granting defendants’ motion
              for summary judgment. ***
                  3. During the hearing on defendants’ motions for summary judgment, plaintiff
              requested leave to file a second-amended complaint to address some of the factual
              and legal points raised by the cross-motions for summary judgment.
                  4. At that time, the court directed plaintiff to file a motion seeking leave to file
              a second-amended complaint.
                  5. Attached hereto is a copy of plaintiff’s proposed second-amended complaint.
                  6. The proposed second-amended complaint contains new and more fully
              eveloped allegations that render erroneous the factual and legal bases on which the
              court relied in support of its prior orders. For example, the proposed second-amended
              complaint contains more specific factual allegations and exhibits to support
              plaintiff’s position that defendants should be estopped under cases such as Employers
              Ins. of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127 (1999), from asserting the
              defenses to coverage for the Lalicata lawsuit on which the court based its summary


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              judgment orders.
                  7. The proposed second-amended complaint also contains new and specific
              allegations that plaintiff incurred damages in the form of additional attorney’s fees
              as a result of the 18-month delay in defendants’ payment of defense costs relative to
              the Townsley lawsuit. Such allegations cure the perceived defect that plaintiff had not
              alleged any contract damages related to the Townsley lawsuit and, therefore, could
              not sustain a cause of action under § 55 of the Insurance Code for such delay.
                  8. Section 5/2-1005(g) of the Illinois Code of Civil Procedure states: Before or
              after the entry of summary judgment, the court shall permit pleadings to be amended
              upon just and reasonable terms.’
                  9. It would be reasonable and just to permit plaintiff to amend his pleadings at
              this time by allowing him to file a second-amended complaint.
              WHEREFORE, for the reasons set forth herein, plaintiff requests that he be granted
          leave to file within 14 days a brief in support of this motion to reconsider which points
          out the errors in the court’s interpretation of the subject policy of insurance and further
          supports his claims that the court’s prior orders should be vacated, and that he be granted
          leave to file a second-amended complaint in substantially the same form as the pleading
          attached hereto.”
¶ 119     After reviewing the entirety of plaintiff’s September 24, 2010, “Motion to Reconsider,
      For Leave to File Second-Amended Complaint, and to Set Aside and Vacate Orders Entered
      July 13, 2010 and August 25, 2010,” I would conclude that, despite including the word
      “vacate” in the introduction and in his prayer for relief, the substance of plaintiff’s motion
      did not challenge the trial court’s prior orders. See Shutkas Electric, Inc. v. Ford Motor Co.,
      366 Ill. App. 3d 76, 81 (2006) (to determine whether a motion qualifies as a “posttrial
      motion,” we review the content, substance, and relief sought). Rather, the substance of
      plaintiff’s motion merely requested leave to file a second amended complaint to correct the
      errors in his amended complaint. Notably, those defects that plaintiff wished to cure were
      based on evidence that was within the doctor’s possession at the time he filed his first
      amended complaint.
¶ 120     Plaintiff, therefore, did not specifically request one or more of the types of relief set out
      in section 2-1203(a) of the Code of Civil Procedure (Code), namely, a rehearing, retrial,
      modification or vacation of the judgment, or other similar relief. 735 ILCS 5/2-1203(a) (West
      2010). In other words, plaintiff did not challenge the summary judgment rulings; instead, he
      requested leave to cure the defects in his complaint. Courts have repeatedly stated that a
      motion for leave to file an amended complaint does not qualify as “other relief.” Fultz v.
      Haugan, 49 Ill. 2d 131, 136 (1971); Shutkas Electric, Inc., 366 Ill. App. 3d at 81. As a result,
      plaintiff’s motion was not a valid posttrial motion and, therefore, did not toll the requisite
      time within which to file his notice of appeal under Illinois Supreme Court Rule 303(a)(1)
      (eff. May 30, 2008). Consequently, I would find that plaintiff’s December 22, 2010, notice
      of appeal did not provide this court with jurisdiction to consider the circuit court’s July 13,
      2010, and August 25, 2010, orders denying partial summary judgment and granting summary
      judgment in favor of defendants because those orders were final judgments lacking a timely


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        posttrial motion.
¶ 121       Although plaintiff failed to file a proper posttrial motion, his motion did seek leave to
        amend. In their appellant brief, defendants argued that this court also lacked jurisdiction to
        consider plaintiff’s motion to amend because the circuit court’s November 30, 2010, order
        denying that motion was not final and appealable where it did not ascertain and fix the rights
        of the parties as required by Rule 303(a)(1).
¶ 122       Rule 303(a)(1) requires that a notice of appeal be filed within 30 days after the entry of
        a final judgment. “An order is final if it ‘terminates the litigation between the parties on the
        merits or disposes of the rights of the parties either on the entire controversy or on a separate
        *** part of it.’ [Citation.] Further, an order is final when, if affirmed, the only thing
        remaining is to execute the judgment. [Citation.]” Village of Bellwood v. American National
        Bank & Trust Co. of Chicago, 2011 IL App (1st) 093115, ¶ 14.
¶ 123       While the circuit court’s August 25, 2010, order granting defendants’ motion for
        summary judgment in its entirety was a final judgment disposing fully of the controversy
        between the parties, the court’s November 30, 2010, order denying plaintiff’s motion for
        leave to amend, however, also was a final judgment in the sense that it terminated plaintiff’s
        right to amend his pleading and reinstitute litigation. Plaintiff filed his notice of appeal on
        December 22, 2010, within 30 days of that order. I, therefore, would find this court has
        jurisdiction to review plaintiff’s contention related to the circuit court’s denial of his motion
        to amend. Turning to the substance of that argument, I concur with the decision of the
        majority.
¶ 124       In conclusion, I would reverse this court’s May 17, 2011, order denying defendants’
        motion to dismiss the appeal for lack of jurisdiction and dismiss plaintiff’s appeal of the
        summary judgment rulings. However, I concur in the majority’s conclusion to affirm the trial
        court’s refusal to allow a second amended complaint.

¶ 125     JUSTICE GARCIA, specially concurring.
¶ 126     I write separately to express additional reasons Everest’s “lack of appellate jurisdiction”
      claim is wholly without merit.
¶ 127     On cross-motions for summary judgment, the circuit court denied summary judgment to
      Geisler on July 13, 2010; the court granted summary judgment to Everest on August 25,
      2010. On September 24, 2010, Geisler filed what he contends was his posttrial motion under
      both Rule 303(a)(1) and section 2-1203. In his motion, Geisler sought explicit relief. The
      motion asked that “the court’s prior orders [denying and granting summary judgment] ***
      be vacated.” Geisler’s request that the summary judgment order of August 25 be vacated
      plainly satisfies the definition of a posttrial motion in section 2-1203 as one that seeks “to
      vacate the judgment.” In addition, Geisler’s September motion sought leave to file an
      amended complaint. Geisler argued that the amended complaint would “address some of the
      factual and legal points raised by the cross-motions for summary judgment.” According to
      the motion, the amended complaint contained “new and more fully developed allegations that
      render erroneous the factual and legal bases on which the court relied in support of its [July
      13 and August 25] orders.” Based on the quoted language from the September motion, it

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      would seem beyond contention that the motion was “directed against the [summary]
      judgment” entered in favor of Everest as required by Rule 303(a)(1).
¶ 128     To all of this, Everest asserts that Geisler’s September motion is nothing more than a
      “Motion [that] sought leave to file an amended complaint.” Of note, Everest fails to explain
      what is missing from Geisler’s motion to qualify as a proper postjudgment motion under the
      express language of either section 2-1203 or Rule 303. Everest’s real contention appears to
      be that too much relief was requested in the September motion by requesting leave to file an
      amended complaint in addition to the request that the grant of summary judgment be vacated.
      Of course, case law is contrary to Everest’s implicit suggestion that insufficient detail was
      provided to support the relief Geisler requested to “vacate the judgment” as opposed to the
      numerous reasons he gave for requesting leave to file an amended complaint. See Kingbrook,
      Inc. v. Pupurs, 202 Ill. 2d 24, 31-32 (2002) (neither the Code nor the supreme court rules
      contain “a specificity requirement” for postjudgment motions arising from a nonjury case).
      Under the clear holding of Kingbrook, Geisler’s motion met the requirements of Rule
      303(a)(1) and section 2-1203 to qualify as a posttrial motion.
¶ 129     In Kingbrook, the supreme court addressed an issue similar to the one before this court:
      “In a nonjury case, what degree of detail must be included in a motion to reconsider for such
      a motion to qualify as a ‘post-judgment motion’ within the meaning of the Code of Civil
      Procedure (see 725 ILCS 5/2-1203 (West 1998)) and the rules of this court (see 155 Ill. 2d
      R. 301(a)), such that the motion will toll the time for filing a notice of appeal until its
      disposition?” Id. at 25-26. The essential facts in Kingbrook were undisputed. The circuit
      court entered summary judgment in favor of the defendants. Id. at 26. The plaintiff filed a
      single-sentence motion, titled “ ‘Motion for Reconsideration.’ ” Id. The single sentence
      stated: “[The plaintiff] hereby moves the Court to reconsider its decision granting severing
      [sic] judgment in favor of the Defendants.” Id. at 26-27. The circuit court denied the motion;
      the appellate court dismissed the subsequent appeal, concluding the reconsideration motion
      “was not a proper post-judgment motion.” Id. at 27. The supreme court reversed, ruling that
      the one-sentence motion for reconsideration was a proper posttrial motion in a case decided
      without a jury: “We decline to hold that post-judgment motions in nonjury cases must
      contain some undefined degree of detail, lest the filer risk that the reviewing court hold that
      motion is not a motion at all. It is not clear that a nonspecfic motion could not fulfill its role,
      and there is no reason to require the filer to guess how much detail is enough.” Id. at 33. I am
      unpersuaded by any suggestion that because Kingbrook addressed a motion titled solely as
      a “Motion for Reconsideration,” Kingbrook is not dispositive of the adequacy of Geisler’s
      motion that sought other relief in addition to its request “to reconsider.”
¶ 130     Geisler’s September motion was a comprehensive posttrial motion that both attacked and
      sought to vacate the summary judgment that was entered against him. Efficient use of our
      limited judicial resources means a comprehensive posttrial motion is no less favored than a
      single-sentence motion. This is particularly so when the movant contends that the entered
      judgment is faulty because an amended complaint would “cure” any defect in the pending
      complaint and the motion prays that the entered judgment be “vacated.” In this regard, I note
      that Geisler’s request that the court’s July 13 order denying his motion for summary
      judgment be vacated makes little sense in light of his request to file an amended complaint,

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      which, if granted, would necessarily mean that a material question of fact remained to
      preclude summary judgment in his favor as well. Equally unsupportable is Everest’s implicit
      contention that we ignore explicit “relief” language in the September motion that the circuit
      court vacate the judgment it entered in favor of Everest on August 25, and focus only on
      Geisler’s request for leave to file an amended complaint.
¶ 131     It is clear we have jurisdiction as Geisler’s September motion satisfied the requirements
      of the Code and Rule 303(a)(1) in a nonjury case, minimal as those requirements are, as
      Kingbrook made clear.




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