contractor hired to build a luxury home for the millers in the underlying lawsuit in paragraph twenty of count two it's alleged that mcewen converted would claim to sink in a few other items without consent in paragraph twenty the conduct was willful wanton and undertaken with an intent to defraud just to find punitive damages the underlying tube was tendered to pekin who denied coverage pekin claim that there was no occurrence alleged cross millers in iraq a tory answers which we believe created a question of fact whether an accident was involved as they describe a miscommunication we believe the trial court's ruling was an air base ten black letter insurance law pekin insurance policy covers occurrences which are defined does next the policy does not define an accident but numerous cases do the key question in determining something whether something is an accident is whether or not the injury was intended if the injury that was resulted was not intended it's an accident it's also black letter law that if the claim even potentially falls within coverage the insurer has a duty to defend plaintiffs here can prevail without proving facts that show an intent to injure this done their complaint the place of suit could for conversion while to prove that intentional tort they have to show an intentional act they do not need to show any intent to injure in fact in our brief we've cited numerous cases involving intentional torts from conversion trespass defamation excess or a where the court allege why how or that he did so knowingly only that the property was no only owned by plaintiffs the taking may have been intentional but no intent to injure is alleged in paragraph twenty one it alleges mckeown refused to return the property but it doesn't allege why or that there was an intent to injure paragraph twenty two dollars simply alleges resulting damages can prevail on their conversion claim on these allegations without ever proving an intent to injure i'd like to describe mchugh its decision because it illustrates a scenario a potential where he could be found liable despite no intent to injure in other words even if the conduct was an accident mckeown hired a subcontractor to tear down the existing home the sub contractor mistakenly took the planks of wood and other property and threw them out the queue and couldn't return them because they had been discovered this scenario is not consistent with the allegations of paragraph twenty or twenty one  according to this court's ruling and pekin vs hallmark the test is not whether the complaint directly alleges facts that show that the claim is within coverage provided by the policy rather the insure duty to defend a less the insurance cannot possibly cover the liability arising from the facts alleged and the terms of the policy clearly preclude coverage under all of the facts contention is that the claimant calls an accident despite the claimants could still prevail even if mccain wins contention is believed because the claimants don't need to show an intent to injure but since there is a potential for coverage under the facts of the duty to defend exists because entire case is based on the allegations of a separate paragraph paragraph twenty three dollars that alleges will wanton conduct and intent to defraud to support their punitive damage allegations that is irrelevant to the duty to defend plaintiffs can prevail on their punitive damn i'm sorry places can prevail on their conversion claim without prevailing on their punitive damage claim so there is a potential for coverage here he can also contends that this court has to look at every allegation of the and that's simply not the case in ruling against pekin in the home markets court ignored allegations pekin focused on in the play alleging that the defendants and each of them acted negligently find despite this that only once there was a scenario where only one defendant could be liable which was important as it was by curious liability coverage instead this court focused on the test that i just discussed which is if the plaintiffs can prevail without proving facts bringing the claim of skydive coverage the duty to defend exists for the reason stated before that's the case here we don't believe it was the supreme court decision and pekin vs wilson gave the court the ability to do so it said the court shouldn't be wearing blinders in ruling on a motion for summary judgment this court in pekin v dos allows the court to consider extraneous matters as well well this court in pekin versus dos cautioned against using material prepared by the insured that's not the case here the material that  asked the court to review it did ask the court to review the counter claim but what we're talking about now are in iraq in two or answers that were prepared by the claimant so for those reasons and the other reason set forth in our brief we believe the trial court's ruling was and they are happy to take any questions the panel may have that thank you the lawsuit was filed against mcewen and he received it it was sent to the insurance company for defense and the insurance companies that did not coverage so the insurance company actually had correct yes yes your honor so under you say it can they can proceed then to prove conversion without the intent to injure or defraud i know you don't have to prove your case at this point but how would that be accomplished generally the hulu millers could prove that mcewen intentionally took their property and here that occurred in that he hired a sub contractor and that subcontractor took that property but they do not need to prove they also need to prove that he didn't return it here he couldn't return it but that does not mean that he had any intent to injure it was just an accident the sub contractor mistakenly took the planks of wood when it demolished the house and threw the rest of the debris away and mcewen was in no position to return it because it didn't exist anymore it had been with that you know make a better clubhouse don't worry about it and things like that when this all comes to a head probably out there on the site not an allegation of not an allegation of place this complain  that they own planks of wood and they weren't returned it would still already what we're talking about i'm sorry go ahead finish what we're talking about here is the duty to defend not the duty to indemnify the only issue that we have in this coverage dispute is the duty to do so perhaps those allegations about the club house on the promise to build a better one maybe those are relevant to indemnity obligation but here the insurance company has a duty to defend whether or not the allegations are false or groundless ok didn't the the we'll call it the twenty five thousand dollars count just so that we don't use any words that are deceptive they would cover the whole thing right you would request that they cover the whole litigation when you say cover they would have a duty in my clear law they would have a duty to defend the entire case ok all right so let's go to again the complaint which he said was provided how do the allegations in that complaint and the responsibility to stick with those allegations or to consider those allegations with the driver and position those case again so again it's it's only a function of all my client michel is that there was a potential scenario that this claim could be covered  which does not require plaintiffs to prove facts that would take the case out of coverage the only way that piquant can take this case of the coverage is by showing that there was an intent to injure plates of skin prevail situation you know somebody puts their wallet down on the table that's right next to next to me the wallet looks just like mine i take the wallet i put it in my pocket they ask for their wallet back i say it's not your wallet i don't have to return it i'm mistaken that's an accident there's no intent to injure there but there was an intentional act i did take the wallet but at that point you can give them back because it's in your pocket he could get the wallet  right in the interactive tory issue where were those answers when was that answer tendered to the court or made part of this record for the court to consider in this case your honor i think that servers were august or september of twenty eight and the summary judgment motions were january february  iraq answers were tendered in connection with the summary judgment briefs ok so why wasn't it done sooner if that was so important to the process pekin it already denied at that point in time the can was welcome to monitor do whatever it wanted in the underlying case but i didn't feel at that point in time by tendering  when i got them that pekin would have taken any different position they had already denied they were lodged in their position based on the allegations of the complaint you were in litigation by that time so it wasn't like they they would have been surprised by it and ultimately maybe they were surprised by it is that part of the issue i don't believe that they have raised the timing of when they received the a rugged tory answers in any of the and why did the court say they wouldn't consider it or it wouldn't consider because it was the court believed it was only appropriate to look at the policy in the  letters to pique and they're not part of the record but i discussed my client's position i bring up that scenario about the sub contractor not because it's part of plaintiff's complaint but again my burd is only to show that there is a potential for coverage so again the underlying plaintiffs of legit materials were taken but they don't allege why or how the underlying place to settle that the materials were not returned but  allege why or how i only have to show up attention for coverage a possible scenario where there is coverage because everything has to be construed in the insureds favor so here i give you that scenario pleadings i'm sorry i don't know if it was in our counter claim if the name was or not it is not in the hula miller's complaint they want to known the name of the subcontractor because he did not kill and did not give  of time before the denial occurred it's what the insurance company knew before the denial occurred i don't know that information was not supplied to them before the denial occurred of course my client didn't have any idea that they were going to deny my argument is that under peek in and move in on motion for summary judgment the court can still consider matters that are outside of the complaint but my primary contention is we don't ever have to get there because based on the rule of miller's complaints alone there's a potential for coverage of the do does that exist while there is no dispute is there that pekin was not informed of your quote unquote stake flash accident theory i don't think that's true but it's there's nothing in the record though your honor we look at the rendered we don't look i agree your honor that's why i said there's nothing in the record i'm just trying to it may have been in correspondence but i agree your honor it was insurance company in this matter we have and we are the apple police court as mr brony discussed we are here today to talk about the duty to defend and that we've been talking about as everyone knows and insurers to to defend is determined in the st instance by comparing the allegations of the complaint to the terms of the policy here the complaint alleges in count two and they can't took the claimants property without permission refused to return it and did so with the intent to defraud the can policy provides that pekin will pay damages because of property damage caused by an occurrence the policy defines the term occurrence as an accident so i've been talking about the dispositive inquiry here is whether count two for conversion alleges that a covered accident occurred the clear and unequivocal language of the complaint confirms that there was no accident alleged the claimants clearly allege that mccann took their property without permission refused to return it and did so with the intent to defraud c suggests that the allegations of intent to injure do not sweep the claim outside of coverage counsel search that the allegations of intentional injury should be ignored because they are not necessary to prove the claimants claim for conversion we would submit to the court that the court cannot ignore the allegations of the complaint the court is charged with considering each and every allegation to determine whether or not the claims covered application of that basic principle in this case shows that the circuit court made the right decision and that there is no coverage from a can cans argument that there should be coverage because a claim is can prove conversion without also proving an intent to injure is flawed main reason being is the claimants not do not plead and an intentional or accidental conversion they did not plead that mickey  acted in good faith but in ignorance of their rights he did not plead that in taking their property the can was acting under a misapprehension or mistake expressly play it that macand took the claimant's property without permission refused to return it and did so with the intent to defraud i sound like a broken records because i am here this is a case where pekin does not have to do much more than simply tell the court to look at the allegations of co two and the terms of the policy comparing these together so that there is no coverage here we have a conversion claim for substantive allegations one of which states that mccann undertook to convert the claimant's property with the intent to defraud simply is no coverage under the pekin policy for conversion of property with the intent to defraud counsel referred to this court's decision and hallmark homes by belief did so in error basically for the proposition that the this court can ignore boilerplate language contained in the underlying complaint here specifically that would be the punitive damages allegations and hallmark homes though this court did not ignore the boiler plate phrase the defendants in each of them instead the court found that and this is a quote from the decision nothing about the phrase foreclosed the possibility of any one defendant being found soley liable under the complaint that's a page five hundred and ninety seven thousand five hundred and ninety eight that case the pekin endorsement only covered the additional insured for liability incurred solely as a result of some act or omission of the named insured so there the court didn't ignore the boilerplate allegations it actually specifically considered them and said that they did not foreclose the possibility of coverage persuasive st because they're both federal decisions that have not been cited by any court now annoyed for the proposition that a conversion claim is covered under a c d o policy on the cincinnati case the one author allegations of recklessness and the underlying complaint for the reasoning in the cincinnati case and the utica case cited by him can and any other case for that matter involving de is not a perfect fit for determining whether there's a duty to defend this conversion claim defamation and conversion are separate and distinct torts defamation is often expressed we covered by personal injury or advertising injury provisions in a c d o policy so like in the cincinnati case defamation usually isn't expressly enumerated and covered tort and as such the risk is already underwritten and agreed upon is covered the covered action by the parties and version on the other hand is not an enumerated tort covered by c d o policies it's not covered by the pekin policy specifically churns industry has not agreed to uniformly cover conversion under personal and advertising injury provisions if the court were to accept mccann's argument here every conversion claim would be covered so long as a complaint somewhere contains the basic elements of conversion regardless of what else the plaintiff may have alleged about the insurance conduct simply should not be the case well coverage does not hinge on the draftsmanship skills of the plaintiff is certainly begins in the st instance with an examination of all the allegations and the underlying complaint he wan position would have the court put on blinders and only look at those facts which mccann believes trigger coverage creates a slippery slope where does it end the better reason to approach is one that courts have been using for years like in the danner cited in our brief and that's to consider the entire complaint as a whole regarding mccann's counterclaims current claim in this action the court should not consider geishas there for two reasons st their self serving allegations that were filed after p can put its complaint declaratory judgment on file as abundance of case law holding that self serving allegations contained in pleadings filed by the insured cannot be considered indeterminate duty to defend especially where they are filed after the declaratory judgment on file they simply just do not trigger a duty to defend i mean if if anything they they show exactly what happened if they are considered at all we would some additional be considered st because they are extrinsic materials that are outside the underlying complaint that only came to pekin knowledge after the filing of the declaratory action and nd they don't demonstrate that the claimants complaint should be read as alleging an accident in fact the opposite they say nothing more than that there was a conversation where mccann told the claimants that there was some mix up with their property and there after apparently after this conversation the claimants didn't believe mckinnon because they filed  regarding some sort of factual determination that the that the court made and there's now there's an assertion in the cans brief that the court intruded on the fact finding process in the underlying action but that's not true the court simply took a look at the underlying can point and made the relatively easy conclusion that there is no accident alleged that this is a claim that is not covered there is no occurrence  such a finding does not preclude macan from asserting in the underlying action that it's conversion was not willful on malicious and oppressive were undertaken with the intent to defraud so for all those reasons and they resisted in our brief  for when the insurance company looks at the they just look at the word conversion and say no way because it's an intentional part no you have to take a look at all of the allegations and in the und complaint just look at the labels the insurance company gets the complaint and it's its task is to go through the allegations and to determine whether or not they're covered not to look at the labels well you did talk about the fact that the insurance industry has not know put that specifically in the policies and that's what i think that the court struggled with in cincinnati in utica was that there was this there is coverage for intentional tort specifically placed in the policy and then there was this exclusion you know saying oh yeah we don't cover intentional acts like well how does that work and so that's why i wanted to bring that up because i think that those cases are distinguishable you know from the case here based on the nature of the tort themselves and the fact that like one  the policy and one doesn't ok hold on a minute i have another question but i'm going to let me let me ask this one st why then can you not look at the issue of conversion is intentional but what was intended or what happened here is the deprivation of this clubhouse that they envisioned it an accident why can't you separate them first of all we have to look at the allegations of the underlying complaint and they claim and don't allege that this was an accident everything about the allegations themselves shows that it wasn't so in order for us to you know assume that there's some possibility that it was an accident that's what we would have to do we have to assume that you know the plaintiffs don't know what they're talking about we have to read a different version of the complaint that was played  they took the property in assuming that the property was destroyed that there was some sort of promise that you know hey we're going to we're going to make good on on our goof up or whatever and that never happened and so there was in the plaintiff's mind there was this this was intentional this was they did set out here mccann to to defraud them and this wasn't some accident or some innocent you know conversion whoops i picked up the wrong wallet just like you said it's like ok so they pick up the wrong wallet when when the claimants ask for the wallet back they can't give him the wall back has been destroyed and they don't even do what they promised to do to make it right you know so i think that's that's what we're looking at here but st and foremost you look at the underlying complaint and there's there's no suggestion or even h in and how it was was played and presented to pekin i can't say for sure how pekin would have responded with that information without knowing kind of those those additional facts generally custom and practice that the case gets tendered before answer assume that an answer it already been on file i did before i came here i looked through our claim file and i did see that there was an answer in an affirmative defense i haven't filed but i can't confirm whether or not it ended up in the record so i  don't want to bring it up here because if it's not in the records and i clearly can't discuss it why if there was an answer why would it be in the record t the underlying complaint is answered and it creates a question of fact wouldn't that be relevant to the type of an inquiry we i mean what we might not be here if it did you know so i can't it is not in the record i can't i don't want to i don't want to speak to it i can i'm looking at it on my screen but i i don't i can't find it in the record right now so i'd love to be able to point you to that because so you can take a look at it what does he can say when they deny coverage for that coverage pardon me duty to defend what do they do they just say we decline or do they set out reasons standard practice is to  prepare declamation of coverage a letter and we send that to the insured and then we inform them that we will if they don't agree with our position or withdraw the tender that we would likely file a complaint for declaratory judgment and we  set forth all of the reasons why it's not covered so in that answer you probably would say in this case we have considered the complaint underlying answer to the complaint and the affirmative defenses that have been filed on be on your behalf or you wouldn't acknowledge the answer or the affirmative defenses it depends on when we get when we get the suit and we can get the suit a day after it was served on the insured and i'm not going to happen to have the answers you've gotten if considerably afterwards right this one right yeah but i don't know i can i can look real quick to see when when the answer was filed again it's not in the record so this kind of a case but some would ask you know all right you know could have distinguished those interactive stories or said wait a minute they're not relevant to our initial inquiry why didn't you just let consider i mean even if you do it that they don't matter i think we did we did make them but i think that the to circle court just go on down to the st one let me just check my notes here if i may for a whether or not what the basis work behind the board absolutely and that's what the trier of fact in this case will do but in determining the duty to defend you you have to start with the allegations of the complaint and if the allegations of the complaint say you know you acted with an intent to defraud then that's how the plaintiff is has cashed it there their claim so when when a court takes a look at that and says ok there's no there's no coverage because the claim is an intentional you know injury claim it's not it's not saying it's not making a factual determination it's just it's just saying this is what the affidavit is there anything in the record regarding who that person or persons were that the demolition i have not seen that no your honor is your position that under the true but  the facts doctrine the insurance company would have to have an opportunity to investigate that possibility before denial of coverage correct that's correct ernest the program the purpose one of the main purposes of doctrine that's all i have thank you and not prevail on paragraph twenty three dollars the duty to defend is based based on numerous cases in illinois whether there's any potential there is coverage that's a clear potential there that the plaintiffs could prove conduct in paragraph twenty through twenty two dollars without ever finding any type of intent to defraud pekin is also wrong that courts have not found conversion claims are covered by g l policy in fact in pekin versus x data which is cited in the complaints that was coverage by a duty to defend sound for conversion claim coverage in insurance co have to allege any type of the accident they don't have to allege anything bringing this claim within the scope of coverage my client is entitled to a defense unless plaintiffs would have to prove facts that would positively take the claim outside of here the only way that would occur is if they proved an intent to defraud and as i said they don't have to prove an intent to defraud to prevail they can prevail on paragraphs twenty through twenty two without showing any type of intent to do so there's a clear potential for coverage here is focusing on paragraph twenty three because that's all they got the other paragraphs don't plead to any type of intent to injury i think this case oh and in the home our case they the pla specifically pledge that all the defendants were negligent coverage would only exist if one defendant was negligent and the other defendants liability rose out of negligence of the other defendant this court determined that there was a possibility that that could in fact occur despite the fact that that's not what point the plan and ruled that there was a duty to defend that's the same situation here it's a distinct possibility the burne didn't the pleadings actually have alternative and made it clear that there was an alternative that could have been applied that being that here there is no such such actual allegation made is there i agree that there's a difference in the allegation just around what are they what is taken supposed to be looking at the whole complaint and the allegations correct correct so they look at and that is not inconsistent with an accident there's a possibility it could be an accident they look at paragraph twenty one dollars and they look at paragraph twenty three dollars or twenty two dollars all of those can be an accident in fact even paragraph twenty three dollars could be an accident because the the trier of fact could find that there was willful and wanton conduct which is just a degree of negligence and not find an intent to defraud so if they look at the complaint that's what they're supposed to do they're only supposed to deny a duty to send if there the i'm doing the same thing so i'm not chastising i'm just trying to keep my own mind and i know i have something and because i'm old i can't remember  oh did you in fact when you tendered the actual case was  i don't believe so your honor what would that be relevant to an inquiry specially defenses an inquiry and wouldn't it identify those facts that you think would take this out of the exclusion so i agree with the general proposition that the duty to defend is determined based on looking at the policy and the complaints there's really no cases out there which talk about the fact that the insurance company has to look at the answer so i don't know that it would have been helpful to include the answer or any answer was done at the time the hula millers in iraq a story answers which i believe create a question of that they're different because those are prepared by mcewen and it seems that the cases that have been talked about the court constrictor considering extrinsic evidence are d materials like an answer or something else that the insured prepares but the answers to in iraq authorities were prepared by the hula millers but typical practices you would send to the insurance company the complaint because generally they would claimant but you know the party to ensure but if the facts are true or if the allegations in the complaint in answer are true or resumed it's true why wouldn't it be something that would be relevant to their in responsibility of the trial court and review to look at the point in its entirety not some hypothetical version i'm not asking this court to look at a hypothetical version what i'm asking this court to do is look at the actual complaint paragraphs two thousand three hundred and twenty two and i'm arguing that there is a potential for coverage there the what i'm saying is the fact that simply because the underline plain to also added to paragraph twenty three that justifies a punitive damage claim that they don't have to prove that to prevail and that doesn't obviate the duty to defend in fact there are numerous cases which said that the duty to defend isn't based on the draftsmanship skills of pla that were the case if this court had to rule based on intent to defraud in paragraph twenty three that would mean that any plaintiff could destroy the defendant's ability to get a defense from their insurance company by throwing some sort of intentional intent to harm allegation in the complaint and in fact the courts instead have rules that all directs are in favor of the insured everything has to be construed in favor of the insured just to prevent this type of thing  that you can can cite which indicates that an allegation which is not necessary for the claimant to prove somehow can defeat the duties that there's nothing out there with respect to the big nothing sub contractor that the demolition was correct correct driving all right that's all i had the court thanks both parties for their arguments today the case will be taken under advisement a written decision will be issue