it please the court my name is scott howie and i represent the plaintiff avalanche in this matter the pekin insurance company this is a case about liability insurance and it concerns one of the issues that is most fundamental and most basic to both insurers and their insurers the question of how to determine if an underlying action invokes the insurers duty to defend and more specifically what materials are relevant to that issue and more specifically still whose materials whose description should play a role in that process well this court answered that question in one thousand nine hundred seven in the case of zurich versus remark industries where it held and i quote the duty to defend an action brought against the insured is determined solely solely by reference to the complaint that is the underlying complaint the appellate court didn't follow that clear directive in this case aligning itself with a renegade group of first district cases that has gone beyond the underlying complaint and has consulted other materials specifically other pleadings filed by the insured himself or herself with regard to interpret ing the underlying case and determining if it doesn't fact invoke the insurers duty to defend by going beyond the underlying complaint and especially by going beyond the underlying complaint to consider pleadings prepared by the insured the fifth district contradicted zurich versus raymart and a host of other decisions in fundamental ways that this court must reverse and in fact there are cases council that say that you can go outside of the complaint as you alluded to in this type of situation where there's exception to an exclusion would there ever be a situation where a plaintiff would allege sufficient facts to bring that into play that exception to the exclusion it's not hard to imagine that there are situations like that and in fact i submit that it's not only is it reasonable to expect that a plaintiff might make the allegations that raise the subject of self defense and therefore would invoke the exception that's at issue here but that it's unreasonable to expect him not to in a case where those facts do in fact present themselves now it is certainly understandable that a pla are something that you could say that about the planet but you can also say about the insurance company why would they do that would be in their interest well both parties are limited by the zurich rule which provides the underlying complaint as the sole source of  specifically is determined solely by reference to that underlying complaint there are important and compelling systemic reasons for limiting the inquiry to that document and those reasons are embodied in the very notion of what liability insurance is liability insurance provides coverage and provides a defense where it applies against claims that are made by underlying plaintiffs it is it is intended to cover claims unlike property or casualty policies which are concerned with coverage for things that actually happened liability insurance is different it provides coverage but what a plaintiff claims happened and the underlyin complaint is the only document that reliably describes what the plaintiff's claim is if the insurance company is called upon to defend against a claim that is again the very notion of what liability insurance coverage does then that claim has to be interpreted from the perspective of the person making it the person who has it underlying might be the exception in the in the policy then would never come into play it renders it's  over a couple of reasons your honor one is the cross complaint is not what's covered it's not what makes the claim that the insurer is called upon to defend and so it's not a reliable descriptor of what the underlying plaintiff is seeking and what the underlying pla is describing is what provides the basis for coverage not what the the person who is the named insured it is not the manner in which that party describes the claim that invokes that the second reason that it's improper to consider a across claim or a counter claim as in this case and that is that it has it has an entirely different purpose it's raised by the named or by the insured in this it is intended to state a claim back against the original claimant to the purpose of the underlying complaint the sole source of coverage  descriptor of the claim itself the other pleadings in that case in particular in this case for example the counter claim is that the issue here has an entirely different purpose of stating a claim and therefore does something different it's intended to in some cases of such a pleading would be intended to diminish the plaintiff's claim or to refute it or to transfer the liability in this case it's an independent action if it happens to have been filed within the same action that was already brought that's what makes it a counterclaim but it's an independent assault ation and assault action leveled by the guilty because he acted in self defense then you don't have to pay he doesn't have to pay and if the insured acted intentionally but not in self defense the policy excludes coverage so i underlying complaint the duty to defend is not in invoke it doesn't it puts first of all we begin with the fact that this is an excluded claim because of the intentional act exclusion and that's no longer in dispute apart from the question of the self defense exception which we are which is before this court but the policeman every question of whether it's excluded by the intentional acts exclusion has already been decided in he can save or by both the circuit court and the fifth district that's no longer at issue it's not before this court so beginning with the fact that it is in fact excluded there is no allegation in the underlying complaint to give rise to out to  solely an assault case it is solely intentional acts even despite the underlying plaintiff's attempt to characterize those acts as negligence counsel is there any way that in this case the issue of self defense could have been put into play it could have been put into play by the underlying plaintiff in the under the and you wonder why players would be the person against whom the self defense would be like that's correct so they have the only way that we could consider self defense in this co be necessary for the plaintiff to have alleged the facts that in this case the defendant has alleged his own separate cause of action how could we ever expect a litigant to commit it like that that were against this very position that's if those are part of the facts your honor i don't think we can expect the plaintiff to do anything different certainly not in a legal regime that's if it's a fact pleading jurisdiction is illinois spenders according to come back to again and again is that w preclude considering the issue of self defense at all in any case such as the one that you agree or not if it would it would prevent the court from considering self defense if it's not raised by the plaintiff and the player may very well make an allegation perhaps even in the alternative that that the so called negligence of the defendants be insured was part of an action of self defense there is no systemic reason to expect that that wouldn't happen now it is certainly conceivable that many plaintiffs might be very reluctant to make those allegations i will concede that the notion of self defense is part of what actually happens then i think it is unreasonable to expect the plaintiff not to raise that it may be understandable that he won't want to it may make the case difficult to win it may make the case so difficult to win in fact that the plaintiff doesn't bring it but if that is part of the factual context in which the alleged assault occurred then it's it is entirely reasonable for that to be raised by the player not necessarily as the only basis on which he or she seeks to recover certainly it could be alleged in the alternative illinois has a long history of allowing pleadings to be made in the alternative  and that may be something that the plaintiff would would be so reluctant to raise that it would dissuade him or her from making the assault claim but if it is part of the factual background and if it is a true fact if you will then not only is it not unreasonable to expect him to make it but it's unreasonable to expect him not to this may be a rarely applied exception it may be a portion of a policy that is only very rarely invoked and only in very unusual and peculiar circumstances but that doesn't make it invalid and it certainly is not a basis for contradicting a rule that this court promulgated nearly a quarter century ago one that serves such important to stem it concerns of allowing the insurance company to determine what its duties are based upon the claim and the crying on caught up on the word self defense you're not asserting that the complaint here is to have the word solved if it is these questions are being manifest if the complaint said that the the plaintiff started to walk towards the defendant and the defendant picked up a pipe and hit the player right i mean it may give rise facts may give rise to a potential self defense defense it doesn't necessarily mean i don't think you're saying that that it doesn't necessarily mean that th self defense is going to prevail but to provide coverage there has to be some ala geishas that would support self defense theory that's correct your honor and your honors point is well taken that could be underlie complaint need not say in so many words that the defendant in an act of self defense injure the planet it doesn't need to be quite that explicit but there does need to be some basis for finding a potential for self defense and that's the nature of the case law involving the duty to defend the duty to defend is interpreted broadly and if the allegations of the complaint possibly give rise to that allegation or to that theory  self defense is in the complaint you need the word self defense you don't need the word self defense in or out of that i just ask you whether or not you are going to spend the time and energy to read into whether in that the man came in resolutely and there was a defense if that's in the underlying complaint that's beacon's job is to look to the underlying complaint and to see if given what's there what's on paper in that document if it allows for the possibility that the insured might be found liable but acting in self defense or for an injury cause in self defense has just said no what i did that it would be well first it doesn't have to state self defense it doesn't have to be explicit in that regard and just as car myers a concern i think is well taken but it doesn't take into account the fact that a complaint can allow for the possibility of self defense without specifically alleging it in those words this is a complaint because we have an issue here has already been interpreted not just by pekin but by the circuit court and the appellate court which of both found that it alleges only intentional acts it dozens and it alleges only an intentional assault it doesn't contain anything that gives rise to the possibility of self defense it is conceivable that another complains one not before this court in this case might allow for that possibility depending on what it contains i'm not a practice of drafting players complaints but it's not hard to imagine that a complaint alleging assault might contain facts that would enable a reasonable fact finder and by extension of the court in a coverage case to conclude that it allows for the possibility of self defense if it explicitly alleges self defense which agnel it is unlikely but still possible then that clearly invokes the exception if it allows for the possibility of an allegation of self defense even if it doesn't stated in those terms that would also give rise to a duty event but the complaint we have in this case facts of this case and certainly there are many cases in which the underlying complaint doesn't give rise to that inference or that possibility it would depend upon the facts of the case we have this case before us which alleges soley an assault he came to the place of business he brandished a steel pipe he injured the planet those are not allegations that allow for the possibility of self defense a different set of allegations might a different set of allegations might in fact be candid enough to suggest that the defendant actually did act in self defense and again i submit that that might be done as an alternative  an alternative theory of recovery and while that is an unusual and peculiar circumstance it is a possibility insurance policies are consumed with the notion of possibilities some of them very unusual or very rare there's an exception in most or there's an endorsement in most policies for nuclear war which thankfully is very rare but yet it is in fact a valid endorsement and the exception here may also be rarely invoked rarely used only in unusual circumstances but it doesn't make it any less valid for the purposes for which it's intended it is not intended for the purposes that it was used in this case by looking to your questions were being asked that it caused me to remind myself as on the questions i asked after the ruling of what had in the appellate court and how you would raise the issue of self defense in this case jack wilson bought a policy quite frankly honors he's not sophisticated in it not quite frankly the lawyers perhaps lawyers reading the fine print of these policies is difficult but there was a product offered it was a self defense exception to an intentional acts exclusion hard to get out but it it it's what we're here about today i'm thinking the plaintiff says mr wilson i was attacking mr wilson i was the aggressor and mr wilson then used too much force or use force that was inappropriate and if you think about the policy itself ty case but it goes to your questions i think about why do we have a provision in this policy that provides this this to this not defense but a and it's so defense accepted if it has no way of being ever used that w don't i'm going to concede to you when i read the complaint it doesn't use the word self defense and other than other than the fact that it says mr wilson picked up a pike and this is before the inference that could be drawn from that that mr billson picked up a pipe to go forward toward then i negligently that's that's not anything that i that i thought was appropriate i don't know why the plaintiff counsel added that i so maybe was trying to get coverage to come into play because by that i think by that time or there'd been a denial of coverage right not to do that and not to pay when an intentional tours in the us three with great so if every time that there is an intentional toward an automatic self defense exclusions going to be assessed to one when would they ever have the right to exclude for to pick up that bite but are you going to be excused from the conduct associated with picking up that pipe in some way and in this case they drafted the policy twenty twenty plus pages long the argument is that there is some  but the problem i have and while i try to raise an argument is the v a the insurance company are sophisticated in insurance policies but he certainly could limit their exception to the exclusion by a triggering event i mean we're sitting here talking about a variety of cases that this court has ruled on over the years to establish the what we look at but in this case we have another issue we have this this other i keep confusing exception to exclusion that i think it varies or in this case if they wanted to limit so that they could put that in there if you don't have something in there that limits it then it would be reasonable to assume that an insured must have some we're getting the benefit of his bargain or if he can't then the use of term of the appellate court illusory it's it's something there that she can never get and i think it's important that council all of us are struggling to find out when it would ever be so why do we put a provision in accepted your point justice that there might be one i don't know what it is but you read the policy as a whole and always all of these provisions that the court has set down as to how we interpret in this case jack wilson says i was defending myself and he can't get he can't get defended and if if this court finds that if this court finds that the underlying plaintiff has to allege it i think excuses the pekin from having to put something in there that would let customers and exception i mean this is not in the record but i know nothing about the exceptions to the exclusions to whatever i was filing a counterclaim i think if you look at the time i don't have a total recall i think i had filed my counter claim prior to the plaintiff revising to the insurance company has to look at the allegations of the complaints because their counter claim could be filed i'm not saying that you didn't this case but a counter claim could be filed for the very same reason that the  exception is self defense and then a counter things out that long to hold all of a sudden it becomes a self defense it was a great judge i believe that i believe that a person motivated motivated by alleging false facts could do that they would also have to be able to prove those facts but in the meantime they get a defense what i'm suggesting to you as is your the standard you set down by your prior rulings applying to all kinds of cases and the major cases that were involved when i was writing there were some are judgement cases they weren't judgment on the pleadings cases but they did involve this particular additional officer remedy this additional coverage that was provided that had no triggering language in it and you could very narrowly if you chose say that if you're going to offer this exception then then you and you want to restrict it you need to trigger it by some language in your own document because i think otherwise it's selling a product perhaps that does you can't use that i'll grant you your honor i don't believe mr wilson read his contract very closely but the insurance company read it closely and they presented that product to someone like him and he bought it i don't know that there's a great problem with that being posed out there may perhaps perhaps mr wilson before they ever denied that he was saying it wasn't that way but we don't want to consider that because we're going to look at the complaint i don't see i don't see why they didn't restrict the way they could be triggered if that was what they intended  oh i think they're i don't put words in their mouth but i think their position is you know where's the causal link between pick you know i injured my guys five to this six to weighs one hundred pounds more than my guy but those are not fast we'd ever get to might lead to other words or other interpretations or an inference to be drawn in this case it was somewhat of a concern procedurally in the underlying case when the trial judge basically dismissed basically dismissed the rule for the plaintiff on the pleadings not dismiss rule for the pla pleadings and it was an end in after he had he had done that i'm looking i'm looking at the the counter claim we came back argued again just dismissed the counter claim and senate and so on up i thought to myself what if i proceed on through this most clearly supports you there is there are no cases that have my set of facts the the language used i'm sorry to say that but but what i'm saying i would love to have a case that has an exception exclusion  those types of things because most of the cases that i read involve do involve that general policy and most of this court set down that we look to the pleadings for that that that deals with the bodily injury in the in the liability this is almost like i'm offering you a the words are relevant but they really don't deal with my facts and what they were looking at issues beyond the complaint for other reasons other than what i'm suggesting to you in this case a product was offered how do you ever get it they could when they could have limited  just i'm just a particular position for my client this is this is more a contract case than it is a public policy as a rick case i think in this case that the four corners is contract provide coverage that is not capable of being trigger a self defense exception would be by allowing him to raise it either and someone you mentioned just mentioned indemnity a minute ago and following up on what justice asked mr ali in this case since negligence is not an issue there is anyhow so i mean it's it's the defense it i'm very basic level when my client says i didn't do it that didn't happen that way defend me we can't enter into a very complex technicalities of of the of the policy in the law are we limited looking at i guess in this case we're limited looking at the pleadings as to whether there's an issue of self defense is there another mechanism by which this could come up should there be a factual hearing or in a day before a judge with action as to whether there is truly an issue of self defense or whether it's in fact ellie my my feeling about it is it would be that insurance companies would either fix it by a provision in their policies that trigger what they're insuring so they can actually calculate their risk assuming they did and left the language the same going forward in the future they could either stars or reservation rights take discovery and then at some point in time move move to be excused from defense but are the facts we have it's a little bit different i would not intice a paid if this court would see fit to find it that mr wilson is entitled to a defense at this time at this time based on the allegations that a raise that they wouldn't they wouldn't craft appropriate language to solve that problem so it's it's your position since we're dealing with a duty to defend rather than a duty to pay which is broader i mean i think counsel would acknowledge that it's just since we're dealing with that when we look because that was my question when we look at the facts of the counterclaim you have your client picking up the  right now doing anything with the play now right picking up the point yes so it's hard to see where you know there it that in the one hand if there was an intentional act that your client just beat the heck out of somebody with a pipe they don't have a duty to defend or pay just an intentional way if there is the situation that we talk about where is it might be where there's allegations that somebody came towards your client he picked up the pipe and hit somebody a few times you know maybe we have a situation there we're there is there could be liability at least if there is a finding that the self defense wasn't warranted although it's plenty in your counter claim it's just you picked up the pipe so what you're telling us is there might not be any liability at the end of the day for my client even if they believe the allegations of the complaint but there's still a duty to defend regardless of whether there's a duty to pay at the end of the day all mr johnson's complaint  s i don't i don't see how you could ever allege anything that would result in payment because if you read the policy it says we will ensure the reasonable use of force in self defense not the un reasonable use of force and and in this case in reasonable amount of force arguably there could be coverage but i just don't know those facts and in this case we would even get to those questions of self defense unless we go beyond the four corners of the underlying complaint no your honor that's because they would be the first of all there would be no judgement to pay because the judgement is not met not be a judgment against the insured that's what the policy promises to pay in circumstances where it  judgment in favor of the insured in his own separate counterclaim where whereby he recovers from the original plan if that's not what liability insurance is liability insurance would in a and insured against a judgment against him it would not pay a judgement in his favor that he recovers against someone else and i think that question lays bare the problem of considering a counter claim as in this case which has an entirely different function from that which liability insurance contemplates liability insurance is meant to provide coverage against claims that  claims the defendant's interpretation of the insureds interpretation of what that claim is is not germane to the interpretation of the claim itself liability insurance covers claims not actual events like property or casual coverage and the claim is still one for intentional acts and does not raise the possibility of self defense if the end of the day at the end of the trial there was a finding by the jury that wilson was not liable by reason of so defense would you then have an obligation to reimburse her and also please present a defense or not presented offense that would be a different set of circumstances but it would not and it still would not involve an underlying complaint making an allegation that is susceptible to the interpretation of self defense that is the clear bright line that this court drew in zurich it's a valuable line to have and it's it represents this is demick concern of making that judgment at the appropriate time when a defense is to be provided the how it then it's still my question before was then why have an exception if it never comes into play because you can't think of an idea or a time when a plaintiff would actually put something in a complaint that would be against his best interest like self defense so so what is the insured getting for his bargain on the insurance policy is it the expectation is or is it is going to if there's going to be a self defense response and intentional conduct he never is going to be able to recover never because he can't you can't look at anything else other than a complaint which is not going to be one that's favorable to him in any way respectfully your honor i take exception to the premise of your question that it will never come into play when would it give me an example it certainly would come into play if the if the underlying plaintiff were to allege explicitly that this occurred in self defense but if i didn't you know real life i don't think that would ever happen i acknowledge that that is extreme would be extremely rare but that the policy it contains a number of things that that in that pertain to circumstances that are extraordinarily rare not just that but my example was nuclear war before and there are others as well so firstly it is something that i'd be allege that explicitly it's it's unlikely but it's conceivable even though i even apart from that there are also circumstances where if it's not alleged that explicitly the pleadings mightst the underlying complaint might still give rise to to that interpretation and under other circumstances circumstances where we don't have solely intentional acts allegedly committed maliciously for the purpose of injuring the plaintiff even if it if we had circumstances that were more susceptible to the interpretation of being self defense then those circumstances would invoke the exception what  of the deposition that there is a self defense claim that can be made and mr wilson or whomever takes the copy of the depth of the sense that the peak in one of these three of them will then you would have something more akin to the true but on pleaded facts which is a subject i frankly expected to spend a lot more time discussing this morning to but that would be more a lot along the lines of decisions that have interpreted evidence outside the underlying complaint a have have concluded that if there are circumstances where the insurer knows conclusively of things or events or circumstances that would give rise to coverage then he can't ignore those can't as one court memorably put it he can't plain facts doctrine that is an acknowledged exception to the zurich rule and there are circumstances where so called true but on pleated facts do give rise to coverage even though they're outside the underlying complaint but interpret true but on pleaded facts make clear that they concern and so larry matters formalistic concerns things that go to the ancillary question of whether a putative insured really is an issue or whether he or she paid the premiums that sort of thing but it doesn't go to the question of allegations allegations in an underlying apartment in a pleading particularly one that is filed and prepared by the person who is seeking coverage  something there that we brought to the attention he can in this insurance would be provided for defense would be i that would raise some other concerns your honor and i agree i don't want to go so far as to say that that's a case where coverage would would apply but it would certainly not be it would not that argument can be dismissed for the same reasons it would arguably be a question of whether those are true but on pleaded facts and i think there's room for dispute about whether they would satisfy that doctrine but that would be the appropriate doctrine to apply and if it satisfied then it certainly would give rise to coverage in that case consistent with the way this court has always been sensitive and other courts have all been sensitive to the possibility of concocting allegations that the notion that that allegations and underlying pleading cannot be considered to be true but on pleaded facts and they can't be considered in this case for all these reasons your honor they'd be happy to address any other concerns of the court might have but otherwise i would simply ask the court to reverse the appellate court's decision and reinstate the circuit court's judgment in favor of pekin thank you thank you counsel case number one zero eight seven nine nine i will be taken under advisement