## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Em pire Indem nity In suran ce Co. v . Chi cago Province

of the Society of Je

sus , 2013 IL App (1st) 112346

Appellate Court Caption EMPI RE I NDEMNI TY I

NSURANCE COMPANY, Plaintiff-Appellee
, v. THE CHI CAGO PROVI NCE OF THE SOC I E T Y OF J ESUS, Def endant- Appellant (Dona ld J

. McGuire
, J ohn Doe 116, J ohn Doe 117, and J ohn Doe 118, Def endants and Interve ni ng Def endants; RL I I nsuranc e Company and M t. Hawle y Insuranc e Company
, Interve ning Plaintiffs-Appellee s; Pennsy l vania Gene ral Insuranc e Company
, I nterve ning Def

endant- Appellee ; First Nonprofit Insuranc e Co m p any , I nterve ning Def

endant and Interve ning Plaintiff-Appellee ; J ohn Doe 119 and Doe s 1 throug h 20, Interve ning D efe ndants).

District & N o. First District, F irst Division
Docke t Nos. 1-11-2346, 1-11- 2653 cons.

Filed May 13, 2013

Held (Note : Thi s sy ll abus

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from a dispute as to wh et h er d efe ndant, an insured relig ious order
, had cover ag e for the claims arising from alleg ations that

one of its priests sexually m o l es t ed minors, the trial court proper ly
enter ed summary judgme nt for sever al o f the insurers based on the finding s that the underly

ing complaints trig g ere d either the exclusion for “expected or intended” damag es, the exclusion applicable if any executive office r, supervisory employ ee, d i re ct or or trustee had actua l knowledg e of the abuse, o r t he limit ation of cover ag e to molestation

occur ri ng during the term of cover ag e; howeve r, the entry of summary judgme nt for one insurer that failed to provide complete copies of i ts policies was reve rsed and that cause was rema nded for further
proce eding s.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 07-CH-35007; the Hon. Martin Ag ran a

nd the Hon. L ee Pre ston, J udg es, pre siding.J udg ment Affir med in part an d reve rsed in part; cause rema nded for further
proce eding s.

Counsel on Appea l Peterson, J ohnson & Murra y , of Chicag o (Jennifer L

. Turiello, of counsel), f

or appe llant.

Stellato & Schwa

rtz, L td. (Esther Joy

Schwar tz, Richard D. Foody , and Theodore W. Pannk o k e, of counsel), Swanson, Martin & Be ll, L L P (Da niel G. Wil ls, of counsel), and Tressler L L P (Michae l J

. Duffy and Ashley L

. Conag han, of counsel), all of Chicag o, and Morison Holden & Pr o u gh
, L L P, of Walnut Creek, California (Michae l D. Proug h, of counsel), f

or appe llees.

Panel J USTI CE DEL ORT delivere d the judg ment of the c ourt, with opinion. Presiding J ustice Hoffma n and J ustice Rochford concur red in the judgme nt and opinion.

OP INION

¶ 1 The dispute we m u s t re s o l v e here is whether a Catholic relig ious order is insured for potential losses resulting from alleg ed molestation of minors by one of its p ri es t s

. T h e defe ndant-a

ppellant, the Chicag o Province of the Society of J esus (the J esuits), appea ls from order s g ranting summary judgme nt in favor o f Empire Indemnity Insuranc e Company (Empire)
, First Nonprofit Insuranc e Company (F NI C), RL I Insuranc e Company (RL I ), Mt. Hawle y I nsuranc e Company (Mt. Hawle y

), and Pennsylvania Ge nera l I nsuranc e Company (Pennsylvania Gene ral) (collec tively
, the Insurer s), in an insurance cover ag e dispute
reg arding the five insurers’ duty to de fend lawsuits br oug ht a g ainst the J esuits. T he J esuits contend that the trial court err ed in finding that: (i ) the “expected or intended injury ” exclusion in the I nsurer s’ pol icies applied; (ii) the claims of J ohn Doe 117 and his pare nts

occur red befor e the FNI C policies incepted; (iii) the FNI C policies’ “Cond i tion 1.A” exclusion, reg arding actua l knowledg e, applied; (iv) Pennsyl v an i a Gene ral owed no

cover ag e, where P en n s y l v an ia Genera l failed to produce copies of its policies; and (v) the alleg atio n s in th e u

n d e r ly in g claims did not potentially asser t damag es resulting from pastoral counseling activities. For the following rea sons , we aff irm in part, reve rse in part, and

rema nd.

¶ 2 BA CKGROUND ¶ 3 This case beg an when Empire filed a decla ratory judgme nt action (which FNI C, RL I
, Mt. Hawle y , and Pennsy lvania Gene ral eventua lly joined) seeking a fi nding that there was no

-2-duty to defe nd the J esuits ag ainst complaints filed by various alleg ed sexual abuse victims of defendant Donald J

. McGuire
, a former priest and member o f t h e J esuits. FNI C issued 1

o n e

- ye a r mu lt ip le -per il insurance policies, and Pennsylvania Gene ral issued one-yea r g e n e r a l liability policies. Empire, RL I
, and Mt. Hawle y eac h issued one-year umbrella liability policies.

¶ 4 The F NI C Insuranc e Policy ¶ 5 FNI C i s s u ed a nonprofit multipl e-pe ril insurance policy eff ective from November

30, 1998, to November 30, 1999, and subsequently rene wed the po l i cy o n an annual basis to November 30, 2004. The policy contained provisions covering “B odily Injury and Property Damag e L iability ” as well as “Sexual Abuse or Sex ual Molestation L iability .” The bodily injury cover ag e provided in pertinent part that FNI C would pay sums that the J esuits beca me leg ally obligated to pa

y as dama g es due to “ bodily injury or proper ty damag e to which this

cover ag e applies.” This c overa g e was further limit ed to bodily injury and proper ty damag e

occur ring “duringthe Ter

m of Covera g e” and s pecif ically excluded damag es “e x pecte d or intended from the standpoint of the insured.” The sexual abuse or molestation coverag e stated that FNI C would pay damag es that the J esuits become leg ally obligated to pay “ar ising out of any actua l, thr eate ned, intentional or unintentional sexual mol estation of any person to which this cover ag e applies.” The sexual abuse/molestation cover ag e was also limit ed to 2 sexual abuse or molestation occur ring “during the Term of Coverag e” and, under “Condition 1.a,” the cover ag e would be canc elled “if any executive office r, super visory employ ee, direc tor or trustee [had] actua l knowledg e of any act, incident or alleg ed act of sexual abuse

or sexual m o l es t ation.” The policy define d sexual abuse or sexual molestation as “the infliction of harm upon a person, by any employ ee, a g ent or repre sentative or volunteer of [t he J esuits]
, whether such harm is phy sical, em o t i o n al o r psy cholog ical in nature and is primarily sexually motivated.”

¶ 6 The Pennsylvania Ge nera l Poli cy ¶ 7 Pennsy lvania Gene ral issued a one-year g ener al liability policy beg inning on November 30, 1990, and rene wed the policy annually until November 3 0
, 1 9 9 8

. The policy cover ed bodily injury liability and “Pastoral Counseling Professi o n al L iability .” The cover ag e for bodily injury liability excluded such injury “expected or intended from the standpoint of the insured,” except for bodily injury “re sulting from the use of rea sonable forc e to p ro t ec t persons or proper

ty .” Wit h respe ct to the pastoral counseling profe ssional liability
, cover ag e

was excluded, i n t er a l i a , for damag es arising out of: (i) “the willful violation of a penal

T he J esu it s do not app eal the tr ia l cour t’ s deni al of the ir own m oti on for j udgm ent on t he 1 ple adi n gs b r ought unde r sec ti on 2- 615( e) of the Code of Civil Pro cedure (Cod e) (73 5 I LCS 5/2

- 615( e) (W est 200 8))

.

Subs equ ent pol ic ie s re m ov ed th e “a ny ac tu al
, th

re at en ed
, intenti ona l or uni nte nti ona l” te rms 2 andpr ovided cover age fo r d amag es “ar is ing out of se xua l moles ta ti on.”

-3-s t at u t e *** committed by or with the consent of the insured”; (ii) “the actua l or al l ege d

conduct of a sexual nature ” (although Pennsylvania Gene ral ag ree d to defe nd the J esuits in
any suit seeking damag es fro m s u ch conduct until judgme nt was rende red) ; and (iii) dishonest, fraudule nt, or criminal ac ts or omissions of the insure d.

¶ 8 The Empire Policy ¶ 9 Empire issued a one-year umbrella liability insurance policy beg inning on November 30, 2002, and re newe d the policy annually to November 30, 2005. The policy indemnified the J esuits for bodily injury liability cause d by an “occ urre nce” in excess of a reta ined limit

. An

occur renc e was define d as an “ac cident, i n cl uding continuous or repe ated exposure to substantially

the same ha

rmful conditions.” The E mpire pol icy also excluded cove rag e for bodily injury “either expected or intende d from the standpoint of the insure d.”

¶ 10 The RL Iand Mt. Haw ley Policies ¶ 11 RL I and Mt

. Hawle y both issued an umbrella l i abil ity policy to the J esuits. RL I ’s oney ear policy beg an November 30, 1990, and was rene wed annually to November 30, 2001. Mt. Hawley ’s policy

was e ffe ctive fr om November 30, 2001, to N ovember 30, 2002. Both policies provided bodily injury liability cover ag e, and as with the Pennsylvania Gene ral and Empire policies, they

also excluded cove rag e for bodily injury “expected or intended fr om the standpoint of the insured.” 3

¶ 12 The Unde rlying L itigation ¶ 13 Be g inning in Aug ust 2007, various “John Doe” complainants (her einaf ter, the J ohn Doe complaints) sued the J esuits, a lleg ing that they had been either sexually abused or sexually molested by McGuire
, then a priest and member of the J esuits who had also been a “tea cher

an d s cholasti c advisor” at L oy ola Aca demy
, a high school operated by the J esuits. T h e complaints all alleg ed neg lige nce, intentional infliction of emotional distress, and fra ud
ag ainst the J esuits. Significa ntly
, the com plaints claimed that the J esuits either knew or should have known of McGuire ’s abuse, beca use the J esuits wer e first a

pprised of McGuire ’s abuse of minors in 1969, when another abuse victim, J ohn Doe 84, repor ted to a Fr

. Schlax,

a Chicag o Arc hdiocesa

n priest, that McGuire had sexual l y ab u s ed him. Fr

. Schlax then alleg edly repor

ted that abuse to the J esuits and officia ls at L oy ola Aca demy
, including its president, principal, and headma ster. The J ohn Doe lawsuits further claimed that the J esuits had subsequently recei v ed n u m erous other complaints of sexual abuse of minors by McGuire
, all of which took place prior to the time of the abuse in the J ohn Doe complaints. The complaints also all alleg ed that, des pite this knowledg e of McGuire ’s activities and propensity to a

buse minors, the J esuits did not r eport these alleg ations to law enfor ceme nt.

Alt hough the RLI ’s 1990 to 1993 pol ic ie s did not con ta in a sep ar at e “ex pec te d or int end ed” 3

exc lus ion (whe re as sub seq uen t RLI pol ic ie s a n d t h e M t. Hawle y pol ic y did ), thi s exc lus ion was inc orp ora te d i nto th e 19 90 t o 19 93 RLI poli ci es’ def ini ti on o f a n “o ccu rr enc e.”

-4-I nstead, the J esuits tr ansfe rre d McGuire and allowed him to “r emain in ministry and trave l

around the world” solely

to avoid scanda l. ¶ 14 I n August 2007, J ohn Doe 116 filed a co m p l ai n t against the J esuits and McGuire, alleg ing that McGuire abused him from 1999 to 2003 while he was a minor. J ohn Doe 116 amende d his c omplaint in November 2007 and ag ain in September 2008. In addition to the

common alleg ations above, the second amende d complaint also alleg ed that, afte r repor ting his abuse by McGuire to Fr

. Sch l ax , J o h n Do e 84, his pare nts, and Fr

. Schlax met with
repr esentatives of the J esuits and L oy ola Aca demy reg arding these all ega t ions. Following this meeting
, J ohn Doe 84 transfe rre d to another J esuit school and M cG u i re was remove d from L oy ola Aca demy in the middle of the y ear

. J ohn Doe 116 also claimed that, in addition
to transfe rring M cGuire
, the J esuits confide ntially settled other victims’ sexual abuse alleg ations ag ainst McGuire to avoid scanda l. ¶ 15 I n October 2007, J ohn Does 117 and 118, who are brothers, filed a joint complaint also alleg ing sexual abuse by McGuire while they wer e minors. This complaint was amende d in October 2008. I n the amende d complaint, J ohn Doe 117 alleg ed that McGuire sexually abused him betwee n 1988 and 1989 and then sexually molested him in 1992 and 1994. His brother, J ohn Doe 118, claimed that McGuire sexually molested him in 2001 and had other “inappr opriate sex ual contact” with him in 2002. J ohn Does 117 and 118 also alleg ed that J ohn Doe 84 met with J esuit and L oy ola Aca demy repr esentatives, afte r which J ohn Doe 84 transfe rre d schools and McGuire was remove d from his position. Simi lar to J ohn Doe 116, J o h n Does 117 and 118 also claimed that the J esuits secr etly settled other alleg ations o f sexual abuse by

McGuire to avoid further scanda l. ¶ 16 I n April 2008, J ohn Doe 119 filed a complaint ag ainst McGuir e an d t he J esuits also alleg ing that he had been sex ually abused by McGuire as a minor beg inning in J une 1998. As with J ohn Doe 116 and J ohn Does 117 and 118, J ohn Doe 119 also alleg ed that J ohn Doe 84 met with the J esuits and L oy ola Aca demy officia ls prior to J ohn Doe 84 transfe rring to another school and McGuire’s r emoval fr om L oy ola Aca demy

. ¶ 17 I n Fe bruar

y 2009, J ohn Doe 129 and J ohn Doe 130 eac h filed individual complaints also alleg ing that they had been sexually abused by McGuire as minors. J ohn Doe 129 alleg ed that he had been molested by McGuire from 1988 to 1998, and J ohn Doe 130 alleg ed McGuire sexually abused him between 1990 and 1995. The se complaints, howeve r, did not alleg e a meetingbetwee n J ohn Doe 84 a nd repr esenta

tives of the Jesuits or L oy ola Aca demy

. ¶ 18 I n addition to the J ohn Doe complaints, J ohn and J ane Doe, the pare nts of J ohn Does 117 and 118, filed a complaint ag ainst the J esuits and McGuire in September 2009 in the fede ral district court in Arizona (the J ohn Doe pare nts’ complaint). The J ohn Doe pare nts’ complaint alleg ed neg lige nce, loss of filial consortium, and intentional infliction of emotional distress, and soug ht damag es ag ainst the J esuits and McGui re (w h o m they alleg ed the J esuits supervised or employ ed) resulting from McGuire ’s alleg ed sexual abuse of their sons. This complaint also alleg ed that the J esuits knew of McGuire ’s abuse of minors no later than 1969 and had been awa

re of other incidents betwee n 1969 and 1988 (whe n the abuse of their son, J ohn Doe 117, be g an), but re solved those claims conf identially in order to avoid scanda l.

-5-¶ 19 The De clar atory J udg ment Procee dings ¶ 20 The I nsurer s eac h filed various decla ratory judgme nt actions seeking a finding that they had no duty to defe nd the J esuits i n t h e u n d er l ying lawsuits. One of the first dispositi ve 4 motions hear d was FNI C’s motion for summary judgme nt. This moti o n , whi ch dealt with J ohn Doe 116’ s first amende d complaint and the or igina l complaint of J ohn Does 117 a nd 118, claimed in part that FNI C’s p o l i ci es excluded cover ag e beca use: (i) J ohn Doe 117’s claims took place afte r the eff ective date of the policies, and (ii) both th e “ex pecte d or intended” exclusion and also “Condition 1.a” (re g ard in g a c tual knowledg e) applied. The trial
court a g ree d, and grante d FNI C’s motion. ¶ 21 FNI C then filed a second motion for summary judgme nt, this time direc ted at J ohn Doe 116’s second amende d complaint, the amende d complaint of J ohn Does 117 and 118, J ohn Doe 119’s amende d complaint, and J ohn Doe 129’s orig inal complaint. This second motion
ag ain claimed that the “expected or intended” exclusion and Conditi on 1.a barr ed cover ag e. The trial court denied this motion as to the second amende d J ohn Doe 116 complaint, but
g rante d it ag ainst the other J ohn Doe complainants. The trial c ourt found that, unlike John Doe 116’s orig inal and amende d complaints, the alleg ations o f n egl i gence in his second amende d complaint did not include fac tual alleg ations that the J esuits had actua l knowledg e of McGuir e’s a

buse of John Doe 84. ¶ 22 On M ay 2 4
, 2 010, howeve r, the trial court g rante d the J esuits’ motion to rec onsider, which arg ued that the other complaints also did not include alleg ations of actua l knowledg e in their respe ctive neg lige nce claims. The trial court thus found that the claims asser ted wer e either within or potentially within FNI C’s policies, and conclude d that FNI C owed a duty to defe nd. ¶ 23 FNI C then filed its own motion to rec onsider that order

. FNI C’s motion argued that the
supreme court’s holding in Pek in Insurance Co. v

. W

ilson
, 237 I ll. 2d 446 (2010), require d the t rial court to consider all of t he factual alleg ations in the various J ohn Doe co m p l ai nts befor e deter

mining whether FN I C owed a duty to defe nd. FNI C thus conclude d that the absenc e of the s p ec i fi c alleg ation of the J esuits’ knowledg e of prior incidents of alleg ed sexual abuse within the neg lige nce co u n t was immaterial. On Dec ember 3, 2010, the trial
court gra n t ed t h i s motion, vacated its prior order
, and found that FNI C owed no cover ag e based upon the alleg ations in the prefatory “F acts” section of the complaint (re g arding the J esuits’s rec eipt of a repor t about McGuire ’s abuse of J ohn Doe 84 in 1969 and their failure
to war n the public of McGuire ’s behavio r), which prec eded the specific neg lige nce alleg ations. As a result, the trial court found that the FNI C policies’ “expected or intended” exclusion as well as Condition 1.a applied, barr ing c overa g e.

T he onl ine cas e inf

ormati on for the ci rc uit cou rt of Cook C o u n t y a s w el l as the Unit ed 4 Sta te s Dis tr ic t Cour t for the Dis tr ic t of Ari zona ind ic at e tha t the J ohn Doe complai nts and the J ohn Doe par ent s’ complai nt have ei the r bee n set tl ed or dis m is sed by st ipu la ti on or agree m ent

. T his cou rt

m ay ta ke j udi ci al not ic e of the publ ic doc um ent s tha t ar e inc lud e d i n t h e re cor ds of oth er cou rt s. Pfa ff v. Chrysl er Corp

. , 155 I ll

. 2d 35, 75 (19 92)
, ove r r u l e d o n o t her gro unds by ABN AM RO Mo rt gage Grou

p, I nc. v. M cGaha n , 237 I ll . 2d 526 (20 10) ; Ill. R. E vid. 803 (8) (e ff . J an. 1, 20 11)

. At o ra l a rgum ent , non e of th e pa rt ie s di spu te d t hat al l o f t he c ase s ha ve been se tt le d.

-6-¶ 24 Empire and Pennsy lvania Gene ral then filed individual motions for summary judgme nt, and Mt. Hawle y and RL I filed a combined summary judgme nt motion. The motions argued that these insurers wer e entitled to summary judgme nt for the same rea son that the trial court g rante d summary judgme nt to FNI C: the alleg ed claims wer e barr ed under the “expected or intended” e x clusions in their respe ctive policies. ¶ 25 Pennsy lvania Gene ral’s motion, which was direc ted at the J ohn Doe pare nts’ complaint, 5 also alleg ed that their complaint did n o t al l ege acts arising from profe ssional pastoral counseling
, and thus wer e not actua lly or potentially cover ed under the pastoral counseling profe ssional liability cover ag e in Pennsylvania Gene ral’s policies. The motion included the aff idavit of Tom Conlon, a repr esentative of Pennsylvania Gene ral. Conlon’s aff idavit stated that Pennsy lvania Ge nera l “ has provided the portions of the policies issued to [the J esuits] that it curr ently has available to [t hem].” The aff idavit also stated that Pennsylvania Gene ral did not “cur

rently have acc ess to the rema ining portions of the policies iss u ed t o [ the J esuits] .” The J esuits responde d by arguing that summary judgme nt was inappropriat e beca use P ennsy l vania Gener al di d not produce the actual policies, and si nce Pennsy lvania Gene ral wa s t h e p l aintiff and the movant, it had the burden of proof reg arding the policy provisions. ¶ 26 I n Fe bruar

y 2011, FNI C f

iled a motion for summary judgme nt w ith r espec t to the J ohn Doe pare nts’ complaint. FNI C argued that it owed no cover ag e or duty t o d ef en d b eca use J ohn Doe 117’s injuries took place prior to the ef fec tive date of

the policies, and there fore owed no cover ag e reg arding the claim broug ht by the par ents of John Doe 117. FNI C also invoked the policies’ exclusions for “expected or intended” injurie s, profe ssional se rvice s,

as well as Conditi on 1.a. On J une 21, 2011, the trial court g rante d FNI C’s motion, ag ree ing that the alleg ation in the J ohn Doe pare nts’ complaint that was predic ated upon the injuries
to J ohn Doe 117 was barr ed beca use those injuries took place prior to the policy ’s eff ective date. The trial court also ag ree d that the expected or intended injury exclusion applied beca use the alleg ations in the J ohn Doe pare nts’ complaint indicated that the J esui ts had
actua l knowledg e that McGuire had sexually abused minors prior to the alleg ed sexual abuse of John Does 117 and 118. ¶ 27 On J uly 13, 2011, the trial cou rt gra n t ed the summary judgme nt motions of Empire, Pennsy lvania Gene ral, RL I
, and Mt. H awley

. As to Empire, RL I , and Mt. H awley
, the trial
court found t h at , as it found with respe ct to the FNI C dispute, the “expected or intended” exclusion applied beca

use the complaints alleg ed that the J esuits ha d known of McGuire ’s prior sexual a

buse of minors be g inning in 1969 and had rec eived repor ts of other incidents and, therefor e, “should have anticipated or ‘e x pecte d’ t hat M cGuire would sexually abuse

or molest children.” I n addition, the trial court ag ree d that the claims did not alleg e an injury

cause d by an occur

renc e, which the policies define d in part as an “ac cident.” The trial court

I n a sep ar at e a ppe al , we r evers ed t he tr ia l cour t’ s g ra nti ng of summ ar y j udgm ent in fa vor 5 of Penn sylvania Gene ra l wit h re spe ct to cer ta in of the J ohn Doe complai nts

. Penn syl van ia Gene ral Ins ura nce Co. v. Chic ago Prov inc e of the Soc ie ty of Jes us , 2012 I L App ( 1 s t) 1038 28- U (Penn syl van ia Gene ral I

). Penn syl van ia Gene ral I is di s cus sed la te r her ei n in great er det ai l. See inf ra ¶ 58 et se q.

-7-noted that, since the complaints alleg ed that the abuse of the mi nors was expected or

intended and not a ccide ntal, the injuries did not arise f rom an insura

ble occ urre nce. ¶ 28 Wit h respe ct to Pennsy lvania Gene ral’s summary judgme nt motion ag ainst the J ohn Doe
pare nts’ complaint, the trial court also found that Pennsy l v an ia Gene ral’s “expected or intended” e x clusion applied for the s ame reasons it noted in its ruling on Empire ’s motion and the combined R L I/Mt. Hawle y m o t i o n

. The trial court further ruled that Pennsylvania Gene ral’s “Pastoral CounselingProfessional L iability ” cove rag e did not apply beca use the alleg ed inj uries in the J ohn Doe parents’ complaint did not arise from McG uire’s r ole as a spiritual advis or; rathe r, acc ording to the trial court, they arose “fr om McGuire ’s alleg ed sexual abuse o f J o h n Do e 117 and J ohn Doe 118.” In so doing, the trial court relied on excerpts from the missing policies and did not ad d re ss the J esuits’ argument reg arding Pennsy lvania Genera l’s failure to attach the actua l, complete policy to either its complaint for de clar atory

judgme nt or its summ ary judgme nt motion. ¶ 29 This timely

appea l follows.

¶ 30 ANALYSI S ¶ 31 On appea l, the J esuits contend that the circ uit court err ed in g ranting summary judgme nt to the I nsurer s on the issue of their duty to defe nd. Specifica lly
, the J esuits argue that the trial
court err ed in finding t h at : (i ) the “expected or intended injury ” exclusion in the Insurer s’ policies applied; (ii) the c laims of J ohn Doe 117 a nd his parents oc curr ed bef ore the FNI C policies incepted; (iii) the FNI C policies’ “Condition 1.A” exclusion, re gar d i ng actua l knowledge, applied; (iv) Pennsylvania Gene ral owed no cover ag e, wher e Pennsylvania Gene ral failed to produce copies o f i t s policies; and (v) the alleg ations in the underlying claims did not potentially asser t damag es re sulting fr om pastoral counse ling a ctivities. ¶ 32 Summary judgme nt is appropr iate “if the pleading s, depositions, and admissions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2010). Summary judgme nt is a drastic measure and should only be g rante d when the moving party ’s rig ht to judgme nt is “cle ar and fre e from doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co.
, 154 I ll. 2d 90, 102 (1992). “Where a rea sonable person could draw diverg ent infere nces from undisputed fac ts, summary judgme nt should be denied.” Id. We reviewa trial c ourt’s entry of summary

judgme nt de novo

. Id. ¶ 33 I n construing an insurance policy
, the court deter mines the intent of th e p ar t i es t o the
contra ct by construing the policy as a whole, with due reg ard to the risk underta ken, the subject m atter that is insured and the pur poses of the e ntire contract. Id. at 108. Where the words in the policy are cl ea r an d unambig uous, “a court must aff ord them their plain, ordinary, and popular meaning .” (Emphasis in orig inal.) Id

. Howeve r, if the words in the polic y are susceptible to more than one rea sonable interpre tation, they will be considere d ambig uous and will be strictly construed in favor of the insured and ag ainst the insurer that draf ted the policy

. Id

. Nonethele ss, courts will not strain to find an ambig uity wh ere none exis ts. Hobbs v. Hartford Insurance Co. o f t h e Mi d

w es t , 214 I ll. 2d 11, 17 (2005). “The construction of an insurance policy and a deter minat i o n o f t he rig hts and obliga tions

-8-there under are questions of law ***.” Konami ( America)

, Inc. v. Hartford Insurance Co. of Illinois , 326 I ll. App. 3d 874, 877 (2002). ¶ 34 Whil e an insurer’ s duty to inde mnify arises only if the fac ts alleg ed ac tually fall within

cover ag e, the duty to defe nd is much broade r. Crum & Forster Managers Corp. v. Resolution Trust Corp.
, 156 I ll. 2d 384, 398 (1993). “T o deter mine whether the insurer has a duty to defe nd the insured, the court must look to the al l egations in the underly ing complaint and
compar e these alleg ations to the rele vant provisions of the insu ra n ce policy .” Outboard Marine Corp.
, 154 I ll. 2d at 107-08. I f the underly ing complaint alleg es fac ts that fall “within

or potentially within” the cover ag e of the policy
, the insurer is obligated to defe nd its insured

even if the alleg ations are “groundless, false, or fra udulent.” (Emphasis in orig inal.) United States Fidelit

y & Gu a r a n ty Co. v. W

ilkin Insulation Co.
, 144 I ll. 2d 64, 73 (1991). “An insurer may not justifiably ref us e t o d ef

end an action ag ainst its insured unless it is clear from the fac e of the underlying complaints that the alleg ations fail to state fac ts which bring the case within, or potentially within, the policy ’s coverage

. ” (E mphasis in orig inal.) Id

. “More over, if the underlying complaints alleg e sever al theories of rec overy ag ainst the i n s u red, the duty to defe nd arises even if only one such theory is within the poten t i al

cover ag e of the policy .” Id

. The th re s h o l d re quirement that the complaint must satisfy to prese nt a claim of potential cover ag e is minimal; the co m p l ai n t n eed prese nt only a poss i b i l i t y , not a probability
, of recover y

. Bituminous Casualty Corp. v. Gust K. Newberg Construction Co. , 218 I ll. App. 3d 956, 960 (1991). ¶ 35 I n deter

mining whether

the alleg ations in the underly ing complaint meet that threshold require ment, both the underlying complain t an d t h e insurance policy must be liberally construed in favor of the insured. W ilkin Insulation Co

. , 1 4 4 I ll. 2d at 73. “[T] he duty to defe nd does not require that the complaint alleg e or use languag e aff irmatively bring ing the claims within the scope of the policy .” International I nsurance Co. v. Rollprint Pack aging Products, Inc.
, 312 I ll. App. 3d 998, 1007 (2000). In addition, the plaintiff in a dec laratory judgme nt action bear s the burden of proof. Farmers Automobile Insurance Ass’n v. Gitelson
, 344 I ll. App. 3d 888, 896 (2003). Finally
, all doubts are re s o l v ed i n the insured’s favor

. Employe rs Insurance of W ausau v. Ehlco Liquidat ing Trust
, 186 I ll. 2d 127, 154 (1999) (citing W ilkin Insulation Co.
, 144 I ll. 2d at 74). Wit h these principles in mind, we turn to the questions presente d here

.

¶ 36 The “ Ex pecte d or Intended” Ex clusion ¶ 37 The J esuits first contend that the trial court err ed in fin d i n g t h at t h e “e x pecte d or intended” exclusion applied. First, the J esuits argue that the alleg ations of neg lige nce wer e at least potentially cover ed under the Insurers ’ p o l i cies. Their second arg ument is that the trial court’s finding improperly deter mined an ultimate fac tual issue in the underlying litigation. Since the underlying claims have been settled or otherwise dismiss ed, we elec t to addre ss the J esuits’ first ar g ument. ¶ 38 As to their first ar gu m en t , t he J esuits contend that the complaints in the under ly ing litigation wer e “littered” with alleg ations that the J esuits either should ha ve known, should have been awa

re, or had constructive notice of McGuire ’s prior sexual abuse of minors. The

-9-J esuits then conclude that, s i n ce those alleg ations did not rise to the level of actua l

knowledg e, the “expected or intended” exc l u s i o n could not apply

. In addition, they claim that, in finding the “expected or intended” exclusion barr ed the claim, the trial court misread W ilson when it err oneously considere d the alleg ations outsi d e of those within the specific
neg lige nce c ount. We disagr ee. ¶ 39 At the outset, we note that the complaints do, in fac t, include alleg ations that the J esuits either should have known, should have been awa re, or had constructive notice of McGuire ’s prior sexual a

buse of minors. In addition, when an insure r see ks to avoid cover ag e under a policy exclusi o n , “t he applicability of t he ex clusionary clause must be clear and fre e from doubt.” Bituminous Casualty Corp. v. Fulkerson
, 212 I ll. App. 3d 556, 564 (1991). In other words, we must construe any limit ations on an insurer’ s liability li b erally in favor of the insured and ag ainst the insurer. Pek in Insurance Co. v. Estate of Goben
, 303 I ll. App. 3d 639, 642 (1999). As noted above, all doubts are resolved in the insured’s favor

. Ehlco Liquidat ing Trust
, 186 I ll. 2d at 154 (citing W ilkin Insulation Co.
, 144 I ll. 2d at 74). I t is well established, ho we v er , t h at the terms “intended” and “expected,” as used in simil ar insurance policy exclusionary clause s, are not sy nony ms: an “expected” injury is mere ly one that should have been “ rea sonably

anticipated” by

the insured. Bay State Insurance Co. v

. W ilson
, 96 I ll. 2d 487, 494 (1983). ¶ 40 Her e, the fac tual section prec eding the various counts of both the J ohn Doe and the J ohn Doe pare nts’ complaints alleg e that the J esuits wer e first apprised of McGuire ’s abuse of minors in 1969 and had subsequently rec eived numerous other complaints alleg ing McGuire ’s s exual abuse of minors, all of which took plac e prior to the respective tim es of the J ohn Does’ abuse. These alleg ations set forth that t h e J es u its rea sonably should have

an t icipated (or expected) McGuire ’s abuse of the underly ing J ohn Doe plaintiffs after t h e J esuits rec eived Fr

. Schlax’s repor t of J ohn Doe 84’s abuse in 1969 as well as numerous subsequent repor

ts prior to the abuse of t h e u n d erly ing plaintiffs. Since these alleg ations

wer e an ex p ected injury from the J esuits’ standpoint, the exclusion for “expected or intended” injurie s barr ed cove rag e under the var ious policies. ¶ 41 Moreove r, when deter mining whether an insurance company has a duty to defe nd, a trial
court need not “conside r eac h count in isolation and ignor e fac ts pled in other counts,” wher e the plaintiff has pleade d separ ate counts ag ainst various defe ndants but did not ple ad those
counts in the alternative. Illinois Casualty Co. v. T urpen , 84 I ll. App. 3d 288
, 2 9 3 (1 9 8 0 ). Her e, neither the J ohn Do e compl aints nor the J ohn Doe pare nts’ complaint alleg ed mere neg lige nce or r es

p o n d eat superior as an alternative theory of relief

. Prior knowledg e of McGuire ’s predilec tions is t he cor nerstone of

eac h J ohn Doe claim ag ainst the J esuits. We simply cann o t parse the alleg ations into smaller parts in order to fashion some insurable

cause of action that does not trig g er the “expected or intended” exclusion. Consequently
, the trial court did not err in ref using to consider those counts in isolation from the fac ts alleg ing the J esuits’ prior knowledg e of McGuire ’s n umerous incidents of sexual abuse of minors (and before the allege d abuse of the J o h n Do e p l aint iffs). Related to this point, the J esuits
argue that the trial court misread the supreme court’s holding in W ilson when it c onsidered the fa ctual alleg ations of McGuire ’s prior abuse in f inding that the neg lige nce c ounts were barr ed. This ar gument, howeve r, is without merit.

-10-¶ 42 I n W ilson
, the s upreme court held that a trial court could, under certa in circ umstances, look beyond the underlying complaint in order to deter mine an i n s u rer ’s duty to defe nd. W ilson
, 237 I ll. 2d at 459. Her e, the trial court did not look beyond the underly ing complaint in order to deter

mine the I nsurer s’ duty to defe nd, which the W ilson court held t o b e appropr iate “under cer

tain circ umstances.” Id. Rather, the trial court looked at the entire underlying c omplaint, which included fa ctual allegations of McGuir e’s se x ual abuse other minors prior to the abuse of the underly ing J ohn Doe complainants. The trial court thus did not misread W

ilson

. ¶ 43 This court has previo u s l y fo u n d t h e u n d erly ing actions of an insured to be cle arly intentional, notwithstanding the injured parties’ claims of neg lige nce. See, e.g. , W estfield National Insurance Co. v

. Continental Community Bank & Trust Co. , 346 I ll. App. 3d 113 (2003). The J esuits argue that the trial court err ed in rely ing upon W

estfield beca

use, unlike the insu re d s p o u s e (t he aunt) there
, the J esuits here are not “ac cused of eng ag ing in any ‘par ticipatory conduct’ re l at i v e to” the claims of the underly ing plaintiffs. We reje ct this
argument. ¶ 44 The holding in W estfield was pre d i ca t ed upon the insured party ’s failure to act, r ather th a n h e r p articipa

tory conduct. Notably
, the W estfield court made the following observatio n s :

“ The aunt did nothing

when [her husba

nd] l eft the ma

rital bedroom to visit the m inors in the ir bedrooms. Even when one of the minors locked herse lf in the bathroom cry ing, the aunt did nothing

. The allegations reflect the aunt’s awareness of her husband’s prior criminal involvement with minors in Florida and of her husband’s inappropriate phy sical
encounte rs with the minors; howeve r, despite this awareness, the aunt did nothing to advise or repor

t these circ umstances to the minors’ pare nts.” (Emph ases added.) W estfield , 346 I ll. App. 3d at 122. ¶ 45 I m m ed i at el y after making those observations, the court held that the i n s u re d p ar t y “re asonably should have anticipated or ‘expected’ the injuries, wh i ch were a natura l and probable result of her enabling acts, reg ardle ss of whether she co u l d anticipate the prec ise injury the minors would actua lly suffe r.” W

estfield , 346 I ll. App. 3d at 122. ¶ 46 Her e, the complaint alleg es that the J esuits (the insured party ) wer e awa

re of McGuire ’s abuse of minors on multipl e prior o ccasions and rea sonably should have anticipated or expected the injuries that McGuire would subsequently inflict on the J ohn Doe plaintiffs. As such, the expected or intended exclusion also applies here
, and summary judgme nt in favor of the Insurer s was wa

rra nted. ¶ 47 No netheless, the J esuits contend that the “expected or intended” exclusion should n o t apply b ec au s e t o do so would allow the alleg ations of intentional conduct to “over ride,
neg ate or oblite rate alleg ations of neg lige nt conduct.” In support of this contention, the J esuits cite Roman Catholi c Diocese of Dallas v. Interstate Fire & Casualty Co.
, 133 S.W .3d 887 (Tex. Ct. App. 2004), and Roman Catholi c Diocese of J oliet, I nc. v. Lee , 292 I ll. App. 3d 447 (1997). The J esuits’ relianc e upon Diocese of Dallas and Diocese of

Joliet
, howeve r, is mispl ace d. ¶ 48 At the outset, Diocese of Dallas was not a duty to defe nd case ; rather , it concer ned the duty to indemnify
, which involves a differ ent analy sis. Diocese of Dallas
, 133 S.W .3d at 890

-11-(obser ving that the policies at i ssue di d not provide a duty to defe nd). In addition, Diocese of Dallas was decide d by the Texas court of appea ls, and there was no discussion there in to demonstrate that Texas law trac ks the I llinois Supreme Court’s subs eq u ent holding in W ilson
, i.e. , that a trial c ourt may under c erta in circumstanc es look at all of the underlying pleading s to deter

min e an i nsurer ’s dut y to defe nd. In any event, it is well established that

case law from other states is not binding upon this court. American Freedom Insurance Co.

v. Uriostegui
, 366 I ll. App. 3d 1000, 1004 (2006). Fin al l y , Di o ce se of Dallas is fac tually distinguishable: the court in that case noted that there wer e alterna te bases for the neg lige nce claim other than the insured’s prior actua l knowledg e. Diocese of Dallas
, 133 S.W .3d at 895. Her e, the neg ligen ce co u n t was it self wholly g rounded upon the J esuits’ prior knowledge

. The neg lige nce counts of the J ohn Doe complaints mirror eac h other in that they claim that the J esuits should have known of Mc Guire’ s “prope nsities as a c hild sex ual abuse r” ba sed
upon “numer ous complaints or repor ts to the J esuits since 1961 that McGuire had eng ag ed in inappropriate conduct with minors.” There fore
, Dioceseof Dallas is unpersuasive. 6 ¶ 49 W i t h re s p ec t t o Diocese of Joliet
, we note that the issue on appea l also was no t t h e insurer’ s duty to defe nd. Diocese of Joliet
, 292 I ll. App. 3d at 449. In addition, that court did

n ot addre ss whether an exclusion for expected or intended acts applied; instead, the i s s u e prese nted was how m any insurable oc curr ence s took place. Id. Finally
, there was only one underlying plaintiff in Diocese of Joliet and, unlike this c ase, there wer e no claims that the diocese had been awa

re of other victims of the abusive priest befor e the underly ing plaintiff’s abuse. Thus, there wer e no alleg ations of a prior awa rene ss on th e p ar t o f the insured that would raise the issue of wheth er t h e diocese rea sonably should have anticipated the underlying plaintiff’s injuries. Since Diocese of Joliet is f a c tu a ll y d is ti n g

u is hable, the J esuits’ relianc e upon it is mispl ace d, as we ll.

¶ 50 J ohn Doe 117’ s and His Pare nts’ Injuries ¶ 51 Ne x t , the J esuits claim t hat t he trial court erre d in finding that FNI C’s policies did n o t

cover the claims of J ohn Doe 117 and h i s p ar en t s beca use he and his pare nts sufficie ntly alleg ed injuries that occur red during the p o l i cy t erm. The J esuits posit that the policies unambig uously provide that any injury occur ring during the policy term (including linge ring emotional o r p s y cholog ical inj uries) is cover ed reg ardle ss of when the harm g iving rise to the injury occur s. They conclude that the trial court e rre d in finding tha t da mag es resulting from J ohn Doe 117’s and his pare nt’s emotional and psycholog ical injuries occur ring during the policy term wer e not cover ed, beca use the sexual abuse of J ohn Doe 117 (betwe en 1988 and 1989, and in 1992 and 1994) occur red befor e the term of the FNI C policies (Nove mber 30, 1998, to November

30, 2004). ¶ 52 The parties ag ree that, wher e the policy languag e is unambig uous, it must be applied as written. Hobbs
, 214 I ll. 2d at 17. This court also may not strain to find ambig uity wher e none exis ts. Id. I n this c ase, the policy define d “sexual abuse or sexual molestation” in pe rtinent

T he complai nts of J ohn Does 129 and 130 ar e sub st ant ia ll y the same as the oth er J ohn Doe 6 complai nan ts : t hey al le ged tha t t he r epo rt s t ook pla ce “i n t he 1 960s and th er eaf te r.”

-12-part a s: “the infliction of har m of a sexual nature upon a per son by any employ ee, a g ent or repr esentative of [t he J esuits]
, whether such harm is phy sical, emotional or psy cholog ical.” We ca n n ot ag ree with the J esuits’ interpre tation that the manifestation of emotional or psy cholog ical injury during a policy period would under all circ umstances relate back to the infliction of the sexual abuse causing that injury
, even if, as here
, the sexual abuse took place well befor e the beg inning of the policy period. The prec ise act g iving rise to cover ag e is the infliction of some ty

pe of harmful or inappropriate sexual contac t, not the subsequent emotional or psy cholog ical ill eff ects from that contac t, even if those ill eff ects persist long afte r the sexual contac t occur red. To hold as the J esuits contend would improperly transfor m this occur

renc e-ba sed policy into a claims-base d policy

. See Stark v. Illinois Emcasc o Insurance Co.
, 373 I ll. App. 3d 804, 811 (2007). We there fore ag ree with the trial court that J ohn Doe 117’ s claims and those of his pa rents ar e not cove red by

the FN I C policy

.

¶ 53 The Ac tual Knowledg e Component of “Condition 1.a” ¶ 54 The J es u i t s al so claim that the trial court err ed in finding that FNI C’s cover ag e wa s avoided beca

use of “Condition 1.a,” which canc elled any subsequent sexual abuse cover ag e if any “executive office r, supervisory employ ee, direc tor or trustee” of the J esuits had “ac tual knowledg e of any act, incident or alleg ed act of sexual abus e or sexual molestation” commi t t ed by any “employ ee, ag ent, repr esenta tive or volunteer worke r.” Simi lar to their contention cente red on the “expected o r i n t ended” exclusion discussed above, the J esuits
argue that the complaints in the underly ing litigation are “littered” with alleg ations that the J esuits mere ly “should have known” of McGuire ’s abusive proclivities. The J esuits further

asser t that, even assuming ac t u al knowledg e of McGuire ’s tendenc ies, the underlying complaints do not identify which executive office r, supervisory employ ee, direc tor or trustee of the Jesuits had this knowledg e. ¶ 55 As discussed above, we construe an insurance policy as a whole, keeping in mind the risk undertaken, the subject mat t er t o b e insured, and the purposes of the entire contra ct. Outboard Marine Corp.
, 154 I ll. 2d at 108. Where the words i n the policy are clea r and unambig uous, “a co u rt must aff ord them their plain, ordinary, and popular meaning .” (Emphasis i n orig inal.) Id . I n addition, we may not strain to find an ambiguity wher e none exis ts. Hobbs , 214 I ll. 2d at 17. ¶ 56 Her e, Conditi on 1.a canc elled any subsequent sexual abu s e cover ag e if a “supe rvisory employ ee” of the J esuits had “act u al knowledg e of any *** alleg ed act of sexual abuse or sexual molestation” committed b y any “employ ee, ag ent, repr esenta tive or volunteer worke r. ” Fu rt hermore
, it is undisputed that McGuire
, a teac her and scholastic advisor at L oy ola Aca demy
, was an employ ee of the J esuits. The underly ing complaints plainly alleg ed that the J esuits wer e first apprised of McGuire ’s abuse of m inors in 1969, when J ohn Doe 84 repor ted to Fr

. Schlax, a Chicag o Arc hdiocese priest, that McGuire had sexually abused him. The underlying complaints also alleg ed that Fr

. Schlax repor ted that abuse to the J esuits and officia ls at L oy ola Aca demy

. In addition, the complaints of J ohn Does 116, 117 and 118,

as well as J ohn Doe 119 alleg ed that, afte r repor ting his abuse, J ohn Doe 84, his pare nts, and Fr

. S ch l ax met with repr esentatives of the J esuits and L oy ola Aca demy
, including t h e

-13-president, the headma ster, and the principal of the aca demy

. In other words, the complaints

alleg ed that supervisory employ ees (the president, principal, an d the headma ster of the

aca demy ) had actua l knowledg e of an alleg ed act of sexual a buse (inflicted upon J ohn Doe 84) by an employ ee, a g ent, re prese ntative or voluntee r worke r (Mc Guire) . In light of these al l ega t ions, the trial court proper ly found that Conditi on 1.a barr ed any cover ag e for t h e underlying c omplaints. ¶ 57 The Jesuits dispute this, howe ver, contending that only highe r-r ankingmembers of the J esuit o rga n i z at i on wer e supervisory employ ees and that the exclusion was not trig g ere d unless some y et even highe r, but unspecifie d, J esuit authority was notified of McGuire ’s activities. Taking into acc ount the customary instit utional structure of Americ an high schools, we find this argument to be utterly implausible. Whil e the insurance contra ct does not define “ supervisory

employ ee,” and it includes t hat t erm with such titles as “e x ecutive office r,” “dire ctor,” and “trustee ,” we find that a plain rea din g of the term “super visory employ ee” clea

rly includes the president, principal, and headma ster of L oy ola Aca demy (the J esuit high school wher e McGuire was employ ed as a teac her and spiritual advisor). The trial
court there fore corr ectly g rante d summary judgme nt in favor of the Insurer s on this basis, as well.

¶ 58 Pennsylvania Ge nera l’s Coverag e ¶ 59 The J esuits’ final contention is that the trial court err ed in finding t h at P en n s y lvania Gene ral owed no cover ag e. Specifica lly
, they first argue that Pennsylvania Gene ral’s failure
to produce its policies cre ated a question of materia l fac t as to the content of those policies,
prec luding summary judgme nt. Their second point is that the alleg ations in the J ohn Doe
pare nts’ complaint either sufficie ntly all ege d damag es arising out of pastoral counseling activities or raised a question of materia l fac t as to what con s titutes pastoral counseling activities, also pre cluding summary judgme nt. ¶ 60 I n Pennsylv ania Gene ral I
, t h i s co u rt co n s i dere d Pennsylvania Gene ral’s c overa g e obligations of the J ohn Doe complaints. There
, the J esuits appea led the trial court’s decision
g ranting Pennsy lvania Ge nera l’s motion for summary judgme nt with respec t to J ohn Does 117, 118, 1 2 9, and 130. Pennsylv ania Gene ral I
, 2012 I L App (1st) 103828-U, ¶ 2. The J esuits contende d that: (i) a question of fac t exis ted reg arding what the insurance polices
actua lly provided; (ii) the “expected or intended injury” exclusion did not fore close cover ag e for bodily injury and, in deciding that the exclusion did apply
, the court improperly ruled on

an u l t i mate fac tual question in the underly ing actions; and (iii) the pastoral counseling profe ssional liabilit y

cover ag e endor sement in the policies cove red the claims. Id. ¶ 61 Wit h respe ct to their first point, the J esuits arg ued that questions of materia l fac t e x isted
reg arding the content of Pennsylvania Gene ral’s policies beca use Pennsylvania Gene ral, in support of i t s cl ai m s that it had no duty to defe nd or indemnify the J esuits and in its subs equent motion for summary judgme nt addre ssed to those claims, relied on g ener ic,
prepr inted policy fo rm s as opposed t o actua l, complete copies of i ts insurance ag ree ments with the Society

. Id. ¶ 20. For rea sons that r emain unknown, Pennsylvania Gene ral has not
y et found a ful l co py of its own actua l policy insuring the J esuits. We noted that

-14-Pennsy lvania Gene ral initially attache d to its fourth amende d comp l ai n t all forms and

documents P ennsylvania Ge n er al al leg edly had relating to the pol icies, as well as a sworn aff idavit from one of its “re prese ntative[s] ” stating that Pennsylvania Gene ral had provided the available port i o n s o f t h e J esuits’ policies, but it did not have acc ess to the rema ining portions of the J esuits’ policies. Id. Pennsylvania Gene ral then filed a motion for summary j u d gm en t and a supporting memorandum attaching the same forms, as well as a swo rn aff idavit from a senior underwriter and assistant vice president for its pare nt company stating that the policy provisions attache d to the motion for summary judgme nt wer e the “oper ative parts” of the J esuits’ policies. Id. ¶ 21. In response , Pennsylvania Gene ral argued: (i) section 2-606 of the I llinois Code of Civil Procedur e (735 I L CS 5/2-606 (West 2010)) only require d it to attach the rele vant portions of the policies and not c omplete copies of them; and (ii) it

was up to the J esuits to either produce any additional provisions they believed wer e rele vant, counter t h eir senior underwriter’ s aff idavit, or reque st additional discovery

. Pennsylv ania Gene ral I , 2012 I LApp (1st) 103828-U , ¶¶ 30, 32. ¶ 62 W e re

jected Pennsy lvania Gene ral’s arg uments. As to its first argument, we held t h at section 2-606, which concer ns claims or defenses, was inapplicable beca use P ennsyl vania Gene ral ha d filed a motion for summary judgme nt. Id. ¶ 30. As to its second a rgument, we observe d that, in order to interpre t t h e co v era g e provisions of an insurance policy that are rele vant to the alleg ations of an underlying complaint, a court must construe those provisions “in the context of the insurance policy as a whole.” Id. ¶ 31 (citing Crum & Forster Managers Corp.
, 156 I ll. 2d at 391). We further noted that Penn s y l v ania Gene ral, as the plaintiff, had the burden to provide as much of t h e wr i tten document as nece ssary to the deter mination at ha

nd, which meant the entire policies, not just portions thereof , but that it failed to explain: (i) why the policies wer e unavailable
, (ii) its diligenc e in looking for them, (iii) why it believed the provisions it attache d t o i t s s ummary judgme nt motion wer e the
operative parts, or (iv) whether those operative parts wer e copies of actua l policy provisions. Id. ¶¶ 32-33. As a result, absent proof by Pennsylvania Gene ral that the attache d documents

wer e the best evi d en ce of the J esuits’ policies, the documents wer e insufficient and Pennsy lvania Gene ral had failed to meet its burden. Id. ¶ 33 (citing Zurich Insurance Co. v. Raymark Industries, Inc.
, 145 I ll. App. 3d 175 (1986))

. We thus reve rsed the judgme nt of the trial court on this issue and rema nded for further proce eding s. Id. ¶ 30. Pennsylvania Gene ral did not petition t he supre me cour t for leave to appe al our de cision. ¶ 63 I n this appea l, Pennsylvania Gene ral, howeve r, argues that our prior decision was clea rly

er roneous. As in the prior appea l, Pennsylvania Gene ral claims that it was not o b l i gat ed under section 2-606 of the Code of Civil Procedur e (735 I L CS 5/2-606 (West 2010)) to produce the complete policy
, and that the J esuits had the burden to pr oduce some evidenc e to support its position that additional po l i cy terms wer e implicated. These arguments, howeve r, were presented and rejected in Pennsylv ania General I
, and thi s court remanded the mat t er fo r further proce eding s. Pennsylvania Gene ral has prese nted no argument to convince us that the holding in Pennsylv ania G eneral I was err oneous or should othe rwise be rec onsidered. Acc ording ly
, we must reve rse the trial co urt’s g ranting of summary judgme nt in favor of Pennsylvania Gene ral, and rema nd this c ause for further proce eding s. ¶ 64 Finally
, b ec au s e o f o u r h o l d i n g o n t h i s issue, we need not deter mine whether

-15-Pennsy lvania Gene ral’s “expected or intended” exclusion applied or whether the J ohn Doe

pare nts’ complaint sufficie ntly alleg ed a claim under the provision providing cover ag e for “Pastoral Counseling Professional L iability .” These are matters that shall be deter mined by the trial cour

t upon remand.

¶ 65 CONCL USI ON ¶ 66 For these rea sons, the trial court corr ectly g rante d summary judgme nt in favor of Empire, FN I C
, R L I
, and Mt. Hawle y , beca use the underly

ing complaint: (i) alleg ed fac ts that trig g ere d either the “expected or intended” or the “Condition 1.a” exclusion; or (ii) alleg ed injuries that took place outside of the policies’ eff ective dates. The trial court did, howeve r,

err in g ranting Pennsy lvania G e nera l’s motion for summary judgme nt, beca use Pennsylvania Gene ral failed to provide complete copies of its insurance policies. Acc o rd i n gl y , the judgme nt of the trial court g ranting summary judgme nt in favor of Pennsylvania Gene ral is

reve rsed, a

nd the ca use is rema

nded for further proce eding s.

¶ 67 Affir

med in part a

nd reve rsed in par

t; cause r emande d for f

urther pr ocee dings.

-16-