## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Byer Clini c & Chiropr actic, Ltd. v. State Farm Fire & Casu alty Co. ,

2013 IL App (1st) 113038

Appellate Court Caption BY ER CL I NI C AND CHI ROPRAC TI C, L TD., I ndividually an d as t he Represen t ative of a Class of Simi larly -Situated Persons, PlaintiffAppellant, v. STA T E FARM FI RE AND CASUAL TY COMPANY, ENI VA USA, I

NC., ENIVA I

NTERNATI ONAL
, I

NC., ENIVA I CDI SC, I NC., KAPRAUN, P.C., and DR. MI CHAEL KAPRAUN, Def endants- A

ppellees.

District & N o. First District, Second D ivision Docke t No. 1-11-3038

Filed Rehea ring denied Marc h 12, 2013

April 10, 2013

Held (N ote : Thi s syl lab us

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

par ed by t h e 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

. ) The dismiss al of plaintiff’s action seeking a decla ratory judgme nt that defe ndant insurer had a duty to defe nd an underly ing class action alleg ing

a violation of the Telephone Consumer Protection Act was upheld based

on the court’s f

in d in g th a t defe ndant insurer was defe nding the underlying suit subject to a rese rvation of ri ghts and no justiciable controve rsy exis ted “at this t ime.”

Dec ision Under Review Appea l from the Circuit Court of Cook Co unty , No. 11-CH-7102; the Hon. Stuart Palmer, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Ander son & Wanca, of Rolli ng Meadow s (Bri an J

. Wanca, David M. Oppenhe im, and J ef

fr ey A. Be rman, of counsel), and Boc k & Hatch, L L C, of Chicag o (Philli p A. B ock, of c ounsel), for appellant.

Dy kema Gossett PL L C, of Chicag o (R o s a T u mialan, of counsel), for appellee s.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Quinn and Connors c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Plaintiff Byer C l i n i c & Chiroprac tic, L td. (B y er)
, appea ls the order of the circuit court denying its motion to rec onsider the court’s dismiss al, pursuant to section 2-619(a )(9) of the I llinois Code of Civil Procedur e (Code) (735 I L C S 5 / 2 -6 1 9(a) (9) (West 2008)), of Byer’ s decla ratory judgme nt action ag ainst defe ndant State Fa rm Fire & Casualty Company (State Fa rm). On appea l, Byer contends the trial court err ed in denying its motion to rec onsider beca use (1) t h e t ri al co u rt should not have based its dismiss al on the finding that no j u s ticiable controve rsy exis ts as to Dr. Michae l Kapr aun and Kapr aun, P.C., wher e St at e Fa rm first raised t h e argument in response to Byer’ s answe r to the motion to dismiss ; (2) S t ate Fa rm is judicially estopped from arguing that no case or controve rsy exis ts wher e i t acknow ledg ed the exis tence of a controve rsy betwee n the parties in another case ; and (3) Byer, as a third-par

ty victim, has standing to seek a decla ration of rig hts over an insu re r’ s

cover ag e when the insurer is defe nding its ins u red under a rese rvation of rig hts. For the following rea sons, we conclude the circ uit co u r t c o rre ctly denied Byer’ s motion to rec onsider and af firm.

¶ 2 J URI SDI CTI ON ¶ 3 The trial court denied Byer’ s motion to rec onsider on September 12, 2011. Byer filed a notice of appea l on October 12, 2011. Acc ording ly
, t h i s co u rt has jurisdiction pursuant to I llinois Supreme Court Rules 301 and 303 g overning appea ls from final judgme nts enter ed below. I ll. S. C t. R. 301 (eff. F eb. 1, 1994); R. 303 (e ff. Ma y 30, 2008).

¶ 4 BA CKGROUND ¶ 5 Byer fi l ed a cl ass-a ction complaint ag ainst Eniva USA, Inc., Eniva International, I nc., Eniva I c-D isc, Inc. (c ollectively Eniva), Ka

praun, P.C., Dr. Micha el Kapr aun (collectively Kapr aun), and J ohn Does 1 throug h 10, alleg ing a viola t ion of the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2006))

. On Fe bruar y 24, 2011, Byer filed

-2-a complaint for decla ratory judgme nt naming State Fa rm, Eniva, and Kapr aun as defe ndants. I n its decla

ratory judgme nt complaint, Byer soug ht a decla ration “conc erning the rig hts and obligations unde r the commerc ial g ener al liability policies issued by State Fa rm to E niva.” ¶ 6 State Fa

rm filed a section 2-619 motion to dismiss the complaint on Marc h 29, 2011. In its motion State Fa

rm alleg ed that Byer soug ht a decla ration of rig hts reg arding State Fa rm’s duty to de fend Eniva, a party State Fa rm’s policies do not insure. State F arm stated tha t its policies insure Kapr aun, not Eniva. Byer filed a response in support of its co m p l ai nt, and State Fa rm filed a reply in which it alleg ed for the first time that no justiciable controve rsy exis ted as to Kapr aun since State Fa rm was prese ntly defe nding him subject to a rese rvation of rig hts. ¶ 7 On J une 14, 2011, the trial court held a hear ing on the motion to dismiss

. At the hea ring
, State Fa rm argued that the trial court should g rant its motion beca use the complaint alleg ed

a duty to defe nd Eniva, a pa rty its poli cies do not insure. Counsel for Byer replied that “all of the Eniva corpor ate entities have been dismiss ed from the underly ing action at this point. So at this point, we’ re dealing with a cover ag e action only involving Michae l K apra un and Kapr aun, P .C.” Coun s el s t ated that the Eni va defenda nts wer e dis missed on J une 9, 2011. He offe red to reple ad the complaint “to make it more clea r” but believed “that the
appropr iate parties are here ” and a jus ticiable controve rsy exis ted because St ate Far m was defe nding Kapr aun subject to a re servation of rig hts. Counsel also argued that State Fa rm filed a decla

ratory judgme nt action ag ainst Kapr aun in Michig an, Ka p ra un’s place of business, which shows a controve rsy exis ts as t o Kapr aun’s insurance cover ag e. The trial
court responde d that it had “no idea what y ou’re talking about. There ’s nothin g i n t h e pleading s about that.” ¶ 8 State Fa

rm argued that no justiciable c ontroversy exis ts beca

use Kapr aun is “rec eiving the full policy benef

its, subject t o a reservation, admittedly .” It further argued that it could have filed a declaratory

judgme nt action, but instead chose to defe nd Kapr aun subj ect to a

re s er v at i o n of rig hts. State Fa rm argued that no justiciable controve rsy exis ts “unless and until State Fa

rm withdraws that rese rvation.” I t also contende d that Byer could not cure this defe ct throug h an amendment so long as State Fa rm ag ree d to defe nd Kapr aun, and it soug ht dismiss al of Byer’ s complaint with prejudi ce. The trial court clar ified that even if it dismiss ed Byer’ s complaint with prejudice
, Byer would be fre e to pursue an indemnity claim if Kapr aun is found li ab l e i n t h e underly ing class action suit. The trial court g rante d State Fa rm’s motion to dismiss Byer’ s decla ratory judgme nt complaint with prejudice
, finding no justiciable controve rsy as to K apra un “at this ti me.” The court denied State Fa rm’s reque st for sa nctions. ¶ 9 Byer filed a motion to rec onsider on J uly 14, 2011. In its motion, Byer reque sted that the trial court vacate the J une 14, 2011, order dismiss ing its decla ratory judgme nt complaint and
g rant Byer leave to amend the compl ai n t an d add Kapr aun as plaintiff. In support, Byer argued that the trial court should not hav e co n s i d ere d State Fa rm’s argument that no justiciable controve rsy exis ts when the insurer defe nds subject to a rese rvation of rig hts beca use State Fa

rm raised the issue not in its motion to dism i s s , b ut in its reply to Byer’ s

answe r to the motion. Byer also argued that State Fa rm is judicia lly estopped from arguing that no controve rsy exis ts beca use it filed a decla

ratory judgme nt action ag ainst Kapr aun in

-3-Michig an alleg ing it has no duty to defe nd Kapr aun. Finally
, Byer arg ued that it has standing
to bring the action. T h e t ri al court denied the motion without a hearing on September 12, 2011. Byer f

iled this ti mely

appea l.

¶ 10 ANALYSI S ¶ 11 As an initial matter, we addre ss State Fa rm’s contention that this court lacks jurisdiction to consider this appe al. B y er’ s complaint for de clar atory judgme nt lists State Fa

rm, Eniva, and Kapr aun as defe ndants. State Fa rm was the only defe ndant that filed a motion to dismiss the complaint. At the hear ing on the motion, Byer ag ree d to dismiss Eniva as a party

. After the hear ing, the trial court g rante d the motion to dismiss with prejudice
, but the order did not contain an express finding pu rs u ant to I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010) that “ther e is no just rea son for delay ing either enfor ceme nt or appea l or both.” Wit hout this finding
, any judgme nt that deter mines the rig hts and liabiliti es of few er than all parties to an a ction is not appeala ble. Zak v. Allson , 252 I ll. App. 3d 963, 965 (1993). ¶ 12 State Fa

rm contends that since Kapr aun did not appea r at the hear ing or file a motion to dismiss
, Kapr aun is still a defe ndant in the matter and the trial court’s order must contain the require d finding under Rule 304( a) f or this c ourt to he ar the appea l. I n support, State Fa

rm ci t es Z a k

. I n Zak
, the complaint named two defe ndants but only one filed a motion t o dismiss

. The rec ord contained no evidenc e that the other defe ndant was ever serve d, and the motion and heari n g made no mention of t he other defe ndant. Id. at 964-65. The trial court g rante d the motion to dismiss without an express Rule 304(a) finding

. Id. at 965. The court in Zak deter

mined that it had no jurisd i cti on to consider the appea l beca use the other defe ndant was still a party in the action and the trial court’s order did not contain the require d Rule 304(a) finding

. Id

. ¶ 13 Howeve r, this court in Merritt v. Randall Painting Co.
, 314 I ll. App. 3d 556, 559 (2000), deter mined that the hol ding in Zak should be confined t o the f ac t s o f that case

. In Merritt
, the under ly ing c omplaint named s even de fenda nts of which only

three wer e ser

ved. Those three defe ndants eventua lly joined in a motion to dism iss which the trial court g rante d. Id

. at 558. The order dismiss ing the motion did not contain a Rule 304(a) finding

. Id. at 559. The Merritt court addre ssed the jurisdiction issue, stating that it “must deter mine whether the trial
court intended its dismiss al to be only with reg ard to the serve d defe ndants who pursued the

m o t i o n to dismiss or whether it intended to dismiss the complaint in its entirety .” Id

. The
court found that since the liability of one of the serve d defe ndants was based, in part, on the al l ege d acts of its ag ents (the four unserve d defe ndants), toge ther they “constitute[d] a unified tortfea sor.” Id

. There fore
, it held that the trial court intended to dismiss the complaint in its entirety and the appellate court had jurisdiction over the appea l under Rule 301. Id

. See also Cange mi v. Advoc ate South Suburban Hospital
, 364 I ll. App. 3d 446, 454-55 (2006) (citing to Merritt

with approva l). ¶ 14 I n the case befor e us, State Fa rm filed the motion to dismiss and Kapr aun was serve d but did not appea

r at t h e h ea ri n g o r file a motion. The underly ing complaint is a decla

ratory judgmen t action seeking the rig hts and obligations of the parties under the commerc ial
g ener al l iability policies issued by State Fa rm to Eniva. The complaint identified Kapraun

-4-as an ag ent of Eniva. At the hearing, Byer acknow ledg ed that State Fa rm’s policies did not insure Eniva but rathe r insured Kapr aun. Byer voluntarily dismiss ed Eniva as a party and the hear ing continued as to defe ndant Kapr aun. Kapr aun was ref ere nced throu gh o u t t h e proce eding . After

argument by

the par ties, the trial cour

t stated: “The [section] 2-619 motion is gra nted with prejudice . The case is dismiss ed. It’s pled
ag ainst the wrong defe ndants as to E niva. And as to Kapr aun, there ’s no justiciable
controve rsy

at this tim e.” The trial co u rt ’s decisive word choice
, “this case is dismiss ed,” along with the expressed finding that the other de fenda nts are not properly

party defe ndants, is an all-e ncompassing dismiss al order confirming the court’s intention to dismiss the complaint in its entirety as to all named de fenda

nts, including Ka

praun. The ref

ore, we have jur isdiction over this appea l under Rule 301. Merritt , 314 I ll. App. 3d at 559. ¶ 15 On appea l, Byer contends the trial court err ed in denying Byer’ s motion to rec onsider the dismiss al of its decla

ratory judgme nt complaint. In its motion, Byer argued that the trial court

err ed in dismiss ing the complaint beca use a justiciable controve rsy exis ted betwee n Byer and Sta t e Fa rm. Byer also argued that State Fa rm is judicially estopped from arguing that no controve rsy exis ts wher e it acknow ledg ed a controve rsy betwee n the parties in another case

. Although Byer raised the judicial estoppel issue in the proce eding s below, the trial court did
not co n s i d er t h e arg

ument beca

use i t had “no idea what [By er was] talking about. There ’s

n o t h i n g in the pleading s about that.” When a denial of a motion to rec onsider is b as ed o n new matter

not presente d during the proc eeding s leading to the challeng ed orde r, an a buse of discretion standard of revie w applies. Muhammad v. Muhammad- Rahmah
, 363 I ll. App. 3d 407, 415 (2006). Howeve r, we revie w the trial court’s application of exis ting law to the fac ts prese nted de novo

. Duresa v. Commonwealth Edison Co.
, 348 I l l

. App. 3d 90, 97 (2004). ¶ 16 Byer first contends that the trial court should not have dismiss ed its complaint based on the finding that no justiciable controve rsy exis ts as to Kapr aun, wher e State Fa rm first raised the arg ument in re p l y t o Byer’ s answe r t o the m otion to dismiss

. As support, Byer cites to Burlington Northern & Santa F e Ry. Co. v

. ABC-NACO
, 389 I ll. App. 3d 691, 717 (2009). I n Burlington
, this court ref ere nces I llinois Supreme Court Rule 341(h)( 7) (ef f. J uly 1, 2008), which provides that “[p] oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehe aring .” This rule, howeve r, applies to appellate briefs and not to the pleading s befor e the trial court. State Fa rm first raised the issue in its response to B y er’ s answe r to the motion to dismiss

. Fur thermore
, State Fa

rm raised the issue during the hear ing on the motion to dismiss
, and the parties argued the merits of the issue befor e the trial court. The trial court dismi s s ed Byer’ s decla ratory judgme nt complaint based on its finding that no justiciable controve rsy exis ts “at this time” as to Kapr aun. Only issues not raised befor e the trial court are waived on appea l. IPF Rec overy Co. v. Illinois Insurance Guaranty Fund , 356 I ll. App. 3d 658, 666 (2005). ¶ 17 We now determine whether the t rial court err ed in applying the l aw wh en it dismiss ed Byer’ s decla

ratory judgme n t complaint afte r finding that no justiciable controve rsy as to Kapr aun exis ts “at this time.” “A decla ratory judgme nt action is not intended to permit moot

-5-or hy pothetical cases, or to enable pa rties to secur e advisory

opinions or leg al advice from the court with respe ct to anticipated future difficulties ***.” W eber v. St. Paul Fire & Marine Insurance Co.
, 251 I ll. App. 3d 371, 373 (1993). T h e claim must contain an actua l
controve rsy

capa ble of judicial de termination. Id . at 372. ¶ 18 Byer’ s complaint soug ht a decla ration that State Fa

rm had a duty to defe nd and indemnify Ka p ra u n in the underlying class action suit. At the hear ing on State Fa rm’s motion t o dismiss
, the t rial court deter mined that the coverage issue raised by the complaint was not ripe for adjudication. The court ag ree d with State Fa rm’s position that since it was prese ntly defe nding Kapr aun under a rese rvation of rig hts, and it has not filed a decla ratory judgme nt action contesting that defe nse, no controve rsy exis ts conce rning its duty to defe nd. Fur thermore
, the trial court has made no finding of Kapr aun’s liability in the underly ing class action suit. There fore
, a deter mination of State Fa

rm’s duty to indemnify also is not ripe for adjudication. See W

eber
, 251 I ll. App. 3d at 373-74 (a decla ratory judgme nt action broug ht
to deter mine an insurer’ s duty to indemnify is premature if broug ht prior to an adjudication of t he ins ured’ s liability in the underl y i n g action). The t rial court did not err in dismiss ing the decla ratory judgme nt complaint beca use no justiciable controve rsy exis ts “at this time.” ¶ 19 Byer disag ree s, arguing that “[i] t is common prac tice to litigate the duty to defe nd when

an insurer rese rves rig hts to contest cover ag e.” As support, Byer lists seven case s including National Union Fire Insurance Co. of Pittsburgh, Pennsylv ania v. Glenvie w Park District
, 158 I ll. 2d 116, 128 (1994), and Pek in Insurance Co. v. Rec urrent Traini ng Center, Inc.
, 409 I ll. App. 3d 114 (2011). Howeve r, these case s are inapposite beca use all involve insurers that initially acc epted a tender of defe nse subject to a rese rvation of rig hts but subsequently filed

a decla ratory judgme nt action. State Fa rm has not filed a decla

ratory judgme nt action ag ainst Kapr aun contesting its defe nse in the case at bar. We have found no case supporting Byer’ s position that an injured plaintiff may file a claim seeking a decla ration of cover ag e when the insurer is def

endingthe tortfea sor subject to a r eser vation of rig hts. 1 ¶ 20 By er n ext contends that State Fa rm is judicially estopped from arguing that no case o r controve rsy exis ts wher e it acknow ledg ed the exis tence of a controve rsy betwee n the parties in another c ase in Michig an. B y er r aised this argument in its pleading s for the first time in its motion to rec onsider. I n any event, we find that Byer has waived consideration of this issue on appea l. The doctrine of judicial estoppel prohibits a party from assuming a position in a leg al proce eding that is contra ry to a position it held in a prior leg al proce eding

. Bidani

v. Lewis
, 285 I ll. App. 3d 545, 550 (1996). In order to impose judicial estoppel upon a party , the court must fi n d the following elements: (1) the two positions wer e taken by the same party ; (2) the positions wer e taken in judicial proce eding s; (3) the positions wer e taken under oath; (4) the party succe ssfully maintained the first position and rec eived some benef it; and (5) the positions taken wer e totally inconsistent. Id

. Byer in its appellate brief does not argue

Byer al so a rgues tha t St at e Fa rm is providi ng K apr aun wit h a “co nfl ic te d de fe nse and , as 1

a re sul t, Sta te Far m ’s re ser vatio n of ri ghts was ine ff ect ive.” Byer the n al le ges tha t, “t her ef ore , *** Sta te Far m has wai ved it s pol ic y def ens e and is est oppe d fr om ra is ing it s pol ic y def ens es. ” However, Byer has not pro vided any ci ta ti on to aut hor it y in sup por t of the se bar e ar gum ent s in vi o la ti on of Rule 341 (h) (7) . W e do notcon si derth ese ar gum ent s on app eal

.
-6-whether State Fa rm’s i nconsistent positions satisfy these elements, nor does it argue thos e elements in its motion to rec onsider. There fore
, it has waived consideration of this issue on appea l pursuant to Rule 341(h)(7)

. 2 ¶ 21 Byer also argues that it has standing to bring its decla ratory judgme nt action, appa rently in response to State Fa

rm’s argument that Byer has no standing beca use “State Fa

rm is
prese ntly funding Kapr aun’s defe nse subject to a rese rvation of rig hts.” Byer arg ues that tort claimants, like Byer, have the same rig ht to bring insurance cover ag e actions as insureds and
t h ei r i n s u re rs, including the rig ht to forc e the insurer to defe nd. In support, Byer cites the holdings in Rec ord-A-Hit, Inc. v. National Fire Insurance Co. ofHartford
, 377 I ll. App. 3d 642 (2007), P r a t t v. Protective Insurance Co.
, 250 I ll. App. 3d 612 (1993), and Reagor v. Travelers Insurance Co.
, 92 I ll. App. 3 d 9 9 (1981). We find these case s inapposite to the instant case

. I n Reagor
, Reag or was injured while diving in a lake wher e Dy er had excavated sand. R eag or named Dy er as one of the defen d an t s i n his complaint. Dyer and his insurer, Trave lers, ag ree d that Dy er was not cover ed by Trave lers’ policy

. Consequently
, Trave lers withdrew from defe nding Dy er. This court held that “[a]lt houg h Trave lers and Dyer ag ree d that there was no cover ag e, that ag ree ment is obviously not dispositi ve of the issue as it may aff ect plaintiffs. Neither the insured nor the insurer, acting separ ately or toge ther, may act to defe at the rig hts of the injured person. (See France v. Citi zens Casualty Co. (1948), 400 I ll. 55, 59, 79 N.E.2d 28, 30 ***.)” Reagor
, 92 I ll. App. 3d at 102. In the instant case , State Fa rm and its insured do not have an ag ree ment that the insured is not cover ed by S t at e Farm’s policy . Rather, State F arm is def endingits insured, albeit under a rese rvation of r ights. ¶ 22 I n Rec ord-A-Hit
, the tort claimant filed a class action complaint ag ainst Tri-State Hose & Fitting, I nc., premised upon the sending of “junk faxes.” Tri-State’s insurers filed a hy brid motion to dismiss broug ht pursuant to both s ec t i ons 2-615 and 2-619 of the C ode of Civil P ro cedur e (735 I L CS 5/2-615, 619 (West 2006)). For their section 2-615 g roun d s , t h e insurers argued that the plaintiff’s complaint consti t u t ed an impermissible direc t action
ag ainst the liability insurance car riers. The circ uit court dismiss ed the action “ ‘pursua nt to 735 I L CS 5/2-615.’ ” Rec ord-A-Hit
, 377 I ll. App. 3d a t 644. The insurer s had reje cted TriState’s tender of its defe nse in the underly ing action. The appellate court reve rsed the circ uit
court: “In Pratt v. Protective Insurance Co.
, 250 I ll. App. 3d 612, 621 N.E.2d 187 (1993), the court relied upon the rea soning in Reagor when it co n cl uded that claimants in tort actions ‘may alway s bring a decla ratory judgme nt action to deter mine a tortfea sor’s

cover ag e under a

n insurance policy .’ Pratt , 250 I ll. App. 3d at 618. We be lieve that, in

case s wher e an actua l controve rsy exis ts between a tort claimant and the tortfea sor’s insurance car

rier, the holding in Pratt repr esents an acc urate statement of the law without the limit ation imposed by the Dial court.” Rec ord-A-Hit
, 377 I ll. App. 3d at 648 (citing Dial Corp. v. Marine Office of Am erica , 318 I ll. App. 3d 1056, 1062-63 (2001))

.

I nte re st ingly, thi s is sue was ra is ed by K apr aun ’s cou nse l in the Mi chi gan pro cee din gs and 2 the tr ia l cou rt the re had doub ts tha t Sta te Far m ’s pos it ion s in Mi chi gan and I ll ino is wer e “mutual ly

exc lus ive.” It hel d t hat th e do ct ri ne o f j udi ci al es top pel di d no t a ppl y.

-7-¶ 23 We note that in Pratt
, as in Reagor and Rec ord-A-Hit
, the insurer had ref used to defe nd its insured in the underly

ing tort action. Pratt filed his own decla ratory judgme nt action only afte r Protective I nsuranc e had voluntarily dismiss ed its decla ratory judgme nt action and afte r

a $425,000 defa

ult judgme nt was enter ed ag ainst its insured, the underly ing tortfea sor. Since we f ind it persua sive, it bear s repe ating that in the i nstant case , State Fa rm has not re fused
to defe nd its insured, nor has it dismiss ed the d ec l ar at o ry judgme nt action involving its insured. We have found no case supporting Byer’ s position that an injured plaintiff may file

a claim seeking a decla

ration of cover ag e when the insurer is defe nding the tortfea sor subject
to a re servation of rig hts. ¶ 24 The court below never addre ssed the issue of standing during the hear ing on State Fa rm’s motion to dismiss

. At the hear ing, the issue was whether a justiciable controve rsy exis ted–or in other words, whether the decla ratory judgme nt action was ripe f o r adjudication. Confusion sometime s o ccur s over the distinction betwee n whether a party has a sufficie nt stake in a justiciable controve rsy (standing ) and whether a complaint is ripe for adjudication. See Dial Corp. v. Marine Office of America
, 318 I ll. App. 3d 1056, 1061 (2001). “The doctrine of standing is desig ned to prec lude persons who have no interest in a controve rsy from bring ing suit.” Gli s s o n v. C ity of Marion
, 188 I ll. 2d 211, 221 (1999). I t follows that a controve rsy must exis t befor e the issue of standing become s rele vant. As d i s cu s s ed above, no actua l
controve rsy prese ntly exis ts reg arding State Fa rm’s duty to defe nd Kapr aun. There fore
, the trial court did not abuse its discretion when it de nied Byer’ s motion to rec onsider based on the standing issue. ¶ 25 Finally
, we consider State Fa rm’s contention that Byer waived revie w of the trial court’ s denial of its motion for leave to file an amende d complaint. In its motion to rec onsider, Byer reque sts an order

vacating the J une 14, 2011, dismiss al of its cause of ac tion, and an orde r g ranting Byer leave to file an amende d complaint which li sts Kapr au n as a plaintiff rather than a defe ndant. The trial court d en i ed Byer’ s motion without explanation. State Fa rm

ar gu es that Byer did not raise the issue of the amende d complaint in its appellate b ri ef ; there fore
, the issue is waived. See I ll. S. Ct. R. 341(h)( 7) (points not argued in the appellate brief a re w aived)

. ¶ 26 I n any event, one of the fac tors this court considers in deter mining whether the trial court proper ly denied a motion to amend is whether the proposed amendment would cure the defe ct in the pleading s. Sheffler v. Commonwealth Edison Co.
, 2011 I L 110166, ¶ 69. Adding Kapr aun as a plaintiff ra t h er than a defe ndant would not cure the defe ct here

. We have deter mined that no justiciable controve rsy exis ts at this time beca use State Fa

rm is providing Kapr aun with a defe nse subject to a rese rvatio n o f ri ghts. Since State Fa rm is prese ntly providing a defe nse to Kapr aun, a controve rsy over State Fa rm’s duty to defe nd in the class action suit will not arise until State Fa rm withdraws that defe nse. This deter mination will not chang e simply beca

use Kapr aun is now a plaintiff ag ainst State Fa rm. The trial court did not

err in denying B y er’ s motion for leave to amend its complaint. ¶ 27 For

the fore g oing r easons, the judg ment of the c ircuit court is af firmed.

¶ 28 Affir

med.

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