ILLINOIS OFFICIAL REPORTS

Appellate Court

Illinois State Bar Ass’n Mutual Insurance Co. v. Cavenagh, 2012 IL App (1st) 111810

Appellate Court

Caption

ILLINOIS STATE BAR ASSOCIATION MUTUAL INSURANCE

COMPANY, Plaintiff-Appellee, v. TIMOTHY J. CAVENAGH,

Defendant-Appellant.

 District & No. First District, Fourth Division

Docket No. 1-11-1810

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

November 1, 2012

December 13, 2012

December 20, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Summary judgment was properly entered for plaintiff legal malpractice

insurer in an action seeking a declaration that plaintiff did not have to

provide a defense for a third-party complaint against plaintiff’s insured

arising from an underlying personal injury action brought by the insured,

since the allegations in the third-party complaint were not within or

potentially within the coverage of the malpractice policy, the insured’s

counterclaim under section 155 of the Insurance Code was properly

denied, and an order barring the insured from further discovery was

upheld.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CH-44982; the

Hon. William O. Maki and the Hon. Sebastian T. Patti, Judges, presiding.

Judgment Affirmed.
Counsel on

Appeal

Peter V. Bustamante, of Chicago, for appellant. 

Robert Marc Chemers and Adrian T. Rohrer, both of Pretzel & Stouffer

Chtrd., of Chicago, for appellee.

Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.

Justices Quinn and McBride concurred in the judgment and opinion.

OPINION

¶ 1 Illinois State Bar Association Mutual Insurance Company brought an action for

declaratory judgment against its insured, Timothy J. Cavenagh, seeking a declaration that

Cavenagh’s professional liability insurance policy did not require ISBA Mutual to defend

Cavenagh against a claim brought by a fellow attorney, Richard Bogusz. In response,

Cavenagh claimed that ISBA Mutual was required to defend Cavenagh against Bogusz’s

complaint, and in a four-count counterclaim, he alleged breach of contract and tort claims

based on ISBA Mutual’s refusal to defend. The circuit court dismissed the counterclaim and

granted summary judgment in favor of ISBA Mutual, and Cavenagh now appeals. For the

reasons that follow, we affirm.

¶ 2 This insurance coverage dispute began with a personal injurysuit filed bySteven Spilotro

against Ken Joniak and another defendant. Spilotro was represented by Timothy Cavenagh,

and both defendants were represented by Richard Bogusz. That suit ended in a default

judgment award of $900,000 against Joniak. The default judgment gave rise to a second suit:

Joniak filed a malpractice claim against Bogusz, claiming that Bogusz failed to appear or

adequately represent him. Bogusz asked his professional liability insurance carrier, ISBA

Mutual, to defend against Joniak’s claims. ISBA Mutual assigned the law firm of Konicek

and Dillon to defend Bogusz.

¶ 3 Bogusz later filed a third-party complaint against Cavenagh and Spilotro for fraud and

conspiracy to commit fraud, alleging that Cavenagh had advanced Spilotro’s personal injury

claim while misrepresenting the status of the suit to Bogusz to mislead him from taking

further action to defend the case. Bogusz specifically alleged that Cavenagh, without

revealing that a trial date had been set, told Bogusz that he did not plan to proceed with the

case and that the case would settle for a small amount. Bogusz also alleged that Cavenagh

and Spilotro misled the court to procure an inflated default judgment award. Bogusz further

claimed that Cavenagh and Joniak agreed to file a malpractice suit so that Joniak could

recover money to satisfy the judgment against him.

¶ 4 Cavenagh presented Bogusz’s third-party complaint to his malpractice insurer, ISBA

Mutual, and requested representation.Cavenagh’s professional liability policyrequired ISBA

Mutual to defend Cavenagh for any claim “aris[ing] out of a wrongful act.” The policy

defined the term “wrongful act”:

-2-
“1. Any actual or alleged negligent act, error or omission in the rendering of or failure

to render PROFESSIONALSERVICES, including PERSONALINJURY committed by

the INSURED in the course of rendering PROFESSIONAL SERVICES; or

2. Any actual or alleged negligent act, error or omission in an INSURED’S capacity

as a director or officer of any bar related professional legal association or the governing

board thereof.”

The policy also excluded from coverage any claim “arising out of any criminal, dishonest,

fraudulent, or intentional act or omission committed by any of the INSURED.” After

Cavenagh tendered his defense, ISBA Mutual refused to defend Cavenagh because, in ISBA

Mutual’s view, the complaint did not allege a “wrongful act” as defined by the policy, and

claims based on the insured’s fraudulent or intentional acts were specifically excluded from

coverage.

¶ 5 ISBA then sought a declaratory judgment that it did not owe any duty to defend

Cavenagh against the third-party complaint. Cavenagh filed an answer, counterclaim, and

affirmative defense. Cavenagh alleged that the lawyer ISBA assigned to defend Bogusz

against Joniak’s malpractice suit was “the agent of Bogusz and ISBA Mutual.” Cavenagh

further alleged that the third-party complaint against him was obviously frivolous, crafted

by ISBA Mutual and Bogusz’s lawyer, Konicek, so that it could justifiably deny coverage

for Bogusz’s suit. The counterclaim alleged that the purpose of the third-party complaint was

to wrongfully exert pressure on Cavenagh and Spilotro to settle their claim against Joniak

for less than the full value, which would limit ISBA Mutual’s financial exposure in the

malpractice case against Bogusz. Cavenagh raised four counts against ISBA Mutual in his

counterclaim: breach of contract, breach of fiduciary duty, civil conspiracy, and vexatious

and unreasonable conduct in violation of section 155 of the Illinois Insurance Code

(Insurance Code) (215 ILCS 5/155 (West 2008)). As to the affirmative defense, Cavenagh

alleged that ISBA Mutual should be “estopped” from raising any policy defenses against

Cavenagh because ISBA had “agreed, consented to, and, ordered” the frivolous third-party

complaint against Cavenagh.

¶ 6 The circuit court granted ISBA Mutual’s motion to dismiss the counterclaim and strike

the affirmative defense. The court dismissed the breach of fiduciary duty and conspiracy

counts with prejudice, but dismissed the breach of contract and section 155 counts with leave

to amend. Cavenagh filed an amended counterclaim, which the circuit court dismissed with

prejudice.

¶ 7 Cavenagh then filed a motion for leave to file a second amended counterclaim, restating

his breach of contract claim based on “new facts,” specifically, that the circuit court hearing

the malpractice case against Bogusz dismissed Bogusz’s third-party complaint against

Cavenagh. The court denied Cavenagh’s motion for leave to file a second amended

counterclaim. Cavenagh also served ISBA Mutual with a request to produce over 60

categories of documents and records, along with 23 interrogatories. ISBA Mutual moved for

a protective order, arguing that the requested discovery was irrelevant to whether ISBA

Mutual had a duty to defend Cavenagh. The circuit court granted the motion for protective

order.

-3-
¶ 8 ISBA Mutual moved for summaryjudgment. Cavenagh then issued additional discovery,

but the court again granted ISBA Mutual’s motion for a protective order. Cavenagh then

moved to reset the briefing schedule for the summary judgment motion; he attached an

Illinois Supreme Court Rule 191(b) (eff. July 1, 2002) affidavit in support of his motion,

averring that he could not respond until he was allowed to obtain additional discovery. The

court denied Cavenagh’s motion for discovery supported by the Rule 191(b) affidavit.

Cavenagh then responded to ISBA Mutual’s motion for summary judgment, attaching a

Supreme Court Rule 191(a) affidavit in support. The circuit court struck Cavenagh’s Rule

191(a) affidavit for failure to allege specific facts within Cavenagh’s personal knowledge.

The court granted ISBA Mutual’s motion for summary judgment, finding that ISBA Mutual

had no duty to defend Cavenagh. This appeal followed.

¶ 9 ANALYSIS

¶ 10 Cavenagh raises several issues on appeal, which can be grouped into three general

categories: (1) the parties’ claims as to ISBA Mutual’s obligations under the policy; (2)

Cavenagh’s tort counterclaims; and (3) limitations on discovery prior to the summary

judgment ruling in favor of ISBA Mutual.

¶ 11 Claims Based on the Policy

¶ 12 The construction of an insurance policy raises a question of law, which we review de

novo. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).

Because an insurance policy is a contract, the rules applicable to contract interpretation

govern the interpretation of an insurance policy. Founders Insurance Co. v. Munoz, 237 Ill.

2d 424, 433 (2010). The primary function of the court is to ascertain and enforce the

intentions of the parties as expressed in the agreement. Id.

¶ 13 The court confronted the question of coverage under the policyin dismissing Cavenagh’s

breach of contract counterclaim under section 2-615 of the Code of Civil Procedure (735

ILCS 5/2-615 (West 2008)) and in granting summary judgment to ISBA Mutual on its

declaratory judgment action. In reviewing a section 2-615 dismissal, we consider whether

the allegations, construed in the light most favorable to the plaintiff, are sufficient to

establish a cause of action upon which relief may be granted. Chandler v. Illinois Central

R.R. Co., 207 Ill. 2d 331, 348 (2003). However, a plaintiff cannot rely simply on mere

conclusions of law or fact unsupported by specific factual allegations. Jackson v. South

Holland Dodge, Inc., 197 Ill. 2d 39, 52 (2001). We review a section 2-615 dismissal de novo.

Id. A motion for summary judgment is properly granted only when the pleadings,

depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS

5/2-1005(c) (West 2008). We review the court’s summary judgment ruling de novo.

Travelers, 197 Ill. 2d at 292.

¶ 14 To determine whether an insurer has a duty to defend the insured, the court must compare

the allegations in the underlying complaint to the relevant provisions of the insurance policy.

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 125 (1992). “The

-4-
allegations in the underlying complaint must be liberally construed in favor of the insured.”

Id. “The insurer justifiably refuses to defend the insured if it is clear from the face of the

underlying complaint that the allegations fail to state facts which bring the cause within or

potentially within coverage.” Certain Underwriters at Lloyd’s, London v. Boeing Co., 385

Ill. App. 3d 23, 39 (2008) (citing Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill.

2d 433, 439 (1994)). “[L]ittle weight is given to the legal label that characterizes the

allegations of the underlying complaint; rather, the determination focuses on whether the

alleged conduct arguably falls within at least one of the categories of wrongdoing listed in

the policy.” Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032,

1037 (2009); see also International InsuranceCo. v. Rollprint Packaging Products,Inc., 312

Ill. App. 3d 998, 1007 (2000) (“[T]he duty to defend does not require that the complaint

allege or use language affirmatively bringing the claims within the scope of the policy.”).

¶ 15 We begin with the policy language. The policy required ISBA Mutual to defend any

claim that “arises out of a wrongful act.” The policy defines “wrongful act” as “any actual

or alleged negligent act, error or omission in the rendering of or failure to render

PROFESSIONAL SERVICES, including PERSONAL INJURY committed by the

INSURED in the course of rendering PROFESSIONAL SERVICES.” The policy also

excludes coverage for any claim “arising out of any criminal, dishonest, fraudulent, or

intentional act or omission committed by any of the INSURED.”

¶ 16 This court has addressed a nearly identical policy provision in Illinois State Bar Ass’n

Mutual Insurance Co. v. Mondo, 392 Ill. App. 3d 1032 (2009). In that case, the policy

covered claims arising out of a “ ‘wrongful act,’ ” which was defined to mean “ ‘any actual

or alleged negligent act, error, or omission in the rendering or failure to render

PROFESSIONAL SERVICES.’ ” Mondo, 392 Ill. App. 3d at 1038. The court determined

that the insurer had no duty to defend where “the factual allegations in the *** underlying

action [made] clear that [the insured’s] failure to disclose information was allegedly part of

his overall scheme to mislead and defraud the Insurance Trust and not based upon any

negligent or potentially negligent conduct.” Id. at 1039. The court also noted that even

assuming the complaint could somehow be construed to allege negligent acts, the fraud count

within the complaint would be excluded from coverage based on the policy’s exclusion for

any claims arising from “fraudulent” acts. Id. at 1039-40. Mondo is in line with a number of

other decisions in Illinois interpreting similar policy language. See, e.g., United Fire &

Casualty Co. v. Jim Maloof Realty, Inc., 105 Ill. App. 3d 1048, 1048-50 (1982) (denying

coverage for intentional misrepresentation where policy covered “negligent act or omission”

of the insured but did not apply to “dishonesty, intentional fraud, criminal or malicious act”);

International Insurance Co. v. Allied Van Lines, Inc., 293 Ill. App. 3d 513, 519 (1997)

(denying coverage for intentional termination of employee benefits).

¶ 17 Without addressing any of these cases, Cavenagh argues that we should look to the

dictionary definition of “wrongful act” to determine the meaning of the policy. He cites

definitions that do not specifically mention “negligence,” and then argues that “[i]f ISBA

Mutual intended to limit coverage under the policy to only negligence, it could have easily

done so.” The problem with this argument is that ISBA did limit the policy to negligent acts,

errors, and omissions by defining the term “wrongful act.” Where the policy specifically

-5-
defines “wrongful act,” we are not at liberty to search for other possible definitions in order

to “create an ambiguity where none exists.” Dixon Distributing Co. v. Hanover Insurance

Co., 161 Ill. 2d 433, 441 (1994). To do so would thwart the plain language of the policy and

the intent of the parties.

¶ 18 Cavenagh next claims that the phrase “negligent act, error or omission” should be read

so that the word “negligent” only modifies “act” and not “error” or “omission.” In other

words, Cavenagh argues that the policy covers negligent acts, intentional errors, and

intentional omissions. We have little to add to the rejection of this same argument in TIG

Insurance Co. v. Joe Rizza Lincoln-Mercury, Inc., No. 00 C 5182, 2002 WL 406982 (N.D.

Ill. Mar. 14, 2002). There, the court reasoned that “[i]t would be illogical for an endorsement

to limit coverage to negligent acts, but to provide coverage for intentional omissions or

errors.” Id. at *9. The court also cited Illinois appellate court cases interpreting the “very

common” phrase, noting that those courts “have assumed, without deciding, that ‘negligent’

modifies act, error, and omission and thus excluded coverage for intentional conduct.” Id.

(citing United Fire, 105 Ill. App. 3d at 1048, and International Insurance, 293 Ill. App. 3d

at 519); see also Mondo, 392 Ill. App. 3d at 1038-39. If there were any doubt, the policy here

specifically excludes coverage for “intentional acts.” Indeed, adopting Cavenagh’s

interpretation of the phrase “negligent act, error or omission” would set two provisions of

the policy in conflict. Reading the definition of “wrongful act” along with the exclusion for

fraudulent and intentional acts, we conclude that ISBA Mutual’s duty to defend is only

triggered by allegations that the insured has committed an act of negligence, not an act

classified as intentional.

¶ 19 We turn to the third-party complaint against Cavenagh and Spilotro. The complaint

contains two counts: one for “fraud” and one for “conspiracy.” In support of these claims,

the complaint first alleges a series of intentional misrepresentations in a scheme to defraud

Bogusz and the court in order to obtain a default judgment against Joniak: (1) Cavenagh

made “intentional misrepresentation[s] of the status of the underlying lawsuit” to Bogusz “to

mislead him from taking further action to defend the case”; (2) Cavenagh “knew that telling

Bogusz that he did not plan to proceed with case when a trial date had been obtained by him

when made and was made with the intent to mislead Bogusz”; and (3) Cavenagh

“intentionally misrepresented to the Court at the [default judgment] prove-up hearing that

Spilotro’s injuries *** were much worse than [Spilotro’s] medical records” demonstrated.

The complaint alleges a second, related scheme, in which Cavenagh “recruited the aid” of

Joniak and entered into an unwritten agreement with him (after the limitations period had run

for challenging the default judgment) “to avoid a meritorious challenge by Joniak to the

fraudulent *** underlying default judgment.” Then, the complaint alleges that Joniak, still

working in concert with Cavenagh, filed a malpractice suit so that Joniak could recover

money to satisfy the default judgment. As ISBA Mutual points out, Cavenagh’s actions are

described as “intentional” six times, and the word “fraud” is also used at least six times to

characterize Cavenagh’s supposedly deliberate efforts. These allegations, when construed

liberally in favor of Cavenagh, do not come close to alleging negligent acts. See, e.g.,

Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 761 (2005) (finding that

policyexcluded coverage for intentional conduct and complaint alleged a “scheme to mislead

-6-
and defraud”); Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic

Surgeons, 315 Ill. App. 3d 552, 563-64 (2000) (finding no coverage for complaint alleging

conspiracy to “conceal” and “fail[ ] to disclose” where policy excluded coverage for

intentional acts).

¶ 20 We note that the weakness of the coverage claim in this case stems from the theory that

Cavenagh advanced in his counterclaim. The crux of Cavenagh’s claim is not that ISBA was

wrong to deny coverage because the underlying complaint alleged negligent acts covered by

the policy. Instead, Cavenagh argues that the complaint against Cavenagh was “obviously

false and frivolous” and the allegations within it were “woefully deficient to support a claim

of fraud.” The problem is that the false or frivolous nature of the third-party complaint does

nothing to advance the duty-to-defend claim. As a general matter, when the underlying

complaint alleges facts within or potentially within the policy’s coverage, the insurer’s duty

to defend arises even if the allegations are groundless, false or fraudulent. General Agents

Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 155 (2005).

In this case, the policy imposes a duty to defend “even if any of the allegations of the suit ***

are groundless, false or fraudulent.” Cavenagh’s argument implies that an insurer must

defend a complaint’s false or frivolous allegations, regardless of whether the allegations

otherwise come with the policy’s coverage. But “[t]he duty to defend does not depend on the

probability of recovery.” Rollprint Packaging, 312 Ill. App. 3d at 1007. It is the nature of the

allegations in the underlying complaint that control, not their likelihood of success. Where

the facts alleged, even if false or groundless, are not within or potentially within the policy’s

language, the insurer has no duty to defend.

¶ 21 On appeal, Cavenagh raises two additional arguments relevant to the breach of contract

claim, both of which focus on the dismissal of Bogusz’s third-party complaint against

Cavenagh in the Joniak suit. The circuit court first dismissed Bogusz’s complaint without

prejudice under section 2-615 because the complaint “lack[ed] the requisite factual

specificity necessary to allege all of the elements of fraud and conspiracy.” The court then

dismissed Bogusz’s amended complaint against Cavenagh with prejudice under section 2-

619, ruling that the action against Cavenagh was untimely.

¶ 22 Cavenagh first claims that the court in the Joniak case found that the “third-party

complaint against Cavenagh did not allege fraud,” and as a result ISBA Mutual is “precluded

by res judicata from relying on the fraud exclusion in the policy.” We disagree. The doctrine

of res judicata will only bar a subsequent action between the same parties or their privies

where “an identity of cause of action” exists between the two actions. Hudson v. City of

Chicago, 228 Ill. 2d 462, 467 (2008). There is simply no “identity of cause of action”

between the Bogusz third-party complaint and this action. Cavenagh misstates the court’s

ruling in dismissing Bogusz’s complaint; the circuit court never concluded that the complaint

“did not allege fraud.” In fact, the court did not even rule on the sufficiency of the allegations

in Bogusz’s amended third-party complaint. Moreover, this argument confuses the

sufficiency of the allegations in Bogusz’s complaint with the nature of those allegations. The

court’s ruling as to the specificity of allegations in the Bogusz suit (much less a ruling as to

the timeliness of suit) says nothing about whether ISBA Mutual’s policy covers the

allegations in Bogusz’s complaint.

-7-
¶ 23 Cavenagh next argues that the circuit court wrongly denied his motion for leave to file

a second amended counterclaim, restating the count for breach of contract. The decision

whether to allow or deny an amendment is a matter within the circuit court’s discretion, and

we will reverse only if the circuit court abused its discretion. Seitz-Partridge v. Loyola

University of Chicago, 409 Ill. App. 3d 76, 86 (2011). In determining whether the court

abused its discretion, we weigh the following factors: (1) whether the proposed amended

complaint would cure defective pleadings; (2) whether the amendment would surprise or

prejudice the opposing party; (3) whether the amendment was timely filed; and (4) whether

the movant had previous opportunities to amend. Id. In this particular case, the first factor

is dispositive. The sole basis for Cavenagh’s second amendment to his counterclaim was the

circuit court order dismissing Bogusz’s third-party complaint, yet the amendment does

nothing to cure the defects in the breach of contract claim. On appeal, Cavenagh argues that

the dismissal of the third-party complaint “was the law of the case with respect to the thirdpartycomplaint.” This argument, like the res judicata argument, wronglyassumes that ISBA

Mutual’s duty to defend rises and falls with the sufficiency of the pleading of the Bogusz

complaint. As we have explained above, that is not the test for coverage. The court did not

abuse its discretion in denying Cavenagh’s motion for leave to file a second amended

counterclaim.

¶ 24 Having found that the policy did not impose a duty to defend against the Bogusz suit, we

conclude that the circuit court properly granted summary judgment to ISBA Mutual. We also

affirm the dismissal of Cavenagh’s breach of contract counterclaim. As with the duty to

defend claim, all of Cavenagh’s alleged breaches of the policy–failure to adequately

investigate the claims, failure to independently review the claims, failure to defend when it

knew or should have known that the allegations were false–presuppose coverage under the

policy. For example, the “failure to investigate” claim assumes that if ISBA Mutual had

investigated, it would have discovered that the complaint in fact alleged a “negligent act,

error or omission” covered by the policy. The circuit court properly dismissed the breach of

contract counterclaim.

¶ 25 Section 155 Claim and Estoppel Claim

¶ 26 Cavenagh’s counterclaim also alleged that ISBA Mutual violated section 155 of the

Insurance Code (215 ILCS 5/155 (West 2008)). Section 155 allows for “an extracontractual

remedy” of attorney fees and costs for an insurer’s “unreasonable and vexatious” refusal to

comply with its policy obligations. Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513,

523-24 (1996); 215 ILCS 5/155(1) (West 2008). But “[w]here the policy does not apply,

there can be no finding that the insurer acted vexatiously and unreasonably [in denying a

claim].” American Family Mutual Insurance Co. v. Fisher Development, Inc., 391 Ill. App.

3d 521, 533 (2009); see also State Farm Mutual Automobile Insurance Co. v. Smith, 197 Ill.

2d 369, 380 (2001) (“[W]here a bona fide dispute concerning coverage exists, costs and

sanctions [under section 155] are inappropriate.”); LibertyMutual InsuranceCo. v. American

Home Assurance Co., 368 Ill. App. 3d 948, 962 (2006) (finding that insurer’s conduct was

not vexatious or unreasonable where insurer denied coverage based on exclusion that court

later determined was applicable). The policy here did not cover Bogusz’s claim, and

-8-
Cavenagh’s section 155 claim therefore was properly dismissed.

¶ 27 Cavenagh next argues that the circuit court erred in striking his affirmative defense for

estoppel. A motion to strike an affirmative defense admits all well-pleaded facts constituting

the defense, together with all reasonable inferences that may be drawn therefrom, and raises

only a question of law as to the sufficiency of the pleading. Bank of America, N.A. v. 108 N.

State Retail LLC, 401 Ill. App. 3d 158, 170 (2010). A court must consider whether the

defendant has alleged facts sufficient to constitute a legally cognizable defense. Id.

¶ 28 “The general rule of estoppel provides that an insurer which takes the position that a

complaint potentially alleging coverage is not covered under a policy that includes a duty to

defend may not simply refuse to defend the insured.” Employers Insurance of Wausau v.

Ehlco Liquidating Trust, 186 Ill. 2d 127, 150 (1999). The insurer has two options: (1) defend

the suit under a reservation of rights, or (2) seek a declaratory judgment that there is no

coverage. Id. “If the insurer fails to take either of these steps and is later found to have

wrongfully denied coverage, the insurer is estopped from raising policy defenses to

coverage.” Id. at 150-51.

¶ 29 In this case, after ISBA Mutual refused to defend Cavenagh, it avoided any claim of

estoppel by seeking a declaration that there was no coverage for the Bogusz suit. In any

event, our supreme court has made clear that “[the] estoppel doctrine applies only where an

insurer has breached its duty to defend” and “[a]pplication of the estoppel doctrine is not

appropriate if the insurer had no duty to defend.” Id. at 151. Where we have affirmed the

circuit court’s determination that ISBA Mutual had no duty to defend under the policy, we

find no error in the circuit court’s decision to strike Cavenagh’s estoppel defense.

¶ 30 Cavenagh’s Tort Counterclaims

¶ 31 Breach of Fiduciary Duty

¶ 32 Cavenagh argues that it was error for the circuit court to dismiss his breach of fiduciary

duty claim. While it is settled law that “no fiduciary relationship exists between an insurer

and an insured as a matter of law” (Martin v. State Farm Mutual Automobile Insurance Co.,

348 Ill. App. 3d 846, 850-51 (2004)), Cavenagh argues that a fiduciary duty arose out of

special circumstances of his relationship with ISBA Mutual. A fiduciary duty by “special

relationship” may arise where “one party places trust and confidence in another, thereby

placing the latter party in a position of influence and superiority over the former.” Id. at 851;

Fichtel v. Board of Directors of the River Shore of Naperville Condominium Ass’n, 389 Ill.

App. 3d 951, 963 (2009). “ ‘This position of superiority may arise by reason of friendship,

agency, or experience.’ ” Fichtel, 389 Ill. App. 3d at 962 (quoting Connick v. Suzuki Motor

Co., 174 Ill. 2d 482, 500 (1996)).

¶ 33 The complaint does not allege, even in a conclusory fashion, that a special relationship

existed between Cavenagh and ISBA Mutual. There is a single allegation in support of the

existence of a fiduciary duty: “As a result of the relationship between ISBA Mutual and

Cavenagh, where Cavenagh was not only an insured but also a potential defendant, ISBA

Mutual owed a fiduciary duty to Cavenagh.” Asserting that there is an insurer-insured

relationship does not satisfy the standards for pleading a fiduciary duty by virtue of a special

-9-
relationship. “[T]he mere fact that a contract of insurance *** existed between the parties is

insufficient to support a finding of a fiduciary relationship.” Martin, 348 Ill. App. 3d at 851;

see also Ransom v. A.B. Dick Co., 289 Ill. App. 3d 663, 672 (1997) ( “[O]rdinarily in a

business transaction each party guards his own interests and no fiduciary duty exists.”).

¶ 34 The complaint is also devoid of any factual allegations that Cavenagh placed trust and

confidence in ISBA Mutual by reason of friendship, agency, or experience. On appeal,

Cavenagh claims that he “trusted that ISBA Mutual would never allow a frivolous third-party

complaint to be filed against him because they [sic] knew he was also insured by ISBA

Mutual,” but this is nothing more than saying that the insurer-insured relationship existed.

Cavenagh also argues that he trusted ISBA Mutual to “protect his financial well-being” and

otherwise perform its duties under the policy. There are no specific factual allegations,

however, giving rise to a relationship of trust or confidence. Nor would a bare allegation of

trust be sufficient to state a cause of action. In Martin, for example, the court considered the

insured’s allegation that “trust” was placed in the insurer because the insurer told the insured

that it would “take care of” the claim. Martin, 348 Ill. App. 3d at 850. The court noted that

“[t]here [were] no allegations of a history of dealings or long-standing relationship between

the parties, or that plaintiffs had entrusted the handling of their insurance affairs to [the

insurer] in the past, or that [the insurer] was in a position of such superiority and influence

by reason of friendship, agency, or experience.” Id. at 851-52; see also Magna Bank of

Madison County v. Jameson, 237 Ill. App. 3d 614, 619 (1992) (“The degree of trust and

confidence can be established by the following factors: degree of kinship, age disparity,

health, mental condition, education, business experience between the parties, and the extent

of the reliance.”).

¶ 35 Furthermore, even assuming that Cavenagh placed his trust in ISBA Mutual, there are

no allegations from which we could infer that Cavenagh’s “trust” put ISBA Mutual in a

position of superiority and influence over Cavenagh. See Miller v. William Chevrolet/GEO,

Inc., 326 Ill. App. 3d 642, 657 (2001) (holding that transaction between dealer and customer

“did not possess sufficient indicia of disparity in experience or knowledge such that the

dealer could be said to have gained influence and superiority over the purchaser”); Fichtel,

389 Ill. App. 3d at 963-64. To the extent that Cavenagh intended to claim a fiduciary duty

arose from particular circumstances, “it was incumbent upon [him] to identify those

circumstances and plead them with specificity.” Martin, 348 Ill. App. 3d at 852. In the

absence of any allegations establishing a fiduciary relationship, the circuit court did not err

in dismissing Cavenagh’s breach of fiduciary duty claim.

¶ 36 Civil Conspiracy (Fraud)

¶ 37 Cavenagh next challenges the dismissal of his “civil conspiracy” claim. “The elements

of a civil conspiracy are: (1) a combination of two or more persons, (2) for the purpose of

accomplishing by some concerted action either an unlawful purpose or a lawful purpose by

unlawful means, (3) in the furtherance of which one of the conspirators committed an overt

tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317 (2004). A conspiracy is not

an independent tort. Indeck North American Power Fund, L.P. v. Norweb PLC, 316 Ill. App.

-10-
3d 416, 432 (2000). “Where *** a plaintiff fails to state an independent cause of action

underlying [the] conspiracy allegations, the claim for a conspiracy also fails.” Id.

¶ 38 While Cavenagh’s complaint did not specify that his conspiracy claim was based on

allegations of fraud, he now relies on the tort of fraud as the basis for the conspiracy claim.

The elements of fraud are: “ ‘(1) a false statement of material fact; (2) the party making the

statement knew or believed it to be untrue; (3) the party to whom the statement was made

had a right to rely on the statement; (4) the party to whom the statement was made did rely

on the statement; (5) the statement was made for the purpose of inducing the other party to

act; and (6) the reliance by the person to whom the statement was made led to that person’s

injury.’ ” Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 529 (1996) (quoting Siegel

v. Levy Organization Development Co., 153 Ill. 2d 534, 542-43 (1992)). In order to state a

cause of action for common law fraud, the essential elements of fraud must be pleaded with

specificity. Id.

¶ 39 Cavenagh alleged that the Bogusz complaint was a false statement made byISBA Mutual

to induce Cavenagh (and his client, Spilotro) to settle Spilotro’s claim against Joniak for less

than the full value. Even if we assume that there are specific factual allegations showing that

the Bogusz complaint was a “false statement” attributable to ISBA Mutual, the complaint

fails to include any factual allegations that Cavenagh actuallyrelied on the Bogusz complaint

or that this reliance led to his injury. The complaint contains no allegations that Cavenagh

was induced to settle his claim or acted, to his detriment, based on Bogusz’s allegations. In

fact, Cavenagh repeatedly states that the Bogusz complaint was obviously frivolous and

“patently defective,” negating any claim that he relied on the complaint. Cavenagh also took

immediate steps to obtain coverage and, when coverage was denied, obtain dismissal of the

suit. These actions further establish that Cavenagh did not actually rely on the Bogusz suit

or that any reliance led to his injury. Cf. Trautman v. Knights of Columbus, 121 Ill. App. 3d

911, 914-15 (1984) (finding insured did not plead reliance based on insurer’s alleged forgery

of policy amendment, where “plaintiff’s accusations of forgery and her immediate steps to

protect her rights under the contract clearly belie reliance on the amendment”).

¶ 40 Cavenagh argues that reliance is established “by the fact that an insured relies upon an

insurer to provide coverage that comports with Illinoislaw and is free from fraud and deceit.”

But this says nothing about the alleged statement by ISBA Mutual at issue here–the Bogusz

complaint–or whether Cavenagh actually relied on it to his detriment. The allegations of

reliance are based on “mere conclusions of law or fact unsupported by specific factual

allegations.” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009).

Where Cavenagh failed to state an independent claim of fraud, the court did not err in

dismissing Cavenagh’s conspiracy claim.

¶ 41 Limitations on Discovery

¶ 42 Cavenagh next contends that after the dismissal of his counterclaim, the circuit court

improperly limited discovery, impeding his ability to defend against ISBA Mutual’s

summary judgment motion.

-11-
¶ 43 Motion for Protective Order

¶ 44 Cavenagh argues that the circuit court erred by granting ISBA Mutual’s motion for a

protective order barring Cavenagh from discovery. We review the circuit court’s ruling for

an abuse of discretion. Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002).

¶ 45 The only claim still at issue when Cavenagh issued his discovery requests was ISBA

Mutual’s breach of its duty to defend. “[W]here the issue is whether the insurer has a duty

to defend, a court ordinarily looks first to the allegations in the underlying complaint and

compares those allegations to the relevant provisions of the insurance policy.” Pekin

Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010). In the few cases where courts have

looked beyond the underlying complaint on a coverage question, the outside information

came from pleadings or filed documents that affected whether the complaint’s allegations

fell within the policy language. For example, in Pekin, where the complaint against the

insured alleged intentional acts, the court found that it was proper to examine the insured’s

counter-pleading, which suggested that the insured was acting in self-defense, because the

policy contained a self-defense exception. Id. at 450-51. Similarly, in Millers Mutual

Insurance Ass’n of Illinois v. Ainsworth Seed Co., 194 Ill. App. 3d 888 (1989), the court

examined the underlying complaint along with an affidavit from the insured’s employee in

order to resolve “confusion in the pleadings.” 194 Ill. App. 3d at 890-93.

¶ 46 By contrast, here the discovery sought by Cavenagh had no effect on whether the

allegations in the Bogusz complaint were covered by the policy. For example, Cavenagh

sought discovery regarding “the rule on which ISBA Mutual made [the decision not to

defend]” and “the extent of ISBA Mutual’s knowledge of Konicek’s acts in filing the thirdparty complaint.” In contrast to Pekin and Ainsworth, the requested information has no

bearing on whetherthe Bogusz complaint alleged a “negligent” act or whetherthe complaint

alleged intentional acts beyond the policy’s coverage. The court did not abuse its discretion

in granting ISBA Mutual’s motion for protective order.

¶ 47 Rule 201(k) Violation

¶ 48 Cavenagh next argues that the court abused its discretion when it granted ISBA Mutual’s

motion for a protective order because ISBA Mutual did not comply with Illinois Supreme

Court Rule 201(k). Ill. S. Ct. R. 201(k) (eff. July 1, 2002). Rule 201(k) requires that “[e]very

motion with respect to discoveryshall incorporate a statement that after personal consultation

and reasonable attempts to resolve differences the parties have been unable to reach an

accord.” Id. This court has previously recognized that “strict technical compliance with Rule

201(k) is not required,” however, “so long as the record reflects that the movant attempted

to resolve his difficulties with his opponent prior to seeking judicial intervention in discovery

matters.” Antkiewicz v. Pax/Indianapolis, Inc., 254 Ill. App. 3d 723, 729 (1993). Here, the

circuit court heard ISBA Mutual and Cavenagh argue at length as to whether there was

credible evidence that Bogusz’s third-party complaint was the product of a conspiracy.

Cavenagh’s discovery requests were largely an attempt to resurrect those claims dismissed

with prejudice, and the record suggests that any attempt to reach a compromise would have

been futile. Cf. Hartnett v. Stack, 241 Ill. App. 3d 157, 174 (1993) (concluding that failure

-12-
to comply with Rule 201(k) was not fatal where the record showed that the parties were, in

fact, “unable to reach an accord after reasonable attempts to resolve differences”). We

therefore conclude that the circuit court did not abuse its discretion in considering the motion

for protective order despite a technical violation of Rule 201(k).

¶ 49 Supreme Court Rule 191(b) Affidavit

¶ 50 Cavenagh next contends that the circuit court incorrectly struck the Illinois Supreme

Court Rule 191(b) affidavit he submitted in response to ISBA Mutual’s summary judgment

motion. Rule 191(b) provides, in relevant part:

“If the affidavit of either party contains a statement that any of the material facts which

ought to appear in the affidavit are known only to persons whose affidavits affiant is

unable to procure by reason of hostility or otherwise, naming the persons and showing

why their affidavits cannot be procured and what affiant believes they would testify to

if sworn, with his reasons for his belief, the court may make any order that may be just,

either granting or refusing the motion ***.” Ill. S. Ct. R. 191(b) (eff. July 1, 2002).

¶ 51 In his affidavit, Cavenagh first argued that he could not intelligently respond to the

motion for summary judgment without first obtaining documents and taking depositions

regarding who made the decision to deny coverage and why and how the decision was

reached. This is simply a restatement of Cavenagh’s failed discovery requests. We have

explained above that the discovery Cavenagh sought was not relevant to ISBA Mutual’s

obligation to defend under the policy.

¶ 52 Cavenagh also claimed that he needed additional discovery regarding a “discrepancy”

between the language quoted in the summary judgment motion and the language contained

in the policy first issued to Cavenagh. While it is true that the text of policy “IL 12/2007” did

not exactly match the text of policy “IL 12/2005,” there is no substantive difference in the

coverage provisions. The changes are in form, replacing the pronouns “we” and “you” with

the terms “the Company” and “the Insured.” We agree with the circuit court that additional

discovery would have served no constructive purpose.

¶ 53 Supreme Court Rule 191(a) Affidavit

¶ 54 Cavenagh also argues that the circuit court improperly struck his Supreme Court Rule

191(a) affidavit. Rule 191(a)requires that an affidavit in opposition to a motion for summary

judgment “shall be made on the personal knowledge of the affiants”; “shall set forth with

particularity the facts upon which the claim, counterclaim, or defense is based”; and “shall

not consist of conclusions but of facts admissible in evidence.” Ill. S. Ct. R. 191(a) (eff. July

1, 2002). “Rule 191(a) should be construed according to the plain and ordinary meaning of

its language. Its provisions should be adhered to as written.” Robidoux v. Oliphant, 201 Ill.

2d 324, 347 (2002). Cavenagh’s affidavit clearly did not comply with the requirements set

forth in Rule 191(a): the affidavit set forth unsupported assertions and conclusions, and the

affidavit set forth allegations clearly beyond Cavenagh’s personal knowledge. See Fabiano

v. City of Palos Hills, 336 Ill. App. 3d 635, 650-51 (2002) (“ ‘A court must disregard

conclusions in affidavits when adjudicating a summary judgment motion.’ [Citation.]”

-13-
(Emphasis in original.)); In re E.L., 152 Ill. App. 3d 25, 31 (1987) (noting the “well

established principle of law that *** documents [filed in support of] summaryjudgment must

recite facts and not mere conclusions or statements based on information and belief”). The

circuit court properly struck Cavenagh’s Rule 191(a) affidavit.

¶ 55 CONCLUSION

¶ 56 For the foregoing reasons, we affirm the circuit court’s order dismissing Cavenagh’s

counterclaim and striking his affirmative defense of estoppel. We find no error in the court’s

discovery rulings. We also affirm the order granting summary judgment in favor of ISBA

Mutual.

¶ 57 Affirmed.

-14-