## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Illin ois St

ate Bar Ass’n M

utu al Insu rance Co. v. Cave nagh , 2012 IL App (1st) 111810

Appellate Court Caption I L L I NOI S STATE BA R ASSOCI ATI ON MUTUAL I NSU RANCE COMPANY, Plaintiff-Appellee
, v

. TI MOTHY J

. CAVENAGH
, Def endant- Appellant.

District & N o. First District, F ourth Division
Docke t No. 1-11-1810

Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed November 1, 2012

Dec ember

13, 2012
Dec ember

20, 2012

Held (Note : Thi s syl lab us

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

par ed by th 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

. ) Summary judgme nt was properly enter ed for plaintiff l eg al m alpra ctice insurer in an action seeking a decla ration that plaintiff did not have to provide a defe nse for a third-par ty complaint ag ainst plaintiff’s insured arising from an underly

ing persona l injury action broug ht by the insured, since the alleg ations in the third-par ty complain t we re not within or potentially within the cover ag e of the malprac tice p o l i cy , the insured’s
counter claim under section 155 of the Insuranc e Code was proper ly denied, and an order barr ing the insur ed from further discovery was upheld.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 08-CH-44982; the Hon. Wil liam O. Maki and the Hon. Sebastian T. Patti, J udg es, presiding

.

J udg ment Affir med.Counsel on

Appea l Peter V. B ustamante, of Chica g o, for a ppellant.

Robert Marc Chemers and Adrian T. Rohrer, both of Pretzel & Stouffer Chtrd., of Chicag o, for a

ppellee.

Panel J USTI CE EPS TEI N deliver ed the judg ment of the c ourt, with opinion.
J ustices Quinn and Mc Br ide conc urre d in the judgme nt and opinion.

OP INION

¶ 1 I l l i n o i s S t at e Ba r As s o ci at i o n M u t u al I nsuranc e Company broug ht an action for decla ratory judgme nt ag ain s t its insured, Timothy J

. Cavena g h, seeking a decla ration that Cav en agh ’s profe ssional liability insurance policy did not require I SBA Mutual to defe nd Cavena g h ag ainst a claim broug ht by a fellow attorney , Richard Bogusz. I n response , Cavena g h claimed that I SBA Mutual was require d to defe nd C av enagh ag ainst Bogusz’s complaint, an d i n a four- count counterclaim, he alleg ed breac h of contract and tort claims based on I SBA Mutual’s ref usal to defe nd. The circ uit court dismiss ed the counter claim and
g rante d summary judgme nt in favor of I S BA M u t ual, and Cavena g h now appeals. For the

rea sons that follow, we a ffirm. ¶ 2 This insurance cover ag e dispute beg an with a persona l injury suit filed b y St e ven Spilotro
ag ainst Ken J oniak and another defe ndant. Spilot ro was repr esente d by Timothy Cavena g h, and both defe ndants wer e repr esente d by Richard Bog usz. That sui t en d ed i n a defa ult judgme nt awa

rd of $900,000 ag ainst J oniak. The defa ult judgme nt g ave rise to a second suit: J oniak filed a malprac tice claim ag ainst Bogusz, claiming that Bogusz failed to appea r or adequately repr esent him. Bogusz asked his profe ssional liability ins u ra nce car rier, I SBA Mutual, to defend ag ainst J oniak’s claims. I SBA Mutual assig ned the law firm of Konic ek and Dillon to defe nd Bogusz. ¶ 3 Bogusz l ater

filed a third-party complaint ag ainst Cavena g h and S pilotro for fr aud and conspirac y to commit fra

ud, alleg ing that Cavena g h had advanc ed Spilot ro’s persona l injury claim wh i l e misrepre senting the status of the suit to Bog usz to mislead him from taking further action to defe nd the case

. Bogusz specific ally alleg ed that Cavena g h, without

reve aling that a trial date had been set, told Bogusz that he did not plan to pr ocee d with the

case and that the case w ould settle for a small amount. Bogusz also alleg ed that Cavena g h and Spilot ro misled the court to procur e an inflated defa ult judgme nt awa

rd. Bogusz further claimed that Cavena g h and J oniak ag ree d to file a malprac tice suit so that J oniak could

rec over mone y

to satisfy the judg ment ag ainst him. ¶ 4 Cavena g h prese nted Bogusz’s third-par ty complaint to hi s m al p rac tice insurer, I SBA Mutual, and reque ste d r e p r e s e n ta ti o n

. Ca v e n a g h ’ s p r o f

e s s iona l liability policy require d I SBA Mutual to defe nd Cavena g h fo r any claim “ar is[ ing] out of a wrong ful act.” The policy define d the term “ wrong ful ac t”:

-2-“1. Any actua l or alleg ed neg lige nt act, err or or omission in the rende ring of or failure
to rende r PROFESSI ONAL SERVI CES, including PERS ONAL I NJ URY committed by the I NSURED in the course of re ndering PROFESSI ONAL SERVI CES; or
2. Any actua l or alleg ed neg lige nt act, err or or omission in an I NSURED’S capa city

as a direc tor or office r of any bar rela ted profe ssional leg al association or the g overning board the reof

.” The poli cy also excluded from cove rag e any claim “a rising out of any criminal, di shonest, fra udulen t , o r intentional act or omission committed by any of the I NSURED.” After Cavena g h tender ed his defe nse, I SBA Mutual ref used to defe nd Cavena g h beca use, in I SBA Mutual’s view, the c omplaint did not allege a “w rong ful ac t” as de fined by the policy , and claims based on the insured’s fra udulent or intentional acts wer e specific ally excluded from

cover ag e. ¶ 5 I SBA then soug h t a d ec l ar at o ry j u d gm en t t h at it did not owe any duty to defe nd Cavena g h ag ainst the third-par ty complaint. Cavena g h filed an answer, co u nterc laim, and aff irmative defe nse. Cavena g h alleg ed that the lawy er I SBA assig ned to defe nd Bog usz ag ainst J oniak’s malprac tice suit wa s “t h e ag ent of Bog usz and I SBA Mutual.” Cavena g h furth er alleg ed that the third-par ty complaint ag ainst him was obviously frivolous, cra fted by I SBA Mutual and Bo gu s z ’s lawy er, Konicek, so that it could j ustifiably deny cover ag e for Bogusz’s suit. The counter claim alleg ed that the purpose of the third-par ty complaint was to wrong fully exert pressure on Cavena gh an d Spilot ro t o settle their claim ag ainst J oniak for less than the full v al ue, which would limit I SBA Mutual’s financ ial exposure in the malprac tice ca se ag ainst Bogusz. Cavena g h raised four counts a g ainst I SBA Mutual in his
counter claim: brea ch of contra ct, breach of fiduciar y duty
, civil conspiracy
, an d vexatious and unrea sonable conduct in violation of section 155 of the I ll i n o i s I nsuranc e Code (I nsuranc e Code) ( 215 I L CS 5/ 155 (West 2008)). As to t he affirmative defense , Cavena g h alleg ed that I SBA Mutual should be “estoppe d” from raising an y policy defe nses ag ainst Cavena g h beca

use I SBA had “ag ree d, consente d to, and, order ed” the frivolous third-par ty complaint ag ainst Cavenag h. ¶ 6 The circ uit court g rante d I SBA Mutual’s motion to dismiss the counter claim and strike the affi rm ative defe nse. The court dismiss ed the brea ch of fiduciar y duty and conspirac y counts with prejudice
, but dismiss ed the brea ch of contra ct and section 155 counts with leave
to amend. Cavena g h filed an amende d counter claim, which the circ uit court dismiss ed with prejudice

. ¶ 7 Cavena g h then filed a motion for leave to file a second amende d counter claim, re stating his brea ch of contra ct claim based on “new fac ts,” specific ally
, that the circ uit court hear ing the malprac tice case ag ainst Bogusz dismiss ed Bogusz’s third-par ty complaint ag ainst Cavena g h. The court denied Cavena g h ’s motion for leave to file a second amende d

co u n t erc laim. Cavena g h also serve d I SBA Mutual with a reque st to produce over 6 0
cate g ories of documents and rec ords, along with 23 interrog atories. I SBA Mutual moved for

a protec tive order
, arguing that the reque sted dis co v er y wa s irrele vant to whether I SBA Mutual had a duty

to defe nd Cavena g h. The circ uit c ourt g rante d the motion for protec tive order

.

-3-¶ 8 I SBA Mutual moved for summary judgme nt. Cavena g h th e n issued additional discovery
,

b ut the court ag ain g rante d I SBA Mutual’s motion for a protec tive order

. Cavenagh t h en moved to rese t the briefing schedule for the summary judgme nt motio n ; h e attache d an I llinois Supreme Court Rule 191(b) (ef f. J uly 1, 2002) aff

i d av i t i n support of his motion,

aver ring that he could not respond until he was allowed to obtain additional discovery

. The

co u rt denied Cavena g h’s motion for discovery supported by the Rule 191(b) aff idavit. Cavena g h then responde d to I SBA Mut u al’s motion for summary judgme nt, attaching a Supreme Court Rule 191(a) aff idavit in support. The circ uit court struck Cavena g h’s R ule 191(a) aff idavit for failure to alleg e specific facts wit hin Cavena g h’s personal k nowledg e. The court g rante d I SBA Mutual’s motion for summary judgme nt, finding that I SBA Mutual had no duty

to defe nd Cavena g h. This appea l followed.

¶ 9 ANAL YSI S ¶ 10 Cavena g h raises sever al issu es o n ap p ea l
, whi ch can be g rouped into three g ener al
cate g ories: (1) the parti es ’ cl ai m s as to I SBA Mutual’s obligations under the policy ; (2) Cavena g h’s tort counter claims; and (3) limit ations on discovery prior to th e s ummary judgme nt ruling in fa

vor of I SBA Mutual.

¶ 11 Claims Based on the Policy ¶ 12 The construction of an i n s u ranc e policy raises a question of law, which we revie w de

novo

. Travelers Insurance Co. v. Eljer Manufactur i n g , Inc.
, 197 I ll. 2d 278, 292 (2001). Be cause an insurance policy is a contra ct, the rules applicable to contra ct i n t erpr etation
g overn the interpre tation of an insurance policy

. Founders Insurance Co. v. Munoz
, 237 I ll. 2d 424, 433 (2010). The primary fu n ct i o n of the court is to asce rtain and enfor ce the intentions of the parties a s expressed in the ag ree ment. Id. ¶ 13 The court confr onted the question of cover ag e under the policy in dismiss ing Cavena g h’s brea ch of contra ct counter claim under secti o n 2-615 of the Code of Civil Procedur e (735 I L CS 5/2-615 (West 2008)) and in g ranting summary judgme nt to I SBA M utual on its decla ratory judgme nt action. I n revie wing a section 2-615 dismiss al, we consider whether the alleg ations, construed in the light most favor ab l e t o t h e plaintiff, are sufficie nt to establish a cause of action upon which relief may be g rante d. Chandler v. Illin o i s Central R.R. Co.
, 207 I ll. 2d 331, 348 (2003). Howeve r, a plaintiff cannot rely simply on mere conclusions of law or fac t unsupported by specific fac tual alleg ations. Jack son v. South Holland Dodge, Inc.
, 197 I ll. 2d 39, 52 (2001). We revie w a section 2-615 dismiss al de novo

. Id

. A motion for summary judgme nt is proper ly g rante d only when the pleading s , depositions, admissions, and aff idavits on file reve al that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to judgme nt as a matter of law. 735 I L CS 5/2-1005(c) (West 2008). We revie w the cour t ’s s u m mary judgme nt ruling de novo

. Travelers , 197 I ll. 2d at 292. ¶ 14 To deter

mine whether an insurer has a duty to defe nd the insured, the court must c ompare the alleg ations in the underly ing complaint to the rele vant provisions of the insurance policy

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

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

Id. “The insurer just i fi ab l y refuses to defe nd the insured if it is clea r from the fac e of the underlying c omplaint that the alleg ations fail to state fa cts which bring the ca use within or potentially

within c overa g e.” Certain Unde rwrit ers at Lloyd’ s, London v. Boeing Co. , 385 I ll. App. 3d 23, 39 (2008) (citing Dixon Distributi ng Co. v. Hanove r Insurance Co.
, 161 I ll. 2d 433, 439 (1994))

. “[L ]i ttle weig ht is g iven to the leg al label that cha ra ct er i z es the alleg ations of the underly ing complaint; rathe r, the deter mination focuse s on whether the alleg ed conduct arguably falls wit hin at l east one of the c ateg ories of w rong doing list ed in the policy .” Illinois State Bar Ass’n Mutual Insurance Co. v. Mondo
, 392 I ll. App. 3d 1032, 1037 (2009); see also International Insurance Co. v. Rollprint Pack aging Products

, Inc.
, 312 I ll. App. 3d 998, 1007 (2000) (“[T]he duty to d ef en d d o es not require that the complaint alleg e or use lang uag e af

firmatively

bring ing the claims within the scope of the policy .”). ¶ 15 We beg in with the policy lang uag e. The policy require d I SBA M u t u al t o d efend any claim that “arises out of a wrong ful act.” The poli cy define s “wr ong ful act” as “a ny actua l

or alleg ed neg lige nt act, err or or omission in the rende ring of or failure to rende r PROFESSION AL SERVI CES, including PERS ONAL I NJ URY committed by the I NSURED in the course of rend ering PROFESSI ONAL SERVI CES.” The policy also excludes cover ag e for any claim “ar ising out of any crimi n al
, d i s h o nest, fra udulent, or intentional act or omission committed by any of the I NSURED.” ¶ 16 This court has addre ssed a n ea rl y identical poli cy provision in Illinois State Bar Ass’n Mutual In s u r a nce Co. v. Mondo
, 392 I ll. App. 3d 1032 (2009). I n that case , the policy

cover ed claims arising out of a “ ‘wrong ful act,’ ” which was define d to mean “ ‘any actua l

or alleg ed neg lige nt act, err or, or omission in the rende ri n g or failure to rende r PROFESSI ONAL SERVI CES.’ ” Mondo
, 392 I ll. App. 3d at 1038. The court deter mined that the i nsurer had no duty to defe nd wher e “the fac tual alleg ations in the *** underlying action [m ade] clea

r that [t he insured’s] failure to disclose information was alleg edly part of his ov er al l s cheme to mislead and defr aud the I nsuranc e Trust and not based upon any neg lige nt or potentially neg lige nt conduct.” Id. at 1039. The court also noted that even assuming the complaint could somehow be construed to alleg e neg lige nt acts, the fra ud count within the complaint would be excluded from cover ag e based on the policy ’s exclusion for
any claims arising from “fr audulent” acts. Id. at 1039-40. Mondo is in line with a number of other decisions in I llinois interpre ting simil ar policy lang uag e. See, e.g. , Uni t ed Fire & Casualty Co. v. Jim Malo o f Realty, Inc.
, 105 I ll. App. 3d 1048, 1048-50 (1982) (deny ing

cover ag e for intentional misrepre sentation wher e policy cover ed “neg lige nt act or omission” of the insured but did not apply to “dishonesty
, intentional fra ud, criminal or malicious act” ); International Insurance Co. v. A llied Van Lines, Inc.
, 293 I ll. App. 3d 513, 519 (1997) (deny ing c overa g e for

intentional termination of employ ee be nefits). ¶ 17 W i t h o u t addre ssing any of these case s, Cavena g h argues that we should lo o k t o t h e dictionary definition of “wr ong ful act” to deter mine the meaning of the polic y

. He ci t es definitions that do not specific ally mention “neg lige nce,” an d then argues that “[i] f I SBA Mutual intended to limit c overa g e under the policy to only neg lige nce, it could ha

ve ea sily done so.” The problem with this argument is that I SBA did limit the policy to neg lige nt acts,

err ors, and omissions b y d efining the term “wr ong ful act.” Where the policy specific ally

-5-define s “wr ong ful act,” we are not at liberty to sear ch for other possible definitions in order

to “cr eate an ambiguity wher e none exis ts.” Dixon Dist ributi n g C o. v. Hanover Insurance Co.
, 161 I ll. 2d 433, 441 (1994). To do so would thwart the plain lang uag e of the policy and the intent of the pa

rties. ¶ 18 Cavena g h next claims that the phra se “ne g lige nt act, er ror or omission” should be rea d

so that t he word “neg lige nt” only modifies “ac t” and not “er ror” or “omission.” I n other words, Cavena g h argues that the p o l i cy covers neg lige nt acts, intentional err ors, and intentional om i s s i o n s

. W e have littl e to add to the reje ction of this same arg ument in TIG Insurance Co. v. Joe Rizza Lincoln-M ercury , Inc.
, No. 00 C 5182, 2002 WL 406982 (N.D. I ll. Mar. 14, 2002). There
, the court rea soned that “[i] t would be illogica l for an endorse ment to limit cover ag e to neg lige nt acts, bu t t o p rovide cover ag e for intentional omissions or

err o rs

. ” Id

. at *9. The court also cited I llinois appellate court case s interpre ting the “ver y common” phrase
, noting that those courts “have assumed, without deciding
, that ‘neg lige nt’

mo d i fi es act, error , and omi ssion and thus excluded cover ag e for intentional conduct.” Id. (citing United Fire
, 105 I ll. App. 3d at 1048, and International I nsurance , 293 I ll. App. 3d
at 519); see also Mondo
, 392 I ll. App. 3d at 1038-39. I f there wer e any doubt, the policy here specific ally excludes cover ag e for “intentional acts.” Indeed, ad o p ting Cavena g h’s interpre tation of t he phrase “neg lige nt act, error or om ission” would set t wo p ro v i s i ons of the policy in conflict. Reading the definition of “wr ong ful act” along with the exclusion for fra udulent and intentional acts, we conclude that I SBA Mutual’s duty to defen d i s only trig g ere d by allegat i o n s t h at the insured has committed an act of neg lige nce, not an act classified a s intentional. ¶ 19 W e t u rn t o t h e third-par ty complaint ag ainst Cavena g h and Spilot ro. The c omplaint contains t wo counts: one for “fr aud” an d one for “conspira cy .” I n support of t hese claims, the complaint first alleg es a series of intentional misre prese ntations in a scheme to de fra ud Bogusz and the court in order to obtain a defa ult judgme nt ag ainst J o n i ak : (1 ) Cavena g h made “intentional misrepre sentation[s] of the status of the underly ing lawsuit” to Bogusz “to mislead him from taking further action to defe nd the case ”; (2) Cavena g h “knew that telling Bogusz that he did not plan to proce ed with case when a trial date had been obtained by him when made and was made with the intent t o m islead Bogusz”; and (3) Cavena g h “intentionally misrepre sented to the Court at the [default judgme nt] prove- up hear ing that Spilot ro’s injuries *** we re muc h worse tha n [S pilotro’s] m edica l rec ords” demonstrated. The complaint alleg es a second, related scheme, in which C avena g h “re cruited the aid” of J oniak and enter ed into an unwritten ag ree ment with him (af ter the limit ations period had run for challeng ing the def

au l t judgme nt) “to avoid a meritorious challeng e by J oniak to the fra udulent *** underlying de fault judg ment.” The n, the complaint alleg es that J oniak, still working in conce rt with Cavena g h, filed a malprac tice suit so t h at J o niak could rec over money to satisfy the defa

ult judgme nt. As I SBA Mutual points out, Cavena g h’s actions are descr ibed as “intentional” six times, and the word “fra ud” is also used a t least six times to char acte rize Cavena g h’s supposedly deliberate eff orts. These alleg ations, when const rued liberally in favor of Caven agh
, d o not come close to alleg ing neg lige nt acts. See, e.g. , Steadfast Insurance Co. v. Caremark Rx, Inc.
, 359 I ll. App. 3d 749, 761 (2005) (finding that policy excluded cover ag e for intentional condu c t a n d c o mp la int alleg ed a “sche me to mislead

-6-and defr aud”) ; A t l a ntic Mutual Insurance Co. v. American Acade my of Orthopaedic

Surgeons
, 315 I ll. App. 3d 552, 563-64 (2000) (finding no cover ag e for complaint alleg ing conspirac y to “conc eal” and “fa il[ ] to disclose” wher e policy excl u d ed cover ag e for intentional acts). ¶ 20 We note that the wea kness of the cover ag e claim in this case stems from the theory that Cavena g h advanc ed in his counter claim. The crux of Cavena g h’s claim is not that I SBA was wrong to deny cover ag e beca use the underly

ing complaint alleg ed neg lige nt acts cover ed by the pol i cy

. I n s t ead, Cavenag h argues t hat t he complaint ag ainst Cavena g h was “obviously false and frivolous” and the alleg ations within it wer e “woe fully defic ient to support a claim of fra ud.” The problem is that the false or frivolous nature of the third-par ty complaint does nothing to advanc e the duty -to-def end claim. As a g ener al matter, when the und er l y i ng complaint alleg es fac ts within or potentially within the policy ’s cover ag e, the insurer’ s duty
to defe nd arises even if the allega tions are g roundless, false or fraudulent. Gene ral Agents Insurance Co. of

America, Inc. v. Midwest Sporting Goods Co.
, 215 I ll. 2d 146, 155 (2005). I n this case , the policy imposes a duty to defe nd “eve n if any of the alleg ations of the suit ***

are g roundless, false or fra udulent

. ” C av enag h’s argument implies that an insurer must defe nd a complaint’s false or frivolous alleg ations, reg ardle ss of whether the alleg ations otherwise come with the policy ’s cover ag e. But “[t] he duty to defe nd does not depend on the probability of rec overy .” Rollprint Pack aging
, 312 I ll. App. 3d at 1007. I t is the nature of the alleg ations in the underlying complaint that control, not their likelihood of succe ss. Wher e the fac ts alleg ed, even if false or g roundless, are not within or potentially within the policy ’s lang uag e, the insure r has no duty to defe nd. ¶ 21 On appea l, Cavena g h raises two additional arg uments rele vant to the brea ch of contra ct claim, both of which fo cu s o n the dismiss al of Bogusz’s third-par ty complaint ag ainst Cavena g h in the J oniak s u i t

. T h e circ uit court first dismiss ed Bog usz’s complaint without prejudice under section 2-615 beca use the complaint “lac k[ed] the requisite fac tual specific ity nece ssary to alleg e all of the elements of fra ud and conspiracy .” The court then dismiss ed B og usz’s amended c omplaint ag ainst Cavenag h with prejudice under section 2- 619, ruling that the ac tion ag ainst Cavenag h was untimely

. ¶ 22 C av en agh fi rs t claims that the court in the J oniak case found that the “third-pa rt y complaint ag ainst Cavena g h did not alleg e fra ud,” and as a result I SBA Mutual is “pre cluded by res judicata from relying on the fra ud exclusion in the policy .” We disag ree

. The doctrine of res judicata will only bar a subsequent action betwee n the same partie s o r t h eir privies wher e “an ident i t y o f ca use of action” exis ts betwee n the two actions. Hudson v. City of C h i ca g o , 2 2 8 I ll. 2d 462, 467 (2008). There is simply no “identity of cause of action” betwee n the Bogusz third-par ty complaint and this action. Cavena g h misstate s t he court’s ruling in dismiss ing Bogusz’s complaint; the circ uit c o u r t n e v er conclude d that the complaint “did not alleg e fra

ud.” I n fac t, the court did not even rule on the sufficie ncy of the alleg ations in Bogusz’s amende d third-par ty complaint. Moreove r, this argument confuse s the sufficie ncy of the alleg ations in Bogusz’s complaint with the nature of those alleg ations. The court’s ruling as to the specific ity of alleg ations in the Bogusz suit (much less a ruling as to the timeliness of suit) s ay s nothing about whether I SBA Mutual’s policy cover s the alleg ations in Bog usz’s complaint.

-7-¶ 23 Cavena g h next arg ues that the c ircuit court wrong ly denied his motion for lea ve to file

a second amende d counter claim, restating the count for brea ch o f contra ct. The decision whether to allow or deny an amendment is a matter within the circ uit court’s discretion, and

we will reve rse only if the circ uit court abused its discret i o n

. Seitz-Partridge v. Loyola University of Chicago
, 409 I ll. App. 3d 76, 86 (2011). I n deter min i n g wh ether the court abused its d i s cr eti on, we weig h the following fac tors: (1) whether the proposed amende d complaint would cure defe ctive pleading s; (2) whether the amendment would surprise or prejudice the opposing party ; (3) whether the amendment was timely filed; and (4) whether the m ovant had previous oppo rt unities to amend. Id. I n this particula r case, the first fac tor is dispositi ve. The sole basis for Cavena g h’s second amendment to his counter claim was the circ uit court order dismiss ing Bogusz’s third-par ty comp laint, y et the amendment does nothing to cure the defe cts in the brea ch of contra ct claim. On appea l, Cavena g h argues that the dismiss al of the third-par ty complaint “wa s the law of the case with respe ct to the thirdparty complaint.” This argument, like the res judicata argument, wrong ly assumes that I SBA Mutual’s d uty to defe nd rises and falls with the sufficie ncy of the pleading of the Bog usz complaint. As we ha

ve explained above, that is not the test for cover ag e. The court did not abuse its discretion in denying Cavena gh ’s m o t i on for leave to file a second amende d
counter claim. ¶ 24 Having found that the policy did not impose a duty to defe nd ag ainst the Bogusz suit, we conclude that the circ uit court proper ly g rante d summary judgme nt to I SBA Mutual. We also aff irm the dismiss al of Cavena g h’s brea ch of contra ct counter cla i m

. As with the duty to defe nd claim, all of Cavena g h’s alleg ed brea ches of the policy –fa i l u re to adequately investigate the claims, failure to independe ntly revie w the claims, failure to defe nd when it knew or should have known that the alleg ations wer e false–pr esuppose cover ag e under the policy

. For ex am p l e, the “fa ilure to investigate” claim assumes that if I SBA Mutual had investigated, it wo u l d have discovere d that the complaint in fac t alleg ed a “neg lige nt act,

err or or omission” cover ed by the policy

. The circ uit court proper ly dismiss ed the brea ch of
contra ct counter claim.

¶ 25 Section 155 Claim and Estoppel Claim ¶ 26 Cavena g h ’s co u n t er claim also alleg ed that I SBA Mutual violated section 155 of the I nsuranc e Code (215 I L CS 5/155 (West 2008)). Section 155 allows for “an extracontrac tual

reme dy ” of attorney fee s and costs for an insurer’ s “unre asonable and vexatious” ref usal to comply with its policy obligations. Cramer v. Insurance Exc hange Agenc y , 174 I ll. 2d 513, 523-24 (1 9 9 6); 215 I L CS 5/155(1) (West 2008). But “[w]here the policy does not apply
, there can be no finding that the i n s u re r ac ted vexatiousl y and unrea sonably [i n denying a claim].” American Family Mutual Insurance Co. v. Fisher Dev elopment, Inc.
, 391 I ll. App. 3d 521, 533 (2009); see also State Farm Mutual Automobile Insurance Co. v. Smith
, 197 I ll. 2d 369, 380 (2001) (“[W] here a bona fide dispute conce rning cover age exis ts, costs and sanctions [under section 155] are in a p p r o p r ia te

. ” ) ; Li b e r ty Mutual Insurance Co. v. American Home Assurance Co.
, 368 I ll. App. 3d 948, 962 (2006) ( finding that insurer’ s conduct was not vexatious or unrea sonable wher e insurer denied cover ag e based on exclusion that court later d et er m i n ed was applicable ). The policy here did not cover Bogusz’s claim, and

-8-Cavena g h’s sec tion 155 claim theref ore w as prope rly

dismiss ed. ¶ 27 Cavena g h next arg ues that the c ircuit court err ed in striking his affirma tive defe nse for estoppel. A motion to strike an aff irmative defe nse admits all well-plea ded fac ts constituting the defe nse, toge ther with all rea sonable infere nces that may be draw n there from, and raises only a question of law as to the sufficie ncy of the pleading

. Bank of America, N.A. v. 108 N. S t ate Retail LLC
, 401 I ll. App. 3d 158, 170 (2010). A court must consider whether t h e defe ndant has a lleg ed fa cts sufficie nt to constitut e a le g ally cog nizable defe nse. Id. ¶ 28 “The g ener al rule of estoppel provides that an insurer which takes the position t h at a complaint potentially alleg ing cover ag e is not cover ed under a policy that includes a duty to defe nd may not simply ref use to defe nd the insured.” Employe rs Insura n ce of W ausau v. Ehlco Liquidat ing Trust
, 186 I ll. 2d 127, 150 (1999). The insurer has two options: (1) defe nd the suit under a rese rvation o f ri gh t s , o r (2) seek a decla ratory judgme nt that there is no

cover ag e. Id. “I f the i n s u rer fails to take either of these steps and is later found to have
wrong fully denied cover age , the insurer is estopped from raising policy defe nses to

cover ag e.” Id. at 150-51. ¶ 29 I n this case , afte r I SBA M u t u al refused to defe nd Cavena g h, it avoided any claim of estoppel by seeking a decla ration t h at t here was no cover ag e for the Bogusz suit. I n any event, our supreme court has made clea r that “[the] estoppel doctrine applies only wher e an insurer has brea ched its duty to defe nd” and “[a]ppli cation of the estoppel doctrine is not ap propriate if the insurer had no duty to defe nd.” Id. at 151. Where we have affi rm ed t h e circ uit court’s dete rmination that I SBA Mutual had no duty to de fend under the policy , we find no err or in the circ uit court’s dec ision to st rike Cave nag h’s estoppel de fense

.

¶ 30 Cavena g h’s Tort Counterc laims ¶ 31 Breach of Fiduc iary Duty ¶ 32 Cavena g h argues that it was err or for the circ uit court to dismiss his brea ch of fiduciar y duty claim. While it i s settled law that “no f iduciary rela tionship ex ists between a n insurer and an insured as a matter of law” ( Martin v. State Farm Mutual Automobile Insurance Co.
, 348 I ll. App. 3d 846, 850-51 (2004))
, Cavena g h ar gu es that a fiduciar y duty arose out of specia l circ umstances of his rela tionship with I SBA Mutual. A fiduciar y duty b y “s p ec i al rela tionship” may ar i s e wher e “one party place s trust and confide nce in another
, there by 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 I ll. App. 3d 951, 963 (2009). “ ‘This position of superiority may arise by rea son of friendship,
ag ency , or experience .’ ” Fichtel
, 389 I ll. App. 3d at 962 (quoting Connick v. Suzuki Motor Co. , 174 I ll. 2d 482, 500 (1996)). ¶ 33 The complaint does not a lleg e, even in a conclusory

fashion, that a specia l r elationship exis ted betwe en Cave nag h and I SBA Mutual. There is a single alleg ation in support of the exi s t en ce of a fiduciar

y duty : “As a result of the rela tionship betwee n I SBA Mutual and Cavena g h, wher e Cavena g h was not only an insured but also a potential defe ndant, I SBA Mutual owed a fiduciar

y duty to Cavena g h.” As s er t i n g that there is an insurer- insured rela tionship does not satisfy the standards for pleading a fiduciar y duty by virtue of a specia l

-9-rela tionship. “[T] he mere fac t that a contra ct of insurance *** exis ted betwee n the parties is

insufficient to support a finding of a fiduciar y rela tionship.” Martin
, 348 I ll. App. 3d at 851;

see al so Ransom v. A.B. Dick Co.
, 289 I ll. App. 3d 663, 672 (1997) ( “[O]rdinarily in a business transac tion each pa rty g uards his own intere sts and no fiduciar y duty exis ts.”). ¶ 34 The complaint is also devoid of any fac tual allegations t hat C avena g h place d trust and confide nce in I SBA Mutua l b y reason of friendship, ag ency , or experience

. On appea l, Cavena g h claims that he “trusted that I SBA Mutual would never allow a frivolous third-par ty complaint to be filed ag ainst him beca use they [ sic ] knew he was al s o insured by I SBA Mutual,” but this is not hing mor e than saying that the i nsurer -insured relationship exi sted. Cavena g h also arg

ues that he trusted I SBA Mutual to “prote ct his financ ial well-be ing” and otherwise perf

orm its duties under the policy

. There are no specific fac tual alleg ations, howeve r, g iving rise to a rela tionship of trust or confide nce. Nor would a bare alleg ation of
trust be sufficie nt to state a cause of action. I n Martin
, for example, the court considere d the insured’s alleg ation that “trust” was place d in the insurer beca use the insurer told the insured that it would “take car e of” the claim. Martin
, 348 I ll. App. 3d at 850. The court noted that “[t] here [were] no alleg ations of a history of dealing s or long- standing rela tionship betwee n the parties, or that plaintiffs had entrusted the handling of their insurance aff airs to [t he insurer] in the past, or that [the insurer] was in a position of such superiority and influenc e by rea son of friendship, ag ency , or experienc e. ” Id

. at 851-52; see also Magna Bank of Madison County v. Jame son , 237 I ll. App. 3d 614, 619 (1992) (“The deg ree of trust and confide nce can be established by the following fac tors: deg ree o f k i n s hip, ag e disparity
, health, mental condition, education, business experience betwee n the parties, and the extent of the re liance.” ). ¶ 35 Fur

thermore
, even assum i n g t h at C avena g h place d his trust in I SBA Mutual, there are

no alleg ations from which we could infer that Cavena g h ’s “t rust” put I SBA Mutual in a position of superiority and influence over Cavena g h. See Miller v. W illiam Chevrolet/GEO, Inc.
, 326 I ll. App. 3d 642, 657 (2001) (holding that transac tion betwee n deale r and customer “did not possess suffic i en t indicia of disparity in experience or knowledg e such that the deale r could be said to ha ve g ained influence and superiority over the purcha ser” ); Fichtel
, 389 I ll. App. 3d at 963-64. To the ex tent that Cavena g h intended to claim a fiduciar y duty

arose from particula

r circ umstances, “i t wa s incumbent upon [hi m] to identify those ci rc u m stance s and plead them with specific ity .” Martin
, 348 I ll. App. 3d at 852. I n t h e absenc e of any alleg ations establishing a fiduciar y rela tionship, the circ uit court did not err in dismi ssing Cave nag h’s bre ach of fiduciar y duty claim.

¶ 36 Civil Cons piracy ( Fraud) ¶ 37 Cavena g h next challeng es the dismissal of his “ civil c onspiracy” claim. “The elements of a civil conspirac y are : (1) a combination of t wo or more persons, (2) fo r t h e p urpose of

acc omplishi ng by some conce rted action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the further ance of which one of the conspirator s committed an overt tortious or unlawful act.” Fritz v. Johnston
, 209 I ll. 2d 302, 317 (2004). A conspirac y is not

an independe nt tort. Indec k North American Power Fund, L.P. v. Norweb PLC
, 316 I ll. App.

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

underlying [the] conspiracy alleg ations, the claim for a conspira cy

also fails.” Id. ¶ 38 W h i l e C av en agh’s complaint did not specify that his conspirac y claim was based o n alleg ations of fra

ud, he now relies on the tort of fra ud as the basis for the conspirac y claim. The elements of fra

ud are : “ ‘(1) a false statement of materia l fac t; (2) the party making the
statement k n ew o r believed it to be untrue; (3) the party to whom the s tatement was made had a r ight to rely on the statement; (4) the party to w hom the statement was made did re ly

on the statement; (5) the statement was made for the purpose of inducing the other party to act; and (6) the relianc e by the person to whom the statement was made led to that person’ s injury .’ ” Cramer v. Insurance Exc hange Agenc y , 174 I ll. 2d 513, 529 (1996) (quoting Siegel v. Levy Organization Developme nt Co. , 153 I ll. 2d 534, 542-43 (1992) ). I n order to state a

cause of action for common law fra ud, the essential elements of fra ud must be pleade d with specific ity

. Id. ¶ 39 Cavena g h alleg ed that the Bogusz complaint was a false statement made by I SBA Mutual
to induce Cavena g h (and his client, Spilot ro) to settle Spilot ro’s claim ag ainst J oniak for less than the full value. Even if we assume that there are specific fac tual alleg ations showing that the Bogusz complaint was a “fa lse statement” attri b u table to I SBA Mutual, the complaint fails to include any fac tual alleg ations that Cavena g h actua lly relied on the Bogusz complaint
or t hat t his relianc e led to his injury

. The complaint contains no alleg ations that Cavena g h

was induced to settle his claim or acte d, to his detriment, based on Bogusz’s alleg ations. I n fac t, Cavena g h repe atedly states that the Bogu s z co m p laint was obviously frivolous and “pate ntly defe ctive,” neg ating any claim that he relied on the complaint. Cavena g h also took immediate steps to obtain cover ag e and, when cover ag e was denied, obtain dismiss al of the suit. These actions further establish that Cavena g h did not actually rely on the B og usz sui t

or that any relianc e led to his injury

. Cf. Trautman v. Knights of Columbus
, 121 I ll. App. 3d 911, 914-15 (1984) (finding insured did not plead relianc e based on insurer’ s alleg ed forg ery of policy amendment, whe re “ plaintiff’s ac cusations of forg ery and her immediate steps to protec t her rig hts under the c ontrac t clear ly belie re liance on the amendment” ). ¶ 40 Cavena g h argues that re liance is e stablished “by the fact that an ins ured relies upon an insurer to provide cover ag e that comports with I llinois law and is fre e from fra ud and dece it.” But this say s nothing about the alleg ed statement by I SBA Mutual at issue here –the Bogusz complaint–or whether Cavena g h actua lly relie d o n it to his detriment. The alleg ations of relianc e are based on “m er e co n clus ions of law or fac t unsupported by specific fac tual alleg ations.” P o o h-Bah Enterprises, Inc. v. County of Cook
, 232 I ll. 2d 463, 473 (2009). Where Cavena g h failed to state an independe nt claim of fra ud, the court did not err in dismiss ing Ca

venag h’s conspira cy

claim.

¶ 41 L imitations on Discover y ¶ 42 Cav en agh n ex t co ntends that afte r the dismiss al of his counter claim, the circ uit court improperly limit ed disco very , impeding his ability to defe nd ag ainst I SBA Mutual’s
summary judgme nt motion.

-11-¶ 43 Motion for Protective Orde r

¶ 44 Cavena gh ar gu es t h at the circ uit court err ed by g ranting I SBA Mutual’s motion for a protec tive order barr ing Cavena g h from discovery

. We revie w the circ uit c ourt’s ruling for an abuse of discre tion. Reda v . Advoc ate Health Care , 199 I ll. 2d 47, 54 (2002). ¶ 45 T h e only claim still at issue when Cavena g h issued his discovery reques t s wa s I S BA Mutual’s brea ch of its duty to defe nd. “[W ]here the issue is whether the i nsurer has a duty
to defe nd, a court ordinarily looks first to the al l ega t i o n s in the underly ing complaint and
compares those alleg ations to the rele vant provisions of the insurance policy .” Pek in Insurance Co. v. W

ilson
, 237 I ll. 2 d 4 4 6
, 4 55 (2010). I n the few case s wher e courts have looked bey ond the underlying complaint o n a cover ag e question, the outside information

came from pleading s or filed documents that aff ecte d whether the complaint’s alleg ations fell within the policy lang uag e. For example, in Pek in
, wher e the comp l aint ag ainst the insured alleg ed intentional a cts, the court found that it was proper to examine the insured’s
counter -plea ding, w hich sug g ested that the insure d was a cting in self-de fense
, beca use t he policy contained a self-defe nse exception. Id. at 450-51. Simi larly
, in Millers Mutual Insurance Ass’n of Illinois v. A i nsworth Seed Co.
, 194 I ll. App. 3d 888 (1989), the court examined the underlying complaint along with a n aff idavit f rom the insured’s employ ee in order to resolve “ confusion in the plea dings.” 194 I ll. App. 3d at 890-93. ¶ 46 By contra st, here the discovery soug ht by Cavenagh h ad n o ef fe ct o n wh et h er the al l ega t ions in the Bogusz complaint wer e cover ed by the policy

. For example, Cavena gh
soug ht discovery reg arding “the rule on wh i ch I S BA Mutual made [t he decision not to defe nd]” and “the extent of I SBA Mutual’s knowledg e of Konicek’ s acts in filing the thirdparty complaint.” I n contra st to Pek in and Ains w o r t h
, the reque sted information has no bear ing on whether the Bogusz complaint alleg ed a “neg lige nt” act or whether the complaint alleg ed intentional acts bey ond the policy ’s cover ag e. The court did not abuse its discretion in gr anting I SBA Mutual’s motion for pr otective or der.

¶ 47 Rule 201(k) Violation ¶ 48 Cavena g h next argues that the court abused its discretion when it g rante d I SBA Mutual’s

m o t i o n fo r a protective order because I SBA Mutual did not comply with I llinois Suprem e Court Rule 201(k). I ll. S. Ct. R. 201(k) (ef f. J uly 1, 2002). Rule 201(k) require s that “[e]very motion with respe ct to discovery shall incorporate a statement that afte r p e r s o n a l c o n s u lt a tion and rea sonable attempts to resol v e d i ff er ence s the parties have been unable to rea ch an

acc ord.” Id. This court has previously rec og nized that “strict technica l compliance with Rule 201(k) is not required,” howeve r, “so long as the rec ord ref lects 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 I ll. App. 3d 723, 729 (1993). H ere , the circ uit court hear d I SBA Mutual and Cavena g h argue at l en gt h as to whether there was

cre dible evidenc e that Bogus z ’s t h i rd -par ty complaint was the product of a conspirac y

. Cavena g h’s discover

y reque sts we re larg ely an attempt to r esurr ect those claims dismiss ed with prejudice
, and the rec ord sug g ests that any attempt to rea ch a compromise would have been f utile. Cf. Hartnett v. Stack
, 241 I ll. App. 3d 157, 174 (1993) (c oncluding that failure

-12-to comply with Rule 201(k) was not f atal wher e the rec ord showed that the parties wer e, in fac t, “unable to rea ch an acc ord afte r rea sonable attempts to resolve differ ence s”). We there fore conclude that the circ uit court did not abuse its discretion in considering the motion for pr otective or der de spite a tec hnical violation of Rule 201(k).

¶ 49 Supreme Court Rule 191( b) Affidavit ¶ 50 Cavena g h n ex t co n t en d s that the circ uit court incorre ctly struck the I llinois Supreme Court Rule 191(b) aff

idavit he submitt ed in response to I SBA Mutual’s summary judgme nt motion. Rule 191(b) pr ovides, in releva nt part: “I f the aff idavit of either party contains a statement that any of the materia l f acts which
oug ht to ap p ea r i n t he aff idavit are known only to persons whose aff idavits aff

iant is unable to proc ure by rea son of host ility or ot herw ise, naming the per sons and showing why their affidavits cannot be procur ed and what affiant believes they would testify to if sworn, with his rea sons f or his belief, the court may make any order that may be just, either g rantingor re fusing the motion ***.” I ll. S. C t. R. 191(b) (ef f. Jul y 1, 2002). ¶ 51 I n his aff

idavit, Cavena g h first argued that he co u l d n o t i n t ellige ntly respond to the motion for summary judgme nt without first obtaining documents and taking d ep o s i tions
reg arding who made the decision to deny cover ag e and why and how the decis i o n was

rea ched. This is simply a restate ment of Cavena g h’s fa i l ed discovery reque sts. We have explained above that the discovery Cavena g h soug ht was not rele vant to I SBA Mutual’s obligation to defend unde r the policy

. ¶ 52 Cavena g h also claimed that he neede d additional d i s co v er y rega rding a “disc repa

ncy ” betwee n the lang uag e quoted in the summary judgme nt motion and the lang uag e contained in the policy first issued to Cavena g h. Whil e it is true that the text of policy “I L 12/2007” did
not exactly match the text of pol icy “I L 12/2005,” t here is no substantive differ ence in the

cover ag e provisions. The chang es are in form, repla cing the pronouns “we ” and “y ou” with the terms “the Company ” and “the I nsured.” We ag ree with the circ uit court that additional discovery would have se rved no c onstructive purpose

.

¶ 53 Supreme Court Rule 191( a) Affidavit ¶ 54 Cavena g h also argues that the ci rcuit court improperly struck his Supreme Court Rule 191(a) aff idavit. Rule 191(a) require s that an aff idavit in opposition to a motion for summary judgme nt “shall be made on the persona l knowledg e of the aff iant s ”; “s h al l s et forth with particula rity the fa cts upon which the claim, counter claim, or defe nse is ba sed”; and “shall
not consist of conclusions but of fac ts admissible in evidenc e.” I ll. S. Ct. R. 191(a) (ef f. J uly 1, 2002). “Rule 191(a) should be construed acc ording to the plain and ordinary meaning of its lang uag e. I ts provisions should be adher ed to as written.” Robidoux v. Oliphant
, 201 I ll. 2d 324, 347 (2002). Cave nag h’s af fidavit clea

rly did not comply with the require ments set forth in Rule 191(a) : the aff idavit set forth unsupported asser tions and conclusions, and the aff idavit set forth alleg ations clea rly bey ond Cavena g h’s persona l knowledg e. See Fabiano

v. City of Palos Hills
, 336 I ll. App. 3d 635, 650-51 (2002) (“ ‘A court must disreg ard conclusions in aff

idavits when adjudicati n g a summary judgme nt motion.’ [C itation.] ”

-13-(Emphasis in orig inal.)); In re E.L.
, 152 I ll. Ap p

. 3 d 25, 31 (1987) (noting the “we ll

established principle of law that *** documents [filed in support of] summa r y ju d gment must

rec ite fac ts a

nd not me re conclusions or statements ba sed on informa tion a nd belief” ). The circ uit court proper ly

struck Cave nag h’s Rule 191(a) aff idavit.

¶ 55 CONCL USI ON ¶ 56 For the fore g oing rea sons, we aff i rm t h e circ uit court’s order dismiss ing Ca venag h’s
counter claim and striking his aff irmative defe nse of estoppel. We find no err or in the court’s discovery ruling s. We also aff i rm t h e order g ranting summary judgme nt in favor of I SBA Mutual.

¶ 57 Affir

med.

-14-