2018 IL App (1st) 171532

No. 1-17-1532

FIRST MERCURY INSURANCE COMPANY , ) ) Plaintiff and Counter-Defendant- Appellee , ) )
v. ) ) PAUL J. CIOLINO; PAUL J. CIOLINO AND ) ASSOCIATES, INC. ; PAUL J. CIOLINO AND ) ASSOCIATES, LLC; and Alstory Simon, ) ) Defendant s ) ) (Paul J. Ciolino; Paul J. Ciolino and Associates, Inc.; and ) Paul J. Ciolino and Associates, LLC; Defendants and ) Counter- Plaintiffs -Appellants ). ) SIXTH DIVISION MAY 11, 2018

Appeal from the Circuit Court of Cook County.

No. 15 CH 05558

Honorable Sanjay T. Tailor, Judge Presiding.

JUSTICE CUNNINGHAM deli vered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.
O PINION ¶ 1 In thi s insurance coverage dispute, p laintiff First Mercury Insurance Company (First Mercury) filed a declaratory judgment action against its insured, defendants Paul J. Ciolino, Paul
J. Ciolino & Associates, Inc., and Paul J. Ciolino & Associates , LLC (collectively, Ciolino).
Ciolino filed a six -count counterclaim

. The circuit court dismissed five counts of the
counterclaim and in a subsequent order granted summa ry judgment in favor of First Mercury , including with respe ct to the remaining count of the counterclaim

. For the following reasons , we affirm the judgment of the circuit court of Cook County.1-17-1532
¶ 2 BACKGROUND ¶ 3 The crux of this insurance coverage dispute is wh ether First Mercury owed coverage to its insured, Ciolino, in an underlying lawsuit for malicio us prosecution initiated by Alstory
Simon. The complaint commencing the underlying action ( Simon action ) was filed in federal court in February 2015 against Northwestern University (Northwestern) , Davis Protess, Paul J. Ciolino, and Jack P. Rimland. Simon v. Northwestern University, No. 15

- cv
- 1433 (N.D. Ill.)

. According to the Simon complaint, Protess was a professor at Northwestern who taught an investigative journalism class , Ciolino acted as a private investigator for Northwester n , and Rimland was an attorney

. Simon alleged that in the late 1990s, these defendants “ conspired to
frame Simon ” for a 1982 double murder “ in order to secure the release of the real killer, Anthony Porter, ” who had been convicted of the crime. Simon ’ s complaint included counts f or malicious prosecution and conspiracy against Ciolino. ¶ 4 Sim on’ s complaint alleged that Protess instructed his students to investigate the murder
case and “de velop evidence of Porter ’ s innocence. ” Simon alleged that “ Northwestern, through its employees and/or agents Protess and Ciolino, inten tionally manufactured false witness

stat e men ts against Simon an d then used the fabricated evidence, along with terrifying thre at s and other illegal and deceitful tacti cs, to coerce a knowing false confession from Simon. ” Among other acts, Simon alleged that in February 1999, Ciolino “ illegally impersonated a police officer and, while armed with a handgun, ” entered Simon ’ s house and “ obtained a false confession from
Simon to the murder” th rough threats , false evidence, and “ other illegal tactics. ” ¶ 5 According to Simon ’ s complaint , i n Ma rch 1999 a grand jury indicted him based on “the false evidence manufactured by the Northwestern Team. ” Simon alleged that, as a direct result of

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the Simon defendants’ conduct, he pleaded guilty in Sep tember 1999 to the murder of one of the
victims and the voluntary manslaughter of the second victim. ¶ 6 I n October 2013, the Cook County State ’ s Attorney ’ s o ffic e announced that it would re

investig ate the murder case

. In October 2014, t he State ’s Attorney’s o ffice requested that the
circuit court vacate the murder and volunt ary manslaughter charges against Simon. On the same day, Simon was released

. ¶ 7 It is undisputed that First Mercury was not Ciolino’ s insurer when Simon was allegedly
framed or at the time of his 1999 gu ilty plea and conviction

. However, First Mercury was
Ciolino ’ s insurer at the time of Simon ’ s eventual exoneration in 2014. ¶ 8 Beginning in 2006 , First Mercury issued a number of policies to Ciolino, each with a

one- year term

. These included a policy in effect at the time of Simon ’ s 2014 exoneration (the
2014- 15 policy)

. The 2014

- 15 policy provided four coverages: “Coverage A

— Bodily Injury and Property Damage Liability ” ; “Coverage B

— Personal and Advertising Injury Liability ” ; “Coverage C

— Medical Payments ” and “Coverage D

— Errors and Omissions. ” This appeal

concerns application of Coverage B, under which First Mercury agreed:
“W e will pay those sums that the insured becomes legally obligated to pay as damages because of ‘ personal injury ’ or

‘ advertising injury’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘ personal injury ’ or

‘ advertising injury ’ to which this insurance does not apply.”

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Cov erage B also specified that it applied to “ ‘Personal injury’ caused by an offense arising out of your business *** but only if the offense was committed *** during the policy period.” ¶ 9 The 2014

- 15 p olicy elsewhere defined the term “ personal injury ” to mean “ injury, other
than ‘ bodily injury, ’ arising out of one or more of the following offenses ,” followed by a list including “ malicious prosecution. ” However, the 2014

- 15 policy does not define the term

“ offense. ” ¶ 10 In April 2015, shortly after the Simon action was commenced , First Mercu ry filed a complaint in the circuit court of Cook County for de claratory judgment again st Ciolino

. 1 First Mercury ’ s complaint pleaded that the alleged “o ffense ” in the Simon action occurred outside the policy period of any First Mercury policy issued to Ciolino. First Mercury alleged that Coverage
B of the 2014

- 15 policy did not apply because t he Simon complaint “ asserts no clai m for ‘personal injury’ caused by an offense committed during the policy periods. ” Thus, First Mercury alleged that it owed no duty to defend or indemnify Ciolino in the Simon lawsuit. ¶ 11 On December 15, 2015, Ciolino filed a verified counterclaim containing six counts. Each
of those counts incorporated allegations that in the spring of 2006 , Ciolino contacted an a gent of
Fi rst Mercury and “ asked if First Mercury ’ s policy would insure against clai m s of malicious prosecution tha t arose durin g t he term of the p o licy. ” Ciolino alleged that “ [h]e was told that the policy would insure against such claims ” and that he relied on that representation. The
counterclaim alle ged that First Mercury knew or should have known that “ in Illinois a claim for malicious prosecution does not exis t” until “ the termination of the proceeding in favor of the plaintiff. ” Cioli no thus al leged that “ the relevant even t fo r the purpose of determining insuran ce
coverage is exoneration, the final legal element of the [ malicious prosecution] claim. ”

1 Simon was named as a defendant in the declaratory judgment complaint, but he is not a party to this appeal.
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¶ 12 Count I of the counterclaim, for breach of contract, alleged that First Mercury breached
the 2014

- 15 policy by refusing to defend and indemnify Ciolino in the Simon action

. Count II
p leaded in the alternative that the 2014

- 15 policy should be refor med to afford coverage for the
Simon case
. Count III pleaded “promissory estoppel ” in that Ciolino relied on First Mercury ’s “unambiguous promise that it would provide insurance coverage against claims of malicious prosecution that arose during the policy period. ” Ciolino also pleaded a count for “equitable estoppel” (count IV) . Counts V and VI alleged fraud and negligent misrepresentation. ¶ 13 In February 2016, Fi rst Mercury moved to dismiss all six counts of the counterclaim pursuant to section 2

- 615 of the Code of Civil Procedure (735 ILCS 5/2

- 615 (West 2016)) for
failure to state a cause of action. On July 26, 2016, the trial court granted the motion only with respect to counts II through VI but declined to dismiss count I for br each of contract

. ¶ 14 In March 2017, First Mercury and Ciolino filed cross- motions for summary ju dgment.
Ci olino’ s motion urged that it was entitled to coverage under Coverage B, emphasizing that the policy applied to personal injury cause d by “ an offense ” if “ committed ” in the policy period.
Cioli no claimed that coverage applied “ when the offense was completed ” and that the malicious prosecution alleged by Simon was not completed until his 2014 exoneration. ¶ 15 In its motion for summary judgment, First Mercury argued tha t the relevant question was
whether the “ trigger of coverage ” for an underlying malicious prosecution claim wa s the date on
which the underlying prosecution comm enced or the date of the exoneration

. First Mercury contended that multiple a ppellate c ourt decision s held that the commencement of the prosecution
is the tr iggering event

. First Mercury argued that becau se the alleged malicious prosecution against Simon commenced in 1999

— before First Mercury issued any policy to Ciolino

— it did not owe coverag e and did not breach the 2014

- 15 policy by refusing to defend the Si mon action

.

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Thus, First Mercury sought summary judgment in its favor with respect to both its declaratory judgment co mplaint as well as the remaining breach of contract count of Ciolino’ s counterclaim. ¶ 16 The cross

- motions were argued at a hearing on June 1, 2017. On that date , the trial court entered an order that (1) granted First Mercury ’ s motion for summary judgment , (2) denied
Ciolino ’ s cross
- motion for summary judgment , and (3) dismissed the case with prejudice. On June 27, 2017, C ioli no filed a notice of appeal. ¶ 17 ANALYSIS ¶ 18 We note that we have jurisdiction pursuant to Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015) becau s e Ciolino filed a timely notice of appeal from the June 1, 2017 , final order. We also note that, to the extent Ciolino ’s brief does not address certain orders referenced in his notice of appeal, review of those orders has been forfeited

. 2 Thus, our review is limited to
Ciolino ’s challenges to (1 ) the trial court ’ s June 1, 2017 , order granting summary judgment to First Mercury and denying Ciolino ’s cross
- motio n and (2) the prior order of July 26, 2016 , dismissing counts II through VI of Ciolino’s counterclaim. ¶ 19 We turn to Cioli no’ s primary contention th at the trial court erred in granting summary judgment to First Mercury

. Ciolino asserts that First Mercury owed coverage for the underlying
Simon action under Coverage B of the 2014

- 15 policy , which applies to an “offense” that is committed during the policy period. ¶ 20 Ciolino does not dispute that the alleged conduc t leading to Simo n’ s conviction occurred
in the late 1990s

. Nonetheless, he contends that the 2014

- 15 policy affords coverage because the

“ offense ” of malicious prosecution was not completed until Simon ’ s exoneration in 2014.

2 The notice of appeal stated that Ciolino appealed from the June 1, 2017 , order “ and all adverse rulings therein, including the order of July 26, 2016 which struck the Appellant ’ s affirmative defenses ***, and the order of December 2, 2016, which denied Appellant ’ s motion to compel. ” As Ciolino ’ s brief does not mention the affirmative defenses or the motion to compel, he has forfeited review of the corresponding orders. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
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Emphasizing the use of the word “ offense ” in the policy , he reasons that coverage is triggered at the completion of all necessary elements for the tort of malicious prosecution under Illinois law.
Because the termination of the prosecution in the plaintiff ’ s favor is one of the elements of the tort (s ee Cult Awareness Network v. Church of Scientology International , 177 Ill. 2d 267 (1997)),
Ciolino claims that “ [e] xoneration is the last act necessary to trigger coverage

. ” He thus claims
that the underlying “offense” alleged by Simon wa s not completed until his exoneration in 2014, within the 2014-15 policy’ s period of coverage. ¶ 21 Ciolino claims his interpretation of Coverage B is further support ed by the terminology
of other provisions of the 2014- 15 policy . H e emphasizes that the policy uses the term

“ occurrence ” in describing Coverage A and Coverage D

. He reasons that the use of the term

“ offense ” in Coverage B indicates that “ First Mercury made a distinction *** as to when
coverage wo uld be provided ” for the sort of injury included in Coverage B . Thus, he contends
that all legal elements of the “ offense ” must be completed within the policy period for that
coverage to apply. ¶ 22 In response, First Mercury argues that the relevant question is whether the trigger for
coverage of an underlying malicious prosecution claim is “ the date o n which t h e prosecution
commenced *** or the date on which the underlying plainti ff sub se quentl y was e xone rated

. ” First Mercury relies on a ppellate cou rt decisions holding that the triggering event is the
commencement of the pros ecu tion, rather than exoneration

. First Mercury argues that
exoneration is “ an act of remediation ” rather than part of the “ offense ” allegedly co mmitted by
Ciolino

. First Mercury thus maintains that the “ offense ” alleged by Simon predated the 2014-15 policy period, such that it does not owe coverage for the Simon action.

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¶ 23 “ Summary judgment is appropriate ‘ if the pleadings, depositions, and admissions on file,
*** show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ’ [Citations.] ” Morrissey v. Arlington Park Racecourse,
LLC , 404 Ill. App. 3d 711, 724 (2010). Where parties to an insurance cover age declaratory judgment action submit cross -motions for summary judgment, the parties “ agree that no factual
issues exist and t hat the disposition of [the case] turn s only on our resolution of purely legal
issues . [Citation.] Accordingly, our review proce eds de novo. ” Founders Insurance Co. v.
Munoz , 237 Ill. 2d 424, 432 (2010). ¶ 24 “To determine whether the insurer has a duty to defend the insured, the court must look to the allegations in the underlying complaint and compare these allegations to the relevant provisions of the insurance policy. [Citations.] If the facts alleged in the underlying complaint
fall within , or potentially within, the policy’s coverage, the insurer’s duty to defend arises. ” Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 107-08 (1992 ). To interpret insurance policies, o ur supreme court instructs :

“ Our primary function is to ascertain and give effect to the intention of the parties, as expressed in the policy language. [Citations.] If the language is unambiguous, the provision will be applied as written, unless it contravenes public policy

. [Citation s.] The rule that policy provisions limiting an insurer ’ s liability will be construed liberally in favor of coverage only applies where the provision is ambiguous

. [Citations.] A policy provision is not
rende red ambiguous simp ly because the parties disagree as to its meaning. [Ci tation.] Rather, an ambiguity will be found wher e th e

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policy language is susceptible to more than one reasonable interpretati on. [Citations.] ” Founders , 237 Ill. 2d at 433.

“ If the words in the pol ic y are unambiguous, a cour t must afford them their plain, ordinary, and popular meaning. ” (Emphasis in original.) Outboard Marine , 154 Ill. 2d at 108. ¶ 25 We thus face the issue of whether the Simon complaint allege s an “offense” of malicious prosecution that was “ committed ” during the 2014

- 15 policy period. The parties ’ dispute turns
on whether the term “ off ense ” is triggered by Ciolino ’s alleged conduct in commen cing the
malicious prosecution against Simon in 1999 or whether it necessarily includes the eventual
exoneration of Simon in 2014. ¶ 26 First Mercury ur ges that we rely on decisions of our court in other insurance coverage
actions that have concluded that the trigger date for coverage was the commencement of the alleged malicious pro se cution , rather than the date of exoneration

. The first of these is St. Paul
Fire & Marine Ins urance Co. v. City of Zion , 2014 IL App (2d) 131312 ( Zion ). Similar to the facts of this case, t he plaintiff in the underlying action in that case was charged with murder
before the relevant policy p eriod , but he was exonerated within the policy period

. Id. ¶ 4. The relevant policy language covered “ ‘ damages for covere d injury’ ” that “ ‘happen[ed] while this agreement is in effect ’ ” and were “ ‘ caused by a wrongful act.’ ” Id. ¶ 12. The Zion court
reasoned that “ a malicious ly prosecuted criminal d efendant suffers injury and d am age immediately upon being prosecuted, ” such that the injury predate d the policy period. Id. ¶ 26.
That decision also rejected the suggestion that there was no injury until the tort of malicious prosecution was completed. Id. ¶ 27 ( “ Simply becau s e a cau s e of action for malicious prosecution does not accrue until the prosecution has been terminated does not mean that the injury does not occur until t he prosecution has been terminated.” ).

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¶ 27 Our court reached a similar result in Indian Harbor Ins urance Co. v. City of Waukegan , 2015 IL App (2d) 140293 ( Indian Harbor ). As in Zion , t he underlying plaintiff in Indian Harbor

was w rongfully convicted before the policy period but exonerated during the policy period . T he insured sought coverage fo r the subsequent malicious prosecution claim, under two policies covering “ ‘ dam ages resulting from a wrongful act(s) ’ ” arising out of law enforcement activities
that “ ‘ occur durin g the p ol ic y period. ’ ” Id. ¶ 4

. The insured argued that covera ge was “t rigge re d at the time of termination [of the prosecution] , b ecause that is the fina l element for the accrual of
the tort. ” Id. ¶ 14. The Indian Harbor court disagreed, finding that Zion was “ on point ” in concluding that “ the commencement of the alleged malicious prosecution ” triggered coverage.
Id. ¶ 17. The Indian Harbor court also rejected the claim that a “ wrongful act ” required a completed tort , finding “ the policies do not equate a wrongful act wit h a completed cause of
action.” Id. ¶ 31. ¶ 28 The Fourth District of our court applied the same reasoning in County of McLean v. States Self

- Insurers Risk Retention Group, Inc. , 2015 IL App ( 4th ) 140628 ( McLean ), where t he underlying plaintiff ’ s 1995 conviction was reversed and the p rosecution terminated in 2009. Id. ¶ 1. In response to the ensuing malicious prosecution claim , the McLean plaintiffs claimed they
were entitled to coverage under a 2008

- 09 policy for damages from “ ‘ personal injury ’ ” that
resulted from “ ‘ an occurrence during the policy period .’ ” Id. ¶ 16. The McLean court agreed
with the insurer that it did not owe coverage because the “ ‘ occurrence ’ ” of the alleged
“ ‘ personal injur y’ ” was each underlying plaintiff ’ s “ arrest and prosecution , not his
exoneration. ” Id. ¶ 4. McLean rejected the plaintiffs ’ argument that “ the malicious prosecution ‘took place’ when the Stat e dismissed the charges ” against him. Id. ¶ 32. The court explained:

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“ [P] laintiff s erroneously equate the ‘ personal injury ’ of ‘ malicious
p rosecut ion’ (as the policy uses those terms) with the common

- law
elements of the tort of malicious prosecution. Howe ver , the two are
not the same. *** Const r uing the te r ms as a whole, the policy clearly defines ‘ personal injury ’ as ‘ injury’ *** caused by *** malicious prosecution. ’ *** In othe r words, the event that triggers coverage is the actual injury suffered by the prosecuted party, not
the accrual of the tort of malicious prosecution. ” (Emphase s in original. ) Id. ¶ 33. ¶ 29 C iolino seeks to distinguish this precedent, pr imarily beca use the policies in those cases
did not use the term “o ffense

. ” H e argues that “ the only ‘offense’ would be a tort, only occurring
after exoneration. ” He claims that coverage for Simon ’ s action was triggered “ when the offense was completed ” in 2014, “ when the last necessary element

— exoneration —happened.” ¶ 30 We disagree

. Although we recognize that Coverage B uses the term “offense,” w e are not persuaded that this distinction compels us to depart from the reasoning of the precedent
discussed . S pecifically, we are not convinced that the policy’ s use of the word “ offense ” indicates the parties ’ intent that coverage would only be trigger ed upon fulfillment of all
elements of a tort claim under Illinois law. Rather, the more straightforward reading of this term indicates that coverage depends upon whether the insured ’s offensive conduct was committed during the policy period. W e emphasize our supreme court ’ s directive that “ [i] f the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. ” (Emphasis in original.) Outboard Marine , 154 Ill. 2d at 10 8. C iolino does not contend that the

term “ offense ” is ambiguous. Thus, a pplying the common and popular understanding of the

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word, we conclude that the policy refers to a wrongful act or conduct committed during the policy period, regardless of whether the elements of a tort have accrued

. 3 ¶ 31 Ciolino does not point to any other language in the 2014- 15 policy indicating any intent

to limit the meaning of “ offense ” by requiring the completion of tort law elements

. Thus, w e will

not as sum e that the policy incorporates tort law. See St. Paul Fire & Marine Ins urance Co. v. City of Waukegan , 2017 IL App (2d) 160381, ¶ 48 (“ [T] he time of occurrence in insurance law is
different from the time of accrua l in tort law. In insurance law, the time of occurrence is used to determine when the operative terms of the policy provide coverage. In tort law, the time of accrual is used to determine when the statute of limitations begins to run, a separate
considerat ion ***.”). ¶ 32 Further, adopting Ciolino’ s interpretation w ould distort the common, popular understanding of what is meant by an “offense.” It appears that Ciolino ’ s interpretation includes
exoneration. I t defies common sense to construe the exone ration of an innocent person as
“offensive” or wrongful conduct. See Indian Harbor , 2015 IL App (2d) 140293, ¶ 24 ( “ ‘the
favorab le termination of a malicious prosecution ma rks the “ beginning of the judicial system ’ s remediation ” of the wrong committed , not the commencement of the injury or damage. ’ [Citation s. ]”); McLean , 2015 IL App (4th) 140628, ¶ 34 ( “T o say that Beaman suffered his ‘injury’ when he was exonerated would be to i gn ore th e plain and ordinary meaning of the term ‘injury.’ ”).

3 The Merriam

- Webster dictionary indicates that term “offense” is primarily used to mean

“ something that outrages the moral or physical senses ” ; “ the act of attacking ” ; “ the act of displeasing or affronting” or “ a breach of a moral or social code. ” Offense, Merriam

- Webster Online Dictionary, https://www.merriam

- webster.com/dictionary/offense (last visited May 2, 2018)

. Only after those meanings does Merriam

- Webster recognize that one of the secondary definitions of “offense” is “ an infraction of law. ” Id.
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¶ 33 We also note that Ciolino does not cite any recent Illinois case law that departs from the reasoning of the discussed precedent

. The primary decision that he relies upon is a federal case
that precedes the precedent, American Safety Casualty Insurance Co. v. City of Waukega n , 678 F.3d 475 ( 7th Cir. 2012) ( American Safety ). That case was another malicious prosecution coverage dispute where the exoneration (but not the conviction) occurred during the relevant policy period. After noting that the “ claim for malicious prosecution accrued in 2002 with his
exoneration ” ( id. at 477 ), the Seventh Circuit concluded tha t the relevant “ occurrence ” took pla ce upon exoneration, thereby implicating coverage. In that case, t he Seventh Circuit cite d its prior decision in National Casualty Co. v. McFatridge , 604 F.3d 335 ( 7th Cir. 2010), which in
turn, relied on our court’ s 1978 decision in Security Mutual Casualty Co. v. Harbor Insurance
Co. , 65 Ill. App. 3d 198 (1978) rev ’d on other grounds , 77 Ill. 2d 446 (1979)

. 4 Security Mutual
stood for the rule that “ the relevant ‘ occurrence ’ for the purpose of determining insurance coverage is exoneration, the final element of the legal claim. ” American Safety , 678 F.3d at 478.
The Seventh Circuit emphasized that, as of 2012 , Security Mutual was the “ only Illinois appellate decision on the issue. ” Id. at 479. In turn, American Safety concluded that the
“ ‘ occurrence ’ ” under the relevant policy occurred upon exoneration, because “ the tort occurs when its last element comes into being. ” Id. ¶ 34 C iolino ’ s reliance on American Safety is unpersuasive, as that case represented the
Seventh Circuit ’ s prediction of Illinois la w based on the 1978 Security Mutual decision, which in
2012 was the only Illinois decision on point

. That is no l onger the case, in light of the more
recent decisions already discussed , two of which explicitly criticized Security Mutual

. See Indian
Harbor , 2015 IL App (2d) 140293, ¶¶ 15-16; Zion , 2014 IL App (2d) 131312, ¶ 18.

4 The Seventh Circuit explained that our 1978 decision in Security Mutual was reversed by our supreme court “ on the basis of an arbitration clause rather than any disagreement with the court ’ s resolution of the merits. ” Amer ican Safety , 678 F.3d at 478. 131-17-1532
¶ 35 Consistent with recent Illinois precedent, the coverage question is governed by the plain language of the policy rather than by the elements of the tort of malicious prosecution. We
conclude that the term “o ffense ” in Coverage B of the 2014

- 15 policy refers to the alleged wrongful conduct by the insured. Applied to the Simon complaint, the “ offense ” was the misconduct allegedly committed by Ciolino leading to Simon ’s 1999 plea and conviction, which clearly predated the 2014

- 15 policy. On the other hand, Simon ’ s 2014 exoneration was not part
of any “offense” committed by Ciolino, j ust as an exoneration cannot logically be considered part of an “injury” to the underlying plaintiff

. See Zion , 2014 IL App (2d) 131312, ¶ 23;
McLean , 2015 IL App ( 4th ) 140628, ¶ 34. ¶ 36 As the alleged “offense” did not occur during the 2014-15 policy period, First Mercury did not owe coverage for the Simon action and was entitled to summ ary judgment

. For the same reasons, Ciolino could not prove that First Mercury breached the 2014-15 policy by refusing to
defen d the Simon action, as alleged by count I of the counterclaim. Accordingly, we affirm the
trial court ’s order of June 1, 2017. ¶ 37 We turn to Ciolino ’s claims that the trial court erred in dismissing counts II through VI of his counterclaim, pursuant to section 2

- 615 of the Code of Civil Procedure. 735 ILCS 5/2 -615 (West 2016). Ciolino maintains that the dismissed counts adequately “ pleaded causes of action in reformation, promissory and equitable estoppel, negligent misrepresentation and fraud.” ¶ 38 “ A s ect ion 2

- 615 motion admits all well

- pleaded facts as true, and dismissal is proper when it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. [Citation.] In ruling on a section 2

- 615 motion, the complaint ’ s factual allegations are to be interpreted in the light most favorable to the plaintiff. [Citation.] We

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rev iew a dismissal under section 2 -615 de novo. [Citation.] ” Avon Hardware Co. v. Ace Hardware Corp. , 2013 IL App (1st) 130750, ¶ 14. ¶ 39 We first address the fraud count of the counterclaim (count V). “ To establish a claim for common law fraud, a plaintiff must allege: (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 w hom the statement was made led to that person ’ s injury. [Citations.] ” Hirsch v. Optima, Inc. , 397 Ill. App. 3d 102, 116 (2009). “ There is a high standard of specificity for pleading clai ms of fraud ” and “ [t] he pleading s must contain specific allegations
fr om which fraud is the necessary or probable inference, including what representations were made, when they were made, who made the representations, and to whom they we re made.” Id

. at 116-17.
“A party pleading fraud must allege fact s sufficient to establish that its reliance on the alleged misrepresentation s was justified. [Citation.] In determining whether reliance was justifiable, all of the facts that the plaintiff knew, as well as those facts the plaintiff could have learned through the exercise of ordinary prudence, are taken into account. [Citation.] ” Barille v. Sears Roebuck & Co. , 289 Ill. App. 3d 171, 176-77 (1997). ¶ 40 There are multiple problems with Ciolino ’ s fraud cla im. First, it does not describe the alleged misrepresentatio ns with sufficient specificity. Ciolino claims that at some point in 2006, he asked an unnamed agent of First Mercury “ if First Mercury ’ s policy would insure against claims of malicious prosecution that arose during the term of the policy ” and that he was assured
that “ the policy would insure against such claims. ” T hese allegations do not meet the heightened

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pleading standard for fraud, as they do not identity with specificity (1) the date when the
statement was made , (2) the ident ity of th e “ agent ” who made the statement , or (3) the location
or manner in which th e statement was made

. Further, the allegation merely refers to “ the policy ” but does not specify which p olicy or policies were being described

. ¶ 41 Furthermore, Ciolino does not plead f act s supporting just ifiable reliance on the misrepresentation. He essentially pleads that he was misinformed by First Mercury ’ s agent about
the terms of a policy that he entered into, yet he does not suggest that he was denied an opportunity to review the written terms of that policy. An individual is assumed to have read and
understood the terms of a contract that he has entered into. “ Illinois law on this question is long

standing and consistent. The supreme court held in Black v. Wabash, St. Louis & Pacific Ry. Co. , 111 Ill. 351, 358 (1884) , that a competent adult is charged with knowledge of and assent to a document the adult signs and that ignorance of its content does not avoid its effect. That principle has been consistently reiterated by the supreme co urt and by the appellate court. ” Steele

v. Provena Hospitals , 2013 IL App (3d) 110374, ¶ 121. O ur court has specifically recognized an
insured’s duty to read an insurance policy. Perelman v. Fisher , 298 Ill. App. 3d 1007, 1011 (1998) (“[W]hen an insured sues his or her insurer after failing to note a discrepancy between the policy issued and received and the policy requested or expected, the insured will be bound by the contract terms because he or she is under a duty to read the policy ***. ”) Accordingly, Ciolino

can not claim that he reasonably relied on statem ents by an unnamed agent describing the policy in asserting his belief that its coverage was any broader than its actual, written terms. ¶ 42 Ciolino does not allege reasonable reliance for an independent reason. The fraud claim
relies on a purport ed statement by First Mercury ’ s agent in 2006, but the only policy for which Ciolino seeks coverage is the 2014

- 15 policy. Ciolino could not have reasonably relied on a

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statement in 2006 to influence his understanding of the scope of the 2014

- 15 policy , issued several years later. Thus, the fraud count was properly dismissed. ¶ 43 The element of reliance also defeats the negligent misrepresentation claim in count VI, which is based on the same alleged misrepresentations as the fraud count. “ To state a cause of action for negligent misrepresentation, plaintiffs must allege: (1) a false statement of material fact; (2) d efendant ’ s carelessness or negligence in ascertaining the truth of the statement; (3) an intention to induce plaintiffs to act; (4) reasonable reliance on the truth of the statement by plaintiffs; and (5) damage to plaintiffs resulting from this reliance. [Citation .]” Phillips v. DePaul University , 2014 IL App ( 1st ) 122817, ¶ 87. T hus , negligent misrepresentation “ has essentially the same elements [as a fraud claim], except that the defendant need not know that the statement is false; rather his own carelessness or negligence in ascertaining the truth of the statement will suffice. [Citation.] ” Avon Hardware Co. , 2013 IL A pp (1st) 130750, ¶ 15. ¶ 44 As discussed with respect to the fraud count, Ciolino fails to plead reasonable reliance on the alleged false statements concerning the nature of coverage for malicious prosecution

. Without that element, the negligent misrepresentation count was d efective

. We thus affirm the
dismissal of count VI on that basis. ¶ 45 We next turn to count II, under which Ciolino seeks reformation of the 2014

- 15 policy so
that it provides coverage for the Simon action. That count is premised on purported “fraudulent misrepresentations ” contained in the various policies issued by First Mercury from 2006 to 2014,
which the countercl aim characterizes as “ written offers .” 5 Ciolino ’ s reformation count alleges
that “ First Mercury asserted that the legal effect of the [ policies] would provide insurance against
claims of malicious prosecution ” when it knew that this was not the “ legal effect ” of the policies.

5 The counterclaim does not attach exhibits but indicates that the “ written offers ” are exhibits B through I to First Mercury ’ s declaratory judgment complaint, which consist of the policies issued to Ciolino. 171-17-1532
Ciolino pleads that he “ did not realize that the legal effect of the insurance policies wa s not as
asserted. ” ¶ 46 “ An action for reformation is in essence an action to change a written agreement to conform the intention of the parties and the agreement between them. [Citation.] To state a cause of action for reformation of a contract, a plaintiff must allege: (1) the identity of the parties and the existence and substance of an agreement; (2) that the parties agreed to reduce their agr eement to writing; (3) the substance of the written agreement; (4) that a variance exists between the parties ’ original agreement and the writing; and (5) mutual mistake or some other basis for
reformation. [Citation.] ” Ringgold Capital IV, LLC v. Finley , 2013 IL App (1st) 121702, ¶ 31.

“ Reformation of a contract should be allowed only when clear and convincing evidence compels the conclusion that the instrument as it stands does not properly reflect the true intention of the parties and that there has been either a mutual mistake or a mistake by one party and fraud by the other. [Citation.] ” Elson v. State Farm Fire & Casualty Co. , 295 Ill. App. 3d 1, 15 (1998). ¶ 47 Ciolino ’ s reformation c ount does not allege any “mut ual mistake. ” Rather, it is premised on purported “ fraudulent misrepresentations ” contained within the various policies issued by First Mercury. However, Ciolino does not identify any actual mi srepresentation in those written policies. Rather , he merely pleads his own mistake in failing to “ rea lize ” the “ legal effect ” of the policies ’ terms

. Simply put, one party ’s failure to understand a contract term is not equivalent to a fraudulent misrepresentation by the other contracting party. As Ciolino does not plead an underly ing fraud or a mutual mistake , the reformation count fails

. Thus, count II was properly
dismissed. ¶ 48 We turn to count III of the counterclaim, alleging promissory estoppel. In that count, Ciolino alleges that First Mercury made “ an unambiguous promise that it would provide

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insurance coverage against c laims of malicious prosecution that arose during the poli cy period, ”
that Ciolino relied on such promise to his detriment, and that his reliance “ was expe c ted and
foreseeable. ” ¶ 49 To establish a claim of prom issory estoppel , “ the plaintiff must prove that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff ’ s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to it s detriment. [Citation.] ” Newton Tractor Sales, Inc. v. Kubota Tractor Corp. , 233 Ill. 2d 46, 51 (2009). This reliance element “ can alternatively be described as demonstrating plaint iff ’ s justifiable or re asona ble reliance on the promise, similar[ ] to the el ements requ ired in a claim for
fraud. ” Janda v. United States Cellular Corp. , 2011 IL App (1st) 103552 , ¶ 91. As discussed
above with respect to the fraud count , we do not find that Ciolino can plead reasonable reliance on alleged statements that the coverage was any broader than the written terms of the 2014 -15 policy. ¶ 50 Moreover, dismissal of the promissory es toppel count is independently warranted, since the existence of a contract (the 2014

- 15 policy) is undisputed . “ Application of promissory estoppel is proper only in the absence of an expre ss agreement. [Citations.] ” Matthews v. Chicago Transit Authority , 2016 IL 117638 , ¶ 92

. “ [O]nce it is established, eith er by an
admission of a party or by a judicial finding, that there is in fa c t an enforceable cont r act between
the parties and therefore consideration exi sts, then a par t y may no longe r re c over under the theory of promissory estoppel

. ” Prentice v. UDC Advisory Services, Inc. , 271 Ill. App. 3d 505, 512 (1995). C iolino has acknowledged in the trial court and on appeal that the 2014

- 15 policy
was an enforceable contract. Thus, count III was properly dismissed.

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¶ 51 Finally, we ad dress count IV of the counterclaim, which asserts equitable estoppel

. Similar to the other counts, t his count is premised on allegations that First Mercury

“ misrepresented that it would provide insurance coverage against claims of malicious prosecution that arose durin g the p o licy period ,” that First Mercury knew this was untrue, and
that Ciolin o “reasonably relied upon the representation in good faith to [his] detriment.” ¶ 52 The elements of equitable estoppel are: “ ‘(1) the other person misrepresented or concealed material facts; (2) the other person knew at the time he or she made the representations that they were untrue; (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; (4) the other person intended or reasonably expected that the party claiming estoppe l would act upon the representations; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof. ’ ” (Emphasis added.) Bayview Loan Servicing, LLC v. Szpara , 2015 IL App (2d) 140331, ¶ 36 (quoting Geddes v. Mill Creek Country Club , Inc. , 196 Ill. 2d 302, 313- 14 (2001) ). ¶ 53 As discussed with respec t to the fraud count, Ciolino c annot claim reasonable reliance on false representations describing the extent of coverage under First Mercury ’s policies, when he was under a duty to read those policies and “ inform the insurer of any discrepa ncy” between the policy issued and the policy he expected

. Perelman , 298 Ill. App. 3d at 1011. Thus, count IV was also properly dismissed. ¶ 54 For the foregoing reasons, we affirm (1) the entry of summary judgment in First Mercury ’ s favor with respect to its decla ra tory judgment complaint and count I of Ciolino ’ s

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counterclaim, as well as (2) the trial court ’s dismissal of the remaining counts of Ciolino ’ s counterclaim. ¶ 55 Affirmed.

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