UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CAMBRIDGE MUTUAL FIRE 

INSURANCE COMPANY, 

 

 Plaintiff, 

 

 v. 

TERRY L. GACA, and JANET L. 

WAYMAN, individually and as trustee of 

THE JANET L. WAYMAN TRUST, 

 

 Defendants. 

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 20 C 2447 

 

 

MEMORANDUM OPINION 

CHARLES P. KOCORAS, District Judge: 

Before the Court is Plaintiff Cambridge Mutual Fire Insurance Company’s 

(“Cambridge”) Motion for Summary Judgment under Federal Rule of Civil Procedure 

56. For the following reasons, the Court grants the Motion. 

BACKGROUND 

In resolving a motion for summary judgment, the Court views the evidence in 

the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986). The following facts are taken from the record and are 

undisputed unless otherwise noted. 

Cambridge brings this action seeking a declaratory judgment that it does not owe 

Defendants Terry Gaca and Janet Waymen (collectively, “Defendants”) a duty to 

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defend an underlying lawsuit under the terms of their insurance policy. Thomas J. 

Frederick1 brought the underlying lawsuit in Illinois state court, alleging Defendants 

maintained a boarding house and a parking facility for large trucks on their property 

(the “Underlying Suit”). The Underlying Suit alleges claims of public nuisance, 

conspiracy to create a public nuisance, and nine violations of City of Naperville 

(“Naperville”) zoning ordinances under the Adjoining Landowner Act, 65 ILCS 5/11-

13-15. Frederick seeks monetary damages and injunctive relief. 

Defendants’ policy with Cambridge includes Homeowner’s Liability Insurance 

and Personal Umbrella Liability Insurance (the “Policy”). As is relevant here, the 

Policy provides: 

If a claim is made or a suit is brought against an “insured” for damages 

because of “bodily injury” or “property damage” caused by an 

“occurrence” or “personal injury” caused by an offense to which this 

policy applies, we: 

 a. Will provide a defense at our expense by counsel of our choice, 

even if the suit is groundless, false or fraudulent. 

Dkt. # 38-1, p. 13. “‘Bodily injury’ means bodily harm, sickness or disease, including 

required care, loss of services and death that results.” Id. at 11. “‘Property damage’ 

means physical injury to, destruction of, or loss of use of tangible property.” Id. at 12. 

“‘Personal injury’ means injury arising out of . . . [t]he wrongful eviction from, 

wrongful entry into, or invasion of right of private occupancy of a room, dwelling or 

1

 Frederick was voluntarily dismissed as a defendant on August 11, 2020. Dkt. # 23. 

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premises that a person occupies, committed by or on behalf of its owner, landlord or 

lessor . . .” Id. Finally, “‘[o]currence’ means an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions, which results . 

. . in: ‘bodily injury’ or ‘property damage.’” Id. 

The Policy also contains several exclusions. Coverage does not apply to: 

1. “Bodily injury” or “property damage” which is expected or intended by 

an “insured” even if the resulting “bodily injury” or “property damage”: 

a. is of a different kind, quality or degree than initially expected or 

intended; or 

b. is sustained by a different person, entity, real or personal 

property, than initially expected or intended. . . . 

2. “Personal injury”: 

a. caused by or at the direction of an “insured” with the knowledge 

that the act would violate the rights of another and would inflict 

“personal injury”. . . . 

Id. at 14. 

Based on these events, Cambridge brings this action alleging the Underlying Suit 

does not involve “property damage,” “personal injury,” or an “occurrence” under the 

Policy. Cambridge now moves for summary judgment under Rule 56. 

LEGAL STANDARD 

 Summary judgment is proper “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

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a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 

(citation omitted). “A genuine dispute as to any material fact exists if the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Kvapil v. 

Chippewa Cnty., 752 F.3d 708, 712 (7th Cir. 2014) (cleaned up). 

 In deciding whether a dispute exists, the Court must “construe all facts and 

reasonable inferences in the light most favorable to the non-moving party.” Citizens 

for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1074 (7th Cir. 2016). The 

nonmovant “must go beyond the pleadings” to demonstrate that there is evidence “upon 

which a jury could properly proceed to find a verdict in [their] favor.” Modrowski v. 

Pigatto, 712 F.3d 1166, 1168–69 (7th Cir. 2013). “The existence of a mere scintilla of 

evidence, however, is insufficient to fulfill this requirement.” Wheeler v. Lawson, 539 

F.3d 629, 634 (7th Cir. 2008). And “[c]onclusory statements, not grounded in specific 

facts” cannot defeat a motion for summary judgment. Bordelon v. Bd. of Educ. of the 

City of Chi., 811 F.3d 984, 989 (7th Cir. 2016) (cleaned up). 

 Not all factual disputes will preclude the entry of summary judgment, only those 

that “could affect the outcome of the suit under governing law.” Outlaw v. Newkirk, 

259 F.3d 833, 837 (7th Cir. 2001) (citation omitted). In deciding a motion for summary 

judgment, the Court’s sole function is “to determine whether there is a genuine issue 

for trial.” Tolan v. Cotton, 572 U.S. 650, 657 (2014). The Court cannot weigh 

conflicting evidence, assess the credibility of witnesses, or determine the ultimate truth 

of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc., 477 

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U.S. 242, 255 (1986); Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704–

05 (7th Cir. 2011). 

 Local Rule 56.1 requires a party moving for summary judgment to submit a 

statement of material facts as to which the movant contends there is no genuine issue 

and entitles the movant to judgment as a matter of law. The party opposing the motion 

for summary judgment is then required to file “any opposing affidavits and other 

materials referred to in [Federal Rule of Civil Procedure 56(e)]” and a “concise 

response” to the movant’s statement of facts containing “any disagreement, specific 

references to the affidavits, parts of the record, and other supporting materials.” N.D. 

Ill. L.R. 56.1(b)(1), (3). 

DISCUSSION 

At the outset, we address some violations of the Local Rules governing motions 

for summary judgment. Defendants did not file a response to Cambridge’s Local Rule 

56.1 Statement of Material Facts. Cambridge, therefore, asks the Court to deem all its 

facts admitted. However, Cambridge did not comply with Local Rule 56.2, which 

requires parties moving for summary judgment against an unrepresented party to notify 

the unrepresented party of their obligations under Local Rule 56.1 and the potential 

ramifications for failing to comply with Local Rule 56.1. See N.D. Ill. L.R. 56.2. 

Cambridge also violated Local Rule 56.1 by not attaching the cited evidentiary material 

in its Statement of Material Facts. See N.D. Ill. L.R. 56.1(d)(3) (requiring evidentiary 

material to be attached to the statement of facts as numbered exhibits). A review of the 

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record, however, reveals there is no factual dispute, as our review is limited to the 

Underlying Suit’s complaint and the Policy. 

Moving to the merits of the Motion, the parties agree Illinois law applies. In 

Illinois, the construction of an insurance policy is a question of law. Country Mut. Ins. 

Co. v. Livorsi Marine, Inc., 222 Ill. 2d 303, 311 (2006). An insurance policy is to be 

construed as a whole and requires the court to ascertain and give effect to the true 

intentions of the contracting parties. First Ins. Funding Corp. v. Fed. Ins. Co., 284 F.3d 

799, 804 (7th Cir. 2002) (applying Illinois law). “If the words used in the policy are 

clear and unambiguous, they must be given their plain, ordinary, and popular meaning.” 

Cent. Ill. Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 153 (2004). However, “[a] policy 

provision is not rendered ambiguous simply because the parties disagree as to its 

meaning.” Founders Ins. Co. v. Munoz, 237 Ill.2 d 424, 433 (2010). 

It is well-settled that in deciding whether an insurer has a duty to defend an action 

against the insured, a reviewing court must compare the allegations of the underlying 

complaint to the relevant portions of the policy. Outboard Marine Corp. v. Liberty 

Mutual Ins. Co., 154 Ill. 2d 90, 108 (1992). If the underlying complaint alleges facts 

that fall “within or potentially within” the coverage of the policy, the insurer is obligated 

to defend its insured even if the allegations are “groundless, false, or fraudulent.” 

United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991) 

(emphasis in original). The underlying complaint need only set forth sufficient facts to 

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establish a policy-covered offense. OneBeacon Am. Ins. Co. v. City of Zion, 119 F. 

Supp. 3d 821, 833 (N.D. Ill. 2015) (Kocoras, J.). 

Also, the duty to defend arises “even if only one such theory is within the 

potential coverage of the policy.” Wilkin Insulation Co., 144 Ill. 2d at 73. An insurer 

may not justifiably refuse to defend an action against the insured “unless it is clear from 

the face of the underlying complaint[ ] that the allegations fail to state facts which bring 

the case within, or potentially within the policy’s coverage.” Id. (emphasis in original). 

The burden is on the insured to prove a claim falls within the coverage of the policy. 

Axiom Ins. Managers, LLC v. Capitol Specialty Ins. Corp., 876 F. Supp. 2d 1005, 1008 

(N.D.Ill.2012) (citing cases). 

Cambridge asserts the Underlying Complaint does not allege an “occurrence” or 

“personal injury” as those terms are defined by the Policy.2 We address each term in 

turn. 

First, an “occurrence” is “an accident, including continuous or repeated exposure 

to substantially the same general harmful conditions.” Dkt. # 38-1, p. 12. Cambridge 

specifically argues there is no “accident.” Illinois courts have defined “accident” for 

the purpose of insurance coverage disputes as “an unforeseen occurrence, usually an 

undesigned sudden or unexpected event of an inflictive or unfortunate character.” W. 

Am. Ins. Co. v. Mw. Open MRI, Inc., 2013 IL App (1st) 121034, ¶ 22 (cleaned up). The 

2

 Cambridge also asserts the complaint in the Underlying Suit does not allege “property damage” as defined 

by the Policy. Because Defendants argue the Underlying Suit “alleges uniquely bodily injury, not damage 

to property” we do not address Cambridge’s argument about property damage. Dkt. # 96, p. 2. 

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relevant inquiry is “whether the injury is expected or intended by the insured, not 

whether the acts were performed intentionally.” Id. (emphasis in original). So, we ask 

“whether the person performing the acts leading to the result intended or expected the 

result. If the actor intended or expected the result, the event was no accident.” State 

Farm Fire & Cas. Co. v. Young, 2012 IL App (1st) 103736, ¶ 26 (internal citation 

omitted). 

In Midwest Open, the insurance company sought a declaratory judgment that it 

did not have a duty to defend a company that provided magnetic resonance imaging 

(MRI) services after it was sued by a competitor. 2013 IL App (1st) 121034, ¶¶ 1–2. 

The competitor alleged the defendants violated the Illinois Consumer Fraud and 

Deceptive Business Practices Act by engaged in a price fixing scheme to put 

competitors out of business. Id. at ¶¶ 23–24. The Illinois Appellate Court found the 

underlying complaint established defendants intended to put their competitors out of 

business, and therefore the underlying complaint did not allege an “occurrence” under 

the insurance policy. Id. at ¶ 24. 

Here, the complaint in the Underlying Suit asserts public nuisance, conspiracy to 

create public nuisance, and violations of Naperville ordinances The complaint alleges 

Defendants intentionally conspired to violate the public’s rights and avoid enforcement 

of Naperville’s ordinances. Further, the complaint establishes Defendants knew their 

use of the property as a boarding house and truck lot violated Naperville ordinances, 

and even sued Naperville to challenge the legality of the ordinances. Thus, like in 

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Midwest Open, the complaint in the Underlying Suit establishes the injuries were 

intentional, not accidental. Therefore, there was no “occurrence” as that term is defined 

in the Policy.3

Next, a “personal injury” is an “injury arising out of . . . [t]he wrongful eviction 

from, wrongful entry into, or invasion of right of private occupancy of a room, dwelling 

or premises that a person occupies, committed by or on behalf of its owner, landlord or 

lessor . . . .” Dkt. # 38-1, p. 12. This phrase “quite plainly requires the invasion to be 

committed by the owner.” Admiral Indem. Co. v. 899 Plymouth Ct. Condo. Ass’n 

D&KK Real Est. Serv. Corp., 2017 WL 345559, at *7 (N.D. Ill. 2017) (Kennelly, J.). 

Thus, Defendants must be the “owner, landlord, or lessor” of the “room, dwelling or 

premises” where the alleged invasion occurred. See id. Because Frederick is the owner 

ofthe property that was “invaded,” there is no “personal injury” alleged in the 

Underlying Suit. See id. 

Defendants’ reliance on Avery v. GRI Fox Run, LLC, 2020 IL App (2d) 190382, 

is inapposite. There, the Illinois Appellate Court determined nuisance allegations were 

personal injuries and therefore not barred by the Illinois Supreme Court’s decision in 

Moorman Manufacturing Company v. National Tank Company, 91 Ill. 2d 69 (1982) 

(the “Moorman doctrine”). Avery, 2020 IL App (2d) 190382, ¶ 64. The Moorman 

doctrine precludes recovery for pure economic losses in a tort action. Id. at ¶ 55. Avery, 

3

 Even if the Policy provided coverage for the Underlying Suit, coverage would be excluded under the 

Policy’s exclusions for these same reasons. 

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though, did not involve an insurance policy or an insurance coverage dispute. Here, by 

contrast, the question is whether the allegations in the Underlying Suit involve personal 

injuries as defined by the Policy, not whether it generally alleges a personal injury. 

Thus, the Underlying Action does not allege a “personal injury,” as that term is defined 

by the Policy. 

Defendants raise several defenses: Cambridge did not satisfy a condition 

precedent under the Illinois Insurance Code prior to filing suit and Cambridge is 

estopped from denying coverage. We address each in turn. 

Defendants first argue Cambridge’s claims fail because it did not respond to their 

“inquiry of loss” within 21 days. Defendants point to Section 143d of the Illinois 

Insurance Code, which requires insurance companies to establish a customer affairs and 

information department and respond to written inquiries and complaints within 21 days. 

215 ILCS 5/143d. Cambridge denied Defendants’ claim after 26 days, so Defendants 

say Cambridge failed to follow the terms of Section 143d. 

The guiding rule of statutory construction is to determine and give effect to the 

legislature’s intent. JP Morgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 

461 (2010). If the language of the statute is unambiguous, the inquiry ends. Preston v. 

Midland Credit Mgmt., Inc., 948 F.3d 772, 780 (2020). “The terms in a statute are not 

to be considered in a vacuum,” so “the words and phrases . . . must be construed in light 

of the statute as a whole, with each provision construed in connection with every other 

section.” Corbett v Cnty. of Lake, 2017 IL 121536, ¶ 27 (cleaned up). Additionally, 

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the statute must be read so that no term is rendered superfluous or meaningless. JP 

Morgan, 238 Ill. 2d at 461. 

Section 143d by its terms applies only to inquiries and complaints, not to claims. 

An “inquiry” is a “request for information.” Inquiry, Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/inquiry (last visited April 19, 2022). 

And a “complaint” is “an expression of grief, pain, or dissatisfaction.” Complaint,

Merriam-Webster, https://www.merriam-webster.com/dictionary/complaint (last 

visited April 19, 2022). But a claim is “[a] policyholder’s formal report to an insurance 

company about a loss with a request for a payment based on the insurance policy’s 

terms.” Claim, BLACK’S LAW DICTIONARY (11th ed. 2019). So, the purpose of Section 

143d is for insurance companies to establish a department to answer questions and 

respond to dissatisfied customers within 21 days. But it is not the job of that department 

to determine whether a loss is covered by a policy. Thus, the 21-day requirement 

applies only to issues handled by an insurance company’s customer affairs and 

information department under Section 143d. 

The conclusion that Section 143d does not apply to claims is supported by 

looking at other provisions of the Insurance Code. The Insurance Code requires 

insurance companies to settle claims within a reasonable time. See, e.g., 215 ILCS 

5/154.6; 215 ILCS 5/155. Section 154.6 makes it an improper claims practice to, among 

other things, fail “to affirm or deny coverage of claims within a reasonable time after 

proof of loss statements have been completed.” 215 ILCS 5/154.6(i). Similarly, 

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Section 155 allows an insured to recover attorney fees in an action against an insurance 

company “for an unreasonable delay in settling a claim.” 215 ILCS 5/155. Therefore, 

finding Section 143d requires insurance companies to settle claims within 21 days 

would effectively abrogate the language in these sections and the case law interpreting 

them. 

So what Defendants attempt to classify as an “inquiry” is unquestionably a claim: 

Gaca wrote to Cambridge’s agent, Joe Snyder, regarding the Underlying Suit, asserted 

the Underlying Suit presented a personal injury as defined by the Policy, requested 

coverage under the Policy, and stated “it is imperative Insured’s Claim be submitted to 

Cambridge Mutual posthaste.” Dkt. # 51, p. 16. Thus, Defendants’ communication 

was a claim and Section 143d does not apply. 

Defendants next raise three estoppel arguments. First, Defendants say 

Cambridge reserved $44,480.11 for their claim, which Defendants maintain is evidence 

Cambridge believed the claim was covered. Thus, Defendants argue Cambridge must 

be equitably estopped from denying coverage. 

To establish equitable estoppel under Illinois law, Defendants must show: 

(1) [Cambridge] misrepresented or concealed material facts; (2) 

[Cambridge] knew at the time [it] made the representations that they were 

untrue; (3) [Defendants] did not know that the representations were untrue 

when they were made and when they were acted upon; (4) [Cambridge] 

intended or reasonably expected that [Defendants] would act upon the 

representations; (5) [Defendants] reasonably relied upon the 

representations in good faith to [their] detriment; and (6) [Defendants] 

would be prejudiced by [their] reliance on the representations if 

[Cambridge] is permitted to deny the truth thereof. 

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Geddes v. Mill Creek Country Club, 196 Ill. 2d 302, 313–14 (2001) (citing Vaughn v. 

Speaker, 126 Ill. 2d 150, 162–63 (1988)). The purpose behind this doctrine “is that 

where a person by his or her statements and conduct leads a party to do something that 

the party would not have done but for such statements and conduct, that person will not 

be allowed to deny his or her words or acts to the damage of the other party.” Id. 

Here, Defendants fail to establish equitable estoppel. Defendants have not shown 

Cambridge misrepresented any material facts. The undisputed facts show Cambridge 

denied coverage at all times. It did not, for example, indicate to Defendants that it 

would provide a defense then suddenly change course and deny coverage. The loss run 

provided by Defendants does not show Cambridge ever indicated to Defendants the 

Underlying Suit was covered by the Policy. Nor do Defendants show they detrimentally 

relied on any misrepresentation by Cambridge. Accordingly, Defendants’ first estoppel 

argument fails. 

Second, Defendants say Cambridge is estopped from denying coverage because 

an insurance company cannot deny coverage and file a declaratory judgment suit. But 

this argument is unsupported by the facts and applicable law. In Illinois, it is true, as 

Defendants say, that an insurance company cannot simply deny coverage and refuse to 

defend or indemnify; it must defend under an express reservation of rights or file a 

declaratory judgment action. See Waste Mgmt., Inc. v. Int’l. Surplus Lines Ins. Co., 144 

Ill. 2d 178, 207–08 (1991). But Cambridge followed the required procedure; it denied 

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coverage and filed this declaratory judgment action. Moreover, the estoppel doctrine 

does not apply where the insurer has no duty to defend. Emps. Ins. of Wausau v. Ehlco 

Liquidating Tr., 186 Ill. 2d 127, 151 (1999). “In other words, the estoppel doctrine 

cannot create coverage where none existed in the first place.” Bartkowiak v. 

Underwriters at Lloyd’s, London, 2015 IL App (1st) 133549, ¶ 48. Because Cambridge 

followed Illinois law and does not have a duty to defend under the Policy, Defendants’ 

second estoppel argument fails. 

Third, Defendants argue Cambridge is estopped from denying coverage because 

it waited too long to file this action. The Underlying Suit was filed in August 2019, 

while this action was filed in March 2020. But we need not determine if this delay was 

unreasonable because, as with Defendants’ second estoppel argument, the doctrine does 

not apply if the insurer did not breach its duty to defend. See St. Paul Fire and Marine 

Ins. Co. v. Vill. of Franklin Park, 523 F.3d 754, 756 (7th Cir. 2008). Accordingly, 

Defendants’ third estoppel argument fails. 

CONCLUSION 

 For the reasons mentioned above, the Court grants Cambridge’s Motion for 

Summary Judgment (Dkt. # 95). Civil case terminated. It is so ordered. 

Dated: 05/17/22 

 ________________________________ 

 Charles P. Kocoras 

 United States District Judge 

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