## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Pekin Insu rance Co. v. Prec ision Dose, Inc. , 2012 IL App (2d) 110195

Appellate Court Caption PEKI N I NSURANCE COMPANY, Plaintiff-Appellee
, v. PREC I SI ON DO S E
, I NC., FRANK DARNEL L
, J AMES KL EI NHEI NZ
, ROBERT KOOPMAN, WARREN SWANSON, J AMES ARTHUR, and DAV I D Z OEL L NER, as Shareholde rs of Xac tdose, Inc., Def endants-A

ppellants.

District & N o. Second District Docke t No. 2-11-0195

Filed Rehea ring denied Marc h 16, 2012

May 31, 2012

Held (Note : Thi s syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the 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

. ) S u m m ar y judgme nt was proper ly enter ed for plaintiff insurer on it s complaint seeking a decla ratory judgme nt that it had no duty to defe nd its insur ed u nder a commerc ial g ener al liability policy in an underlying action for brea ch o f fi du ci ary duty that resulted in economic losses to plaintiffs, minority share holders of a company , when def endants, as majority share holders and direc tors of plaintiffs’ compa n y , formed and
operated another

company eng ag ed in the same business, since plaintiff insurer lacke d knowledg e of true but unple aded fac ts indicating that the claims wer e p o te nti a ll y c o v e r e d
, d e f e ndants brea ched the notice provision of the policy by failing to timely prese nt the insurer with fac ts conce rning the conduct at issue, if the amende d un d erly ing complaint had alleg ed that the new company “assumed opera tions” of the old company ’s business rathe r than its fac tory , the clai m might have been within the adver tising i n jury cover ag e, and the alleg ation that the new company assumed opera

tions of the ol d company ’s fac tory was not an alleg ation of wrong ful conduc t by

defe ndants.Dec ision Under

Review Appea l from the Circuit Court of W innebag o County
, No. 06-MR-514; the Hon. Eug ene G . Doher ty , J udg e, pre siding.

J udg ment Affir med.

Counsel on Appea l Marc C. Gravino, S cott C. Sulli van, and Adam B.E. L ied, all of Wil liamsMcCarthy

L L P, of Rockford, f

or appe llants.

Robert Marc Chemers, Dar ryl L

. Awick, and Richard M. Bur g land, all of Pretzel & Stouffe r, Chtrd., of Chicag o, for a ppellee.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustices McL are n and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Pekin I nsuranc e Company issued a commerc ial g ener al liability (CGL ) policy cover ing Xac tdose, I nc., a packa g er a nd distributor of single -dose units of liquid medication. While serving as direc tors of Xac tdose, Fr ank Dar nell, J ames Kl einheinz, and Robert Koopman (collec tively
, defe ndants) al l egedly formed and opera ted another company , defe ndant Precision Dose, I nc., which eng ag ed in the same ty pe of business. The policy was amende d
to name Precision Dose as an insured. Warren Swanson, J ames Arthur, and David Z oellner (collectively
, plaintiffs) wer e the minority share holders of Xac tdose. Plaintiffs filed an amende d complaint ag ain s t defe ndants, derivatively on behalf of Xac tdose, for brea ch of fiduciar y duty

. ¶ 2 Def

endants tender ed plainti f

f s ’ s u it to Pekin for defe nse and indemnity

. Pekin denied that the policy cover ed any of the claims in the underly ing suit, which eventua lly was dismiss ed. Pekin filed a decla

ratory judgme nt action in this ca s e, s ee k i n g a decla ration that it had no duty to defe nd. Pekin and defe ndants filed cross-motions for summary judgme nt, and Pekin additionally moved to strike the aff idavit of Koopman, the former president of Xac tdose and

curr ent president of Precision Dose. Pekin argued that the aff idavit contained fac ts of which Pekin was unawa

re when cover ag e was denied, and there fore the fac ts w ere not rele vant to whether the denial of

cover ag e wa s proper

. ¶ 3 The trial court struck the aff idavit and g rante d Pekin summary judgme nt, and def endants
appea l. Def

endants argue that the trial court err ed in striking the aff idavit and in deter

mining that Pekin did not owe defe ndants a duty to defe nd the under lying suit. First, we hold that,

even though “a circ uit c ourt may , under cer tain circ umstances, look beyond the underlying

-2-complaint in order to deter mine an insurer’ s duty to defe nd” ( Pek in Insurance Co. v. W

ilson
, 237 I ll. 2d 446, 459 (2010))
, the trial court did not err in striking Koopman’s aff idavit on the
g round that Pekin was unawa re of the contents of the aff idavit, which arguably would have shown that the claims asser ted ag ainst defe ndants wer e potentially within the cover ag e of the insurance policy ( cf. Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co.
, 401 I ll. App. 3d 83, 87 (2010) (“a n insurance ca rr i er may not ignor e unpleade d fac ts within its knowledg e, which it knows to be corr ect, and which, when taken t o get h er with the complaint’s alleg at ions, indicate that the claim asser ted ag ainst the putative insured is potentially within the cover ag e of the insuran ce p olicy ” (interna l quotation marks and emphasis omitted)). Second, we hold that the alleg ations in the amende d complaint wer e not potentially within the policy ’s cover ag e, and there fore Pekin is entitled to summary judgme nt. We affirm.

¶ 4 FACTS ¶ 5 A. The U nderly ing A mended Complaint ¶ 6 On Marc h 29, 2006, plaintiffs filed a complaint ag ainst Precision Dose and def endants. The four- count complaint asser ted claims for share holder relief and an acc ounting (see 805 I L CS 5/12.56 (West 2010)), common-law fra u d
, b re ach of fiduciar y duty
, and succe ssorcorpor ation liability

that resulted in ec onomic losses to plaintiffs. On November 15, 2006, plaintiffs filed an amende d complaint alleg ing brea ch of fiduciar y duty ag ainst defe ndants. The amende d complaint substitut ed Xac tdose for Precision Dose as a defe ndant and did not incorpora te the orig inal complaint by ref ere nce. ¶ 7 I n their reply brief, defe ndants sug g est that “s i n ce [ t h i s ] is a case involving both an orig inal complaint and an amende d complaint, the duty to defe nd issue is not nece ssarily an ‘all or nothing ’ proposition.” Acknowledg ing the possibili ty that plaintiffs’ ame ndment of the underlying complaint might have no bear i n g on Pekin’s duty to defe nd, defe ndants speculate t hat perhaps “the orig inal complaint that named Preci s i o n Do s e trig g ere d a duty
to defe nd for at least a period of time until the amende d complaint was filed,” at which point the chang e in the underlying claims m i gh t h av e exti ng uished Pekin’s duty to defe nd. Def endants offe r no analy sis as to how chang ing th e claims and naming Xac tdose and removing Precision Dose as a defe ndant in the underly ing suit mig ht ha

ve aff ecte d Pekin’s duty to defe nd. I n fac t, the parties do not specify whether the insureds tender ed the defe nse to Pekin before plaintiffs amende d their complaint. ¶ 8 The trial court conclude d that Pekin owed no duty to defe nd the orig inal complaint or the amende d complaint. We conclude that defe ndants have proce durally defa ulted any argument reg arding whether Pekin owed a duty to defe nd the orig inal complaint. See I ll. S. Ct. R. 341(h)( 7) (ef

f. Sept. 1, 2006) (“Points not argued are waived ***.”); s ee al s o Foxc roft Townhome Owners Ass’n v. Hoffman Rosner Cor p

. , 96 I ll. 2d 150, 154 (1983) (whe re an amendment is complete in itself and does not ref er to or adopt the prior pleading
, the ear lier pleading cea ses to b e p art of the rec ord for most purposes, being in eff ect abandone d and withdrawn)

. Acc ording ly
, we need addre ss only the amende d complaint, which alleg ed only claims of bre ach of

fiduciar y duty ag ainst defe ndants and named Xac tdose as a de fenda nt.

-3-¶ 9 The three -count amende d complaint alleg ed that defe ndants wer e majority share holders and serve d as three of the four direc tors of Xac tdose

. Plaintiffs wer e the minority share holders, with Arthur serving as the fourth direc tor. Def endants alleg edly “for

med an ‘allianc e’ and wer e essentially in cont ro l of the corpor ation.” On J une 24, 2003, a specia l Xac tdose share holders meeting was held to discuss Xac tdose’s financ ial state and its future. Z oellner was the only share holder who was not prese nt

. At t h e t ime of the meeting
, Xac tdose’s financ ial state had be en sig nificantly aff ecte d by the termination of its c ontrac t with A lpharma Pharmac euticals, a company in the business of developing , manufa cturing
, and marke ting g ener ic liquid pharma ceutica ls. The share holders discussed Xac tdose’s state of insolvency
, the lack of potential investors and profitable products, and the means by which Xac tdose should “wind down” its business and dissolve. Ba sed on discussions at the
meet i n g, t h e share holders who wer e prese nt resolved four- to-one to wind up Xac tdose’s business, sell its assets to defenda nts for $1.4 million, and dissol ve Xa ctdose. ¶ 10 Alleg edly unknown to plaintiffs, on April 9, 2 0 0 3
, d ef endants incorporated Prec ision Dose and beca

me its majority share holders, office rs, and direc tors. The amende d complaint alleg ed that “Prec ision Dose beg an assuming operations of the Xac tdose packa g ing fac tory ” and immediately beg an ear ning a profit by promoting Meg estrol, a new g ener ic liquid medication. Upon information and belief, plaintiffs alleg ed that Precision Dose sold units of Meg estrol ear

ning (1) a $1.8 milli on profit “in fisca l y ear 2003/2004,” (2) a $4.3 milli on profit in 2005, and (3) a proje cted $10 million profit in 2006. ¶ 11 Be sides the prec eding alleg ations co m m o n t o al l co u n t s , t h e am en d ed complaint contained three identical counts of brea ch of fiduciar y duty direc ted ag ainst defe ndants. The claims alleg ed that, at the J une 24, 2003, meeting
, defe ndants denied that there wer e any potential products un d er d evelopment that could have any positive financ ial impact on Xac t d o s e or on the share holders themselves. Specifica lly
, defe ndants failed to mention Meg estrol. For sever al months befor e the meeting
, defe ndants alleg edly had been eng ag ing in discussions with multipl e individuals about the future of the single -unit liquid medication packa g ing industry and their own futures persona lly

. Def endants discussed wi t h T om Ander son, the former Alpharma president, the possib i l i t y o f s etting up a partne rship with ANI Pharmac euticals so that Prec ision Dose and ANI could develop a nd marke t new unitdose products. Def

endants also held discussions with PAR L abs reg arding the development of Meg estrol, the potential future marke t for the pr oduct, and a future business partne rship between P re ci sion Dose and PAR L abs. Def endants neg otiated with ANI
, PAR L abs, and other pharma ceutica l companies and laboratories for the express purpose of d i v er t i ng potential fu t u re business opportunities from Xac tdose to Precision Dose. Def endants alleg edly never disclosed to plaintiffs that they wer e involved in discussio n s wi t h these companies or

that there was a

potential marke t for Meg estrol or a ny other produc t. ¶ 12 Fur

ther, defe ndants alleg edly had never acc ounted for the $1.4 milli on pay ment owed to Xac tdose or any of the other winding- up activities. Def endants had repr esente d to plaintiffs that they would appl y the purcha se price to Xac tdose’s corpor ate debts, which defe ndants had g uara nteed persona lly

. Howeve r, defe ndants alleg edly cre ated a windfall for themselves by neg otiating the debt downwar d, to perha ps as much as 80% off the orig inal amount, and
reta ining the r emainder

without disbursing the e ntire $1.4 million on behalf of Xa ctdose.

-4-¶ 13 The brea ch-of -fiducia ry -duty counts alleg ed that, as office rs, direc tors, and share holders of Xac tdose, defe ndants owed Xac tdose a duty of loy alty
, g ood faith, and honesty

. Howeve r, by misrepre senting and withholding information vital to plaintiffs and by diverting corpor ate opportunities for their own persona l b en ef it, defe ndants brea ched their fiduciar y duties to Xac tdose and its share holder s. Plaintiffs soug ht compensatory and punitive damag es, a constructiv e t ru st on any profits or income rea liz ed by defe ndants as a result of their “wr ong ful conduct,” an acc ounting of the sale of assets and other winding- up activities, and
costs.

¶ 14 B. D ecla ratory J udg ment Action ¶ 15 On J anuar

y 29, 2007, Pekin filed an amende d complaint for decla ratory judgme nt, se tt ing forth t h e fo l l o wing fac ts. Pekin issued a CGL policy
, No. 00CL 85805, to Xac tdose as the named insured. The poli cy was a mended on J une 30, 2003, to name Precision Dose as the named insured. Def

endants qualified as insureds under the policy by virtue of their roles as direc tors and share holders of Xac tdose. The policy was to be ef fe ct i ve from Fe bruar

y 27, 2003, throug h Fe bruar

y 27, 2004, bu t i t wa s canc elled on J anuar y 22, 2004. The policy provided in re levant par

t as follows:
“Covera g e B . Personal and A dvertising Injury L iability
1. Insuring Ag ree ment. a. W e will p ay t h o s e sum s that the i nsured becomes lega lly obligated t o pay as damag es beca

use of ‘per sonal injury ’ or ‘adve rtising injury ’ to which this insurance applies. We will have the rig ht and duty to defe nd any ‘suit’ seeking those damag es. We may at our discretion investigate any ‘occ urre nce’ or offe nse and settle any claim or ‘suit’ that may

result. B ut: (1) The amount we will pay for damag es is limit ed as descr ibed in L imits of I nsuranc e (Sec tion I I I ); and (2) Our rig ht an d duty to defe nd end when we have used up the applicable limit of insurance in the pay ment of judgme nts or settlements under Coverag e A or B or medica l expenses under Cover ag e C.
No other obligation or liability to pay sums or perf orm acts or service s is cover ed unless expli citly provided for under Supplementary Pay ments–Coverag es A and B. b. This insurance applies to: (1 ) ‘P ersona l injury ’ cause d by an offe nse arising out of y our business, excluding adver

tising, publishing, broadc asting
, or teleca sting done by y ou or for
y ou; and (2) ‘Adve rtising injury ’ cause d by an offe nse committed in the course of adver tising your g oods, products, or se rvice s; but only if the offe nse was committed in the ‘cove rag e territory ’ during t h e p o l i cy period.” ¶ 16 The policy

define s “adve rtising injury” and “ persona l injury” as f ollows:

-5-“Section V–De finitions
1

. ‘A d v ertisi ng injury ’ means injury arising out of one or more of the follo wi n g offe nses: * * * c. Misappropr iation of adve rtising idea s or style of doingbusiness; or
d. Infring ement of c opy

rig ht, titl e, or slog an. * * *
1 3

. ‘Persona l injury ’ means injury
, other than ‘bodily injury ’ arising out of o n e o r more of the following offe nses; * * *

c. The wrong ful eviction from, wrong ful entry into, or i n v as i o n o f the rig ht of private occupa

ncy of a room, dwelling
, or premises that a person occupie s by or on behalf of its owner, la

ndlord, or lessor.” ¶ 17 At some unspecifie d time afte r plaintiffs filed t h ei r ac tion, defe ndants tender ed their defe nse to Pekin, which ref used the tender

. Pekin then filed this decla ratory judgme nt action seekinga dec laration that it owed no duty to defe nd the under lying a ction. ¶ 18 Def

endants filed an answe r, aff irmative defe nse, and counter claim to Pekin’s amende d complaint for decla

ratory judgme nt. Def

endants’ counter claim alleg ed that Pekin had a duty
to defe nd ag ainst plaintiffs’ action bec au s e the underly ing complaint alleg ed “per sonal injury ” or “ adver

tising injury” that wa s cover ed under the policy

. ¶ 19 Pekin and def endants filed cross-motions for summary judgme nt, focusingon whether the alleg ations in the underlying complaint constituted “per s o n al injury ” or “adve rtising injury ” under the terms of the policy

. Specifica lly
, defe ndants argued that the alleg ation that they “assumed operations ” of Xac tdose constituted cover ed offe nses, including misappropriation of adver tising ideas or sty le of doing business and wrong ful invasion into the rig ht of private occupa ncy of the fac tory

. Def

endants also asser

ted that the alleg ation of misrepre senting and withholding information vital to plaintiffs constituted the cover ed offe nse of infr inge ment of copy rig ht, titl e, or slog an. ¶ 20 I n s u p p o rt of their motion for summary judgme nt, defe ndants relied on Koopman’s aff idavit for the proposition that Precision Dose used Xac tdose’s adver tising i d ea s and capitalized on Xac tdose’s g oodwill. Koopm an attested that Precision Dose assumed the
operations of Xac tdose on or around J une 2 4
, 2 0 0 3
, and rema ined in the business of packa g ing, marketing
, adver tising, and distributing s ingle -unit doses of liquid medication. In as s u m i n g those operations, Precision Dose took over Xac tdose’s marke ting and adver tisi n g m ethods
, manufa cturing
, g ener al operations, and sales and distributions

. Koopman stated that, like Xac tdose, Precision Dose tar g eted its marke ting a nd adver tising
towar d p h a

r ma ceutica l companies rathe r than the individual consumers of liquid medication. To his aff idavit Koopman attache d adver tising brochur es distributed by Xac tdose in Marc h 2003 and Precision Dose in J uly 2003 to show their simil arity

. Koopman attested that P re ci s i o n Dose essentially made the Xac tdose adver tisement its own by removing any ref ere nce to Xac tdose and repla cing it with Precision Dose, “e ssentially stepping into

-6-Xac tdose’s shoes.” Koopman stated that the orig inal brochur e idea ca m e from Xac tdose,

which Prec ision Dose assumed as pa rt of its purcha se of Xa ctdose’s a ssets in 2003. ¶ 21 Pekin moved to strike Koopman’s aff idavit on the g rounds that the fac ts set forth there in

wer e in the possession only of defe ndants and that defe ndants failed to show that Pekin knew of a simil arity in the marke ting and operations of Xac tdose and Precision Dose when Pekin denied c overa g e. ¶ 22 On Fe bruar

y 3, 2011, the trial court struck Koopman’s affi d av i t , d en i ed d efendants
summary judgme nt, and g rante d Pekin summary judgme nt. In a ni n e- pag e, single -spac ed opini o n , t h e court held that Pekin owed defe ndants no duty to defe nd the underly ing suit. This timely

appea l followed.

¶ 23 ANALYSI S ¶ 24 A. Sufficienc y of De fenda

nts’ Statement of F acts ¶ 25 I nitially
, we ad d re s s Pekin’s reque st that we ignor e defe ndants’ statement of fac ts as incomplete and fra

ug ht with misstatements. I llinois Supreme Court Rule 341(h)( 6) (ef f. J uly 1, 2008) require s that t h e s t atement of fac ts shall contain the fac ts nece ssary to an understanding of t he case, stated acc urate ly and fa irly , without argument or comment, and with appropriate re fer ence to the page s of t he record. Consider ing that an insurer ’s duty to defe nd turns on the words used in an underly ing complaint, we ag ree with Pekin that portions of defe ndants’ sta tement of fac ts para phrase the rec ord inacc urate ly

. Howeve r, with less
eg reg ious violations such as those here
, we simply disreg ard the offe nsive portions of the
statement of facts. See Zill er v. Rossi
, 395 I ll. App. 3d 130, 138 (2009). We remind defe ndants’ counsel that they are require d to fol l o w Rule 341(h)( 6), and we admonish counsel to comply

with the supreme c ourt rules in the futur e.

¶ 26 B. Standa rd of Revie w ¶ 27 Def

endants appea l from the trial court’s decisions to strike Koopman’s aff idavit a nd to
g rant Pekin summary judgme nt on the i s sue of whether Pekin owed defe ndants a duty to defe nd the share holder suit. The purpose of summary judgme nt is not to try a question of fac t but, rathe r, to deter

mine whether a g enuine issue of materia l fac t exis ts. Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 42-43 (2004). “When, as in this cas e, parties file crossmotions for summary judgme nt, they conce de the absenc e of a g enuine issue of materia l fac t and invite the court to decide the questions prese nted as a matter of law.” Steadfast Insurance Co. v. Caremark Rx

, Inc. , 359 I ll. App. 3d 749, 755 (2005). ¶ 28 Summary judgme nt is appropr iate wher e the pleadi n gs , af fi d av i t s , d ep ositions, and admissions on file, when viewe d in the light most favor able to the nonmoving party , show that t h ere is no g enuine issue of 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 2010); Klit zka v. Hellios
, 348 I ll. App. 3d 594, 597 (2004). The summ ary judgme nt proce dure is to be encoura g ed as an aid i n the expeditious dispositi on of a lawsuit. Adams
, 211 I ll. 2d at 43. Howeve r, s u m m ar y judgme nt is a drastic mea ns of disposing of

litigation and should not be g rante d unless the

-7-movant’s right to judgme nt is clea r and fre e from doubt. Forsythe v. Clark USA, In c. , 224 I ll. 2d 274, 280 (2007). ¶ 29 I n re v i ew ing a g rant of summary judgme nt, this court must construe the pleadin gs , depositions, admissions, and aff idavits strictly ag ainst the moving party and liberally in favor of the nonmoving party

. W illiams v. Manch es ter , 228 I ll. 2d 404, 417 (2008). Where

rea sonabl e persons could draw diverg ent infere nces from the undisputed materia l fac ts or wher e there i s a dispute as to a material fac t, summary judgme nt should be denied and the issue decide d by the trier of fac t. Espinoza v. Elgin, Joliet & Eastern Ry. Co.
, 165 I ll. 2d 107, 11 4 (1 9 9 5 ). I f a party moving for summary judgme nt introduces fac ts that, if not contra dicted, would entitle him to judg ment as a matter of law, the opposing party may not rely on his pleading s alone to raise issues of m ater ial fac t. Klit zka
, 3 4 8 I l l

. Ap p

. 3d at 597 (citing Herme s v. Fischer
, 226 I ll. App. 3d 820, 824 (1992))

. We revie w de novo an order
g ranting or denying summary judgm ent. See Millennium Park Joint Venture, LLC v. Houlihan , 241 I ll. 2d 281, 309 (2010). ¶ 30 “In a decla

ratory judgme nt action such as that prese nted here
, wher e the issue is whether the insurer has a duty to defe nd, a court ordinarily looks first to the alleg ation s in the underlying complaint and compar es those allegat i o n s to the rele vant provisions of the insurance p o l i cy .” Pek

in Insurance Co. v. W

ilson
, 237 I ll. 2d 446, 455 (2010). I f the fac ts alleg ed in the underlying complaint fall within, or potentially within, the policy ’s cover ag e, the insurer ’s duty

to defe nd arises. W

ilson , 237 I ll. 2d at 455. ¶ 31 A court’s primary objective i n co n s t ru i n g t h e l an guag e of an insurance policy is to

asce rtai n an d g ive effec t to the i ntentions of t he parties as ex presse d in their agr eeme nt. I f
t h e p o l i cy terms are clea r and unambig uous, they must be g iven their plain and ordinar y meaning ; but if the terms are s u s ce p tible to more than one meaning
, they are considere d ambig uous and will be construed strictly ag ainst the insurer that draf ted the policy

. W

ilson
, 237 I ll. 2d at 455-56. Provisions that limit or exclude cover ag e will be interpre ted liberally in f avor of the insured a

nd ag ainst the insurer. A court must c onstrue the policy as a whole and take into a ccount the ty pe of insurance purcha sed, the nature of the risks involved, and the over all purpose of

the contra ct. W

ilson , 237 I ll. 2d at 456. The insure r’s duty to defe nd its insured is broade r than its duty to indemnify ( W ilson
, 237 I ll. 2d at 456), and there fore the insurer may be obliga

ted to defe nd ag ainst cause s of action and theories of rec overy that are not in fac t cover ed by the policy and ag ains t al l egations that are g roundless, false, or fra udulent ( Uhlich Children’s Advantage Network v. National Union Fire Co. of Pittsburgh
, 398 I ll. App. 3d 710, 716 (2010)).

¶ 32 C. Koopman’s Aff idavit ¶ 33 Be fore g ranting Pekin summary judgme nt, the trial court struck Koopman’s aff idavit, a rulin g t h at defe ndants claim was err oneous. The sufficie ncy of an aff idavit in support of a motion for summary judgme nt is deter mined under I llinois Supreme Court Rule 191(a) (ef f. J uly 1, 2002). Rule 191(a) provides that aff idavits in support of or in opposition to a motion for summary judgme nt must be made on the persona l knowledg e of the aff iant and must not consi s t o f co n clusions, but fac ts admissible in evidenc e, and must aff irmatively show that

-8-t h e aff iant could testify competently there to. I ll. S. Ct. R. 191(a) (ef f. J uly 1, 2 0 0 2 ). Ordinar ily
, the decision to strike a Ru l e 1 9 1 af fi d avit is within the s ound discretion of the trial court. American Servic e Insurance Co. v. China Oce an Shipping Co. ( Americas)

, Inc.
, 4 0 2 I ll. App. 3d 513, 524 (2010). However
, in this case , the t rial court struck the aff id av i t

on the g round that defe ndants had fa iled to timely inform Pekin of the aff idavit’s contents, and there fore Koopman’s asser tions had no bear ing on whether Pekin corr ectly denied

cover ag e when defe ndants tender ed the defe nse. We ag ree with the par ties that, in this unusual proce dural context, the court’s decision to strike the aff idavit prese nts a question of law that we revie w de novo

. ¶ 34 P ek i n d o es n o t s eriously dispute that Koopman’s aff idavit set forth fac ts that would trig g er a duty to defe nd the underly ing suit. Specifica lly
, Koopman at tested that Precision Dose derive d its adver

tisi n g materia ls from Xac tdose’s brochur e, which arguably was a misappropriation of a dvertising ideas or sty le of doing business as well as infring ement of
copy rig ht, title, or s l o gan

. Howeve r, we conclude that the trial court corr ectly struck Koopman’s aff

idavit on the g round that Pekin was not awa re of those fac ts when it declined
to defe nd the suit. W h i l e an ear lier disclosure of the contents of the aff idavit might have trig g ere d a duty to defe nd, it appea rs that defe ndants waited to notify Pekin of the details of Koopman’s conduct until afte r the time for prese nting a defe nse had passed. Def endants did
not disclose Koopman’s aff idavit until the p ar t i es had filed cross-motions for summary judgme nt in the declar atory judgme nt action.

¶ 35 1. “Eig ht Corners” Rule a nd Ex ceptions ¶ 36 Ou r s u p re m e court has long held that an insurer’ s duty to defe nd an action brought
ag ainst the insured is “ ‘dete rmined solely by ref ere nce to the alleg ations of the complaint.’ ” (Emphasis omitted.) W

ilson
, 237 I ll. 2d at 457-58 (quoting Zurich Insurance Co. v. Raymark Industries, Inc.
, 118 I ll. 2d 23, 52 (1987))

. I llinois adher es to an “eight corne rs ” an al y s is when determining a carrie r’s duty to defe nd, wher e the court compar es t he four corne rs of the underlying complaint with the four corne rs of the insurance policy to deter mine whether fac ts alleg ed in the underly ing complaint fall within or potentially within cover ag e

. Konstant Products, Inc. v . Liberty Mutual Fire InsuranceCo. , 401 I ll. App. 3d 83, 86 (2010). ¶ 37 Howeve r, the supreme court rec ently pointed out t h at t h i s i s o nly a “g ener al rule” to which there can be exceptions. W ilson
, 237 I ll. 2d at 458. The court noted that, in American Economy Insurance Co. v. Holabird & Root
, 382 I l l

. Ap p

. 3 d 1017 (2008), the appellate
court considere d the alleg ations of the complaint, the third-par ty complaint, and the rele vant languag e of the insurance policy in deter mining that the insurer owed a duty to defe nd. W ilson
, 237 I ll. 2d at 460. The supreme court quoted with appro v al t h e fo l lowing from Holabird & Root : “ ‘[C] onsideration of a third-par ty complaint in deter

mining a duty to defe nd is in line with the g ener al rule that a trial court may consider evidenc e beyond t h e u n d er l ying complaint if in doin g s o t h e t rial court does not deter mine an issue critica l to the underlying action [ ci tation]

. The trial court should be able to consider all the r elev ant facts contained in the pleadings, including a thir d -party complaint, to determine whether

-9-there is a duty to defend. After all, the trial court need not wea r judicial blinders and may look beyond the complaint at other evidenc e app ropriate to a motion for summary judgme nt. [C itations.] ’ (Emphasis added.) ” (Interna l quotation marks omitted.) W ilson
, 237 I ll. 2d at 460-61 (quoting Holabird &Root , 382 I ll. App. 3d at 1031-32). ¶ 38 The W

ilson court also quoted with approva l Fidelity & Casualty Co. o f N ew Y o rk v. Envirodyne Engineers, Inc.
, 122 I ll. App. 3d 301, 304-05 (1983), in which the appellate court aff irmed a decla

ratory judgme nt in favor of an insurance company on the g round that the trial
court cou l d look beyond the underlying complaint in deter mining the duty to defe nd. The court in EnvirodyneEngineers, Inc

. stated the rationale for its holding as follows: “[W ]e f ind no support for Envirody ne’s c ontention that the court may not look beyond
t h e u nderlying complaint even in a declara tory proce eding wher e the duty to defe nd i s at i s s u e. I t is cer

tainly true that the duty to defe nd flows in the first instance from t h e alleg ations in the underlying complaint; t h i s i s t h e conce rn at the initial stag e of the
proce eding s when an insurance company encounte rs the primary decision of whether to d ef en d i t s insured. Howeve r, if an insurer opts to file a decla ratory proce eding
, we believe that it may proper ly challeng e the exis tence of such a duty by offe ring evidenc e to prove that the insured’s actions fell within the limit ations of o ne of the policy ’s exclusions. [C itations.] The only time such evidenc e should not be permitted is when it tends to deter

mine an issue cruc ial to the deter mination of th e underly

ing lawsuit [citations] ***. I f a cruc ial issue will not be deter mined, we see no rea son why the party seekinga dec laration of rig hts should not ha ve the pre rog ative to pre sent evidenc e that is acc orded g ener ally to a party during a motion for summary judgme nt in a decla ratory proce eding

. To require the trial court to look s olely to the complaint in the underlying action to determine cover age would make the declaratory procee ding littl e more than

a useless exe rcise possessing no attendant benefit and would greatly diminish a declaratory action’s purpose of settling andfixing the rights of the parties. ” (Emphasis added.) EnvirodyneEngineers, Inc

. , 122 I ll. App. 3d at 304-05. ¶ 39 Thus, on a motion for summ ar y j u d gm en t i n a decla ratory judgme nt action, whe n deter mining whether a duty to defe nd exis ts, the court is not limit ed t o co m p aring the insurance pol i cy to the alleg ations of the complaint but may consider evidenc e usually considere d in ruling on a motion for summary judgme nt, so long as such evidenc e does not tend to deter

mine an issue critica l to the deter mination of the underly

ing lawsuit. See W

ilson
, 237 I ll. 2d at 462.

¶ 40 2. True- But-Unpleade d-F acts Doc trine ¶ 41 Citi ng W

ilson and case s like it, defe ndants argue that the trial court err oneously reje cted Koopman’s aff

idavit when deter

mining whether Pekin owed a duty to defe nd. We disag ree

. The trial court corr ectly observe d that “it is important to note that the rule in [ W ilson ] not be
overstate d; it is not a requireme nt to consider any materia l outside the underly ing pleading s; it simply permits it.” (Emphase s in orig inal.) Be fore W ilson was decide d, the appellate court had occa sionally considere d the more difficult question of which extraneous materia ls may be considere d and when. Nothing in W ilson sug g ests that these case s are no longe r g ood law.

-10-¶ 42 I n Shriver Insuranc e Age ncy v . Utica Mutual Insurance Co.
, 323 I ll. App. 3d 243, 251

(200 1 ), S h river I nsuranc e Age ncy (Shriver) filed a decla ratory judgme nt action aga inst its insurer, Utica Mutual I nsuranc e Company (Utica ), afte r Utica declined to defe nd Shriver in

an underlying lawsuit. Utica moved to dismiss Shriver’s compl aint in light of a policy

ex cl u s i o n, and, as in this case , the parties eventua lly filed opposing motions for summ ar y judgme nt. Shriver attac hed an a ffidavit fr om its president as well as his le tter sent to Utica informing it of the underlying action and the fac ts le ading up to the lawsuit. The trial court g rante d Shriver’s motion for summary judgme nt a nd found that Utica had a duty to de fend Shriver beca

use the letter constituted true but unpleade d fac ts known to Utica. Shriver
, 323 I ll. App. 3d at 246-47. ¶ 43 On appea l, the Shriver court reit er at ed t h e t ru e- b u t -unpl eade d-fa cts doctrine: “ [a] n insurer must d ef

en d o n l y if the complaint alleg es fac ts within or potentially within the

cover ag e of the pol icy
, unless the i nsurer possesses knowledge o f t rue but unpleade d fac ts that, when taken toge ther with the alleg ations in the compl ai n t , i n d i cate that the claim is within or potentially within the policy cover ag e.” (Emphasis added.) Shriver
, 323 I ll. App. 3d at 247. The court deter mined that the complaint in the underly ing action alleg ed the ty

pe of risk that Utica intended t o ex cl u de from cover ag e. Shriver
, 323 I ll. App. 3d at 249. Additionally
, the court stated that it did not believe that the true-but- unpleade d-fa cts doctrine “wa s m ea n t t o b e applied to situations such as exis ted in this case , i.e.
, wher e the only
extraneous fac ts the insurer possessed we re supplied by the insured. In such a situation the insurer has no way of knowing whether the fac ts are true unless it conducts an independe nt investigation.” Shriver
, 323 I ll. App. 3d at 2 5 1

. “T y p i ca l ly
, in case s wher e the ‘true but unpleade d fac ts’ doctrine has been applied to show that an insurer had the duty to defe nd, the

ex t rane ous fac ts possessed by the insurer and known to be true wer e fac ts the insu re r discovere d during its own investigation of the underly ing action.” Shriver
, 323 I ll. App. 3d at 251. To illustrate that the sourc e of “true but unple aded fac ts” is of ten the insurer ’s own investigation, the Shriver court mentioned La Rotunda v. Royal Globe Insurance Co.
, 87 I ll. App. 3d 446 (1980), and Associated Indemnity Co. v. Insurance Co. of North America , 68 I ll. App. 3d 807 (1979):
“In [ La Rotunda ], the court deter mined that Roy al Globe had a duty to defe nd wher e the results of its own i n v estig ation disclosed the true but unpleade d fac t that all of the land in question was not used as a junky ard or ref use dump. There fore
, smoke from the land, which cause d a driving acc ident on a neig hboring road, might have come from the

vaca nt part of the land and not the junky ard, making the b u s i n es s exclusion in Roy al Globe’s policy

inapplicable.
I n [ Associated Indem nity ], the insurer, Insuranc e Company of North Americ a (I NA), knew that unpleade d fac ts related to it by Associated Indemnity wer e true. I NA possessed

a file containing documents produce d in the underly ing litigation that verifie d the truth of Associated I ndemnity ’s fac ts. Also, I NA knew the fac ts to be true beca u s e i t was defe nding another party in the underly ing action.” Sh r i ve r , 3 2 3 I ll. App. 3d at 251-52 (citing La Rotunda
, 87 I ll. App. 3d at 452, and Associated Indem nity
, 68 I ll. App. 3d at 818-19). ¶ 44 Shriver teac hes that unpleade d fac ts that the insured g ives the insurer should be viewe d

-11-with suspicion when deter mining the duty to defe nd, beca use the i n s u re r has no way of knowing whether the fac ts are true withou t co nducting its own investigation or otherwise verify ing the information independe ntly

. In this case , the parties have not direc ted us to any part of the rec ord showing that Pekin investigated Koopman’s alleg ations or was made awa re of their truthfulness in some other way

. In fac t, the rec ord sug g es t s t h at Pekin denied

cover ag e without any awa rene ss of the events contained in K oopman’s aff idavit a t a ll. The Koopman aff

idavit was properly s tric k e n b e c a u s e the extraneous fac ts contained there in wer e supplied by

defe ndants. See Shriver , 323 I ll. App. 3d at 251. ¶ 45 Moreove r, the delay in defe ndants’ disclosure of the information in Koopman’s aff idavit provided e ven more rea son for striking it. In Shriver , the insured’ s president sent his letter descr ibing the materia l events while the insurer was contemplating its duty to defe nd, but it
appea rs in this case that defe ndants did not disclose the information about misappropriating the adver tising materia ls until the cross-motions for summary judgme nt had been filed. The “eig ht corners” rule focuse s on the complaint and the policy beca use the insurer must deter mine whether it has an obligation to defe nd at the outset of the litigation. Tra velers Insurance Cos. v. Penda Corp.
, 974 F.2d 823, 827 (7th Cir. 1992). Where the insurer is

unawa re of the purported “ ‘true but unpleade d fac t,’ ” that fac t may not be considered in deter mining the duty

to defe nd. Konstant Products , 401 I ll. App. 3d at 88. By delay ing the d i s clos ure of additional fac ts bear ing on Pekin’s duty to defe nd, defe ndants left Pekin without knowledg e of true but unpleade d fac ts that, when taken toge ther with the alleg ations in the complaint, indicated that the c laims were potentially cover ed by

the policy

.

¶ 46 3. Clarification of Ambiguous Pleading ¶ 47 Def

endants cite Millers Mutual Insurance Ass’n v. Ainsworth Seed Co.
, 194 I ll. App. 3d 888 (1989), for the propositions that (1) plaintiffs’ amende d complaint was ambig uous and (2) the trial court should ha ve considere d Koopman’s aff idavit to clar ify that ambig uity

. In Ainsworth Seed Co.
, the Appellate Court, Four th District, on an appea l from a summ ary decla ratory judgme nt, considere d whether an insurer’ s duty to defe nd should be deter mined entirely upon the terms of the ins u re d ’s policy and the underly ing complaint or whether extrinsi c fac ts could be admitted, so long as those fac ts did not impact t h e i s s u es in the underlying action. S ophia C ross filed a persona l injury action aga inst Ainsworth S eed Co. (ASC) and cer

tain named employ ees for their neg lige nt desig n, installation, and construction of cer tain equipment that ca u s ed Cross’s injury

. Millers Mutual Insuranc e Association (Millers) issued a CGL p o l i cy t o ASC and its employ ees. Millers filed a decla ratory judgme nt action seeking a decla ration as to its obligations in the underly ing action. Millers

asser ted that cer

tain hazard exclu s i o n s in the policy preve nted cover ag e. The trial court g rante d ASC summ ary

judgme nt. Ainsworth Seed Co. , 194 I ll. App. 3d at 889-90. ¶ 48 On appeal, t o deter mine cover ag e, the reviewing court ex amined the alleg ations of t he underlying complaint and the insurance policy as well as the affi d avit of R. Clay ton Ainsworth. In the aff

idavit, Ainsworth stated that the machine Cross was using was installed by a differ ent company also named Ainsworth Seed Company
, that the prese nt ASC was not formed until three y ear s later, and that the prese nt ASC never owned or operated the machine

-12-that injured Cross. Foc using o n the sections of the insurance policy relating to hazard

exclusions, the court conclude d t h at M illers was not obligated to defe nd ASC and its employ ees in the Cross a ction. Ainsworth Seed Co. , 194 I ll. App. 3d at 893. ¶ 49 I n Ainsworth Seed Co.
, the ambig uity in the “conf used pleading s” needing clar ification, i.e.
, the mistaken i d en t i t y of the manufa cture r of the equipment causing the injury in the underlying suit, was obvious and undisputed. Her e, defe ndants have not explained what part of the amende d complaint was confuse d and neede d clar ificat i on. The case s are easily distinguished on the f

acts. ¶ 50 Her e, Koopman’s aff idavit was produce d not to clar ify a confuse d pleading but rathe r to broade n the scope of the alleg ations in the amende d complaint to t ri g g er Pekin’s duty to defe nd. We agree with Pekin and the trial court that Koopman’s aff idavit was proper ly
str i ck en because the affidavit contained no “true but unpleade d fac ts” of which Pekin was

awa re.

¶ 51 4. Notice Provision in Poli cy ¶ 52 We note that, in their reply brief, defe ndants sug g est that Koopman’s aff idavit should not have be en stricken beca

use “ther e is se eming ly

no case law setting an ar bitrary cutoff time for an insured’s prese ntation to its insurer of fac ts supporting a duty to defe nd.” Even assuming arguendo that this is true, defe ndants disreg ard the plain languag e of the policy itself, which prese nted an alternative basis for striking Koopman’s aff idavit. The undisputed fac ts in this case show that defe ndants’ delay in prese nting the in fo rm at i o n contained in Koopman’s aff

idavit amounted to a brea ch of policy terms that ex plicitly set forth the insureds’ duties in the e vent of a n occur renc e, off ense, c laim, or suit:
“a. Y ou must see to it that we are notified as soon as prac ticable of an ‘oc curr ence ’

or an offe nse which may result in a claim. To the extent possible, notice should include: (1) How , when, a

nd wher e the ‘ occur

renc e’ or offe nse took place ; (2) The names a

nd addre sses of any

injured per sons and witnesses; and (3) T h e nature and location of any injury or damag e arising out of the ‘occ urre nce’ or off

ense. b. I f a c laim is made or ‘suit’ is broug ht ag ainst any insured, you must: (1) I mmediately rec ord the specific s of the claim or ‘suit’ and the date rec eived; and (2) Notify

us as soon as pra cticable

. You must see to i t t h at we rec eive written notice of the claim or ‘suit’ as soon as prac ticable.
c. You a nd any other involved insure d must: (1) I mmediately send us copies of any demands, n o t i ces, summonses, or leg al
paper s rec eived in conne ction with the claim or ‘suit’; (2) Author ize us to obt ain re cords a nd other infor

mation; (3) Cooperate with us in the investigation, settlement, or defe nse of the claim or

-13-‘suit’; and (4) Assist us, upon our reque st, in the enfor ceme nt of any rig ht ag ainst any person or org anization which may be liable to the insure d beca use of the injury or damag e to which this insurance may also apply

. d. No insureds will, except at their own cost, voluntarily make a pay ment, assume any obligation, or incur any

expense, other than f

or first aid, without our c onsent.” ¶ 53 I n Country Mutual Insurance Co. v. L i vo r si Marine, Inc.
, 222 I ll. 2d 303 (2006), the
supreme court rea ffirme d that an insured’s brea ch of a policy ’s notice provision “will defe at the rig ht of the insured party to rec over under the policy .” Country Mutual
, 222 I ll. 2d at 312;

see als o W

est American Insurance Co. v. Y orkville National Bank
, 238 I ll. 2d 177, 185 (2010). This result is g rounded in the principle that notice c la u s e s “ impose valid prer equisites
to insurance cover ag e” ( Country Mutual
, 222 I ll. 2d at 311) and is rooted in the well-settled principles that insurance contra cts embody the agree ment of the parties, that the terms of the policy constitute the scope of the insurer’ s liability
, and that the insured must perf orm under those terms as a condition prec edent to rec overy ( Impe rial Fire Insurance Co. of London v. Coos Count

y , 151 U.S. 452, 462 (1894)). ¶ 54 The notice provision at issue require d defe ndants to “see to it that [P ekin is] notified as

soon as prac ticable of an ‘occ urre nce’ or an offe nse which may result in a claim” and notify Pekin of “the nature and location of any injury or damag e arising out of the ‘occ urre nce’ or offe nse.” The policy further require d defe ndants to cooper ate with Pekin in the investigation, settlement, or defe nse of the claims. Thus, the policy expli citly imposed on defe ndants a duty
to prese nt Pekin with all av ai l ab l e and relevant information reg arding plaintiffs’ sui t. One could argue p er s uasively that such fac tual detail includes information bear ing on whether Pekin owed a duty

to defe nd. ¶ 55 A policy

provision requiringnotice “a s soon as pra cticable ” mea ns that notice must be
g iven “within a rea sonable time.” (Interna l quotation marks omitted.) Country Mutual
, 222 I ll. 2d at 311. Whether notice has been g iven within a rea sonable time depends on the fac ts and circ umstances of eac h case ( Country M utual
, 222 I ll. 2d at 311-12), and the timeliness of an insur ed ’s n o t i ce t o its insurer g ener ally is a question of fac t for the trier of fac t ( Northbrook Prope rty & Casualty I nsurance Co. v . Applied Systems, I nc. , 313 I ll. App. 3d 457, 465 (2000))

. That said, beca use policy notice provisions impose valid prer equisites to insurance cover ag e ( Country Mutual
, 222 I ll. 2d at 311), one could arg ue that, as a matter of law, defe ndants brea ched the contra ct and there by forf eited their rig ht to a defe nse when they waited until the summary judgme nt stag e of Pekin’s decla ratory judgme nt action before notifying Pekin of details bear ing on its duty to defe nd. Her e, there is no dispute that, when the complaint and a

mended c omplaint we re filed in the under lying suit, def endants ha d all the information conta i n ed i n Koopm an’s aff idavit, y et they did not share it with Pekin. In fac t, in the aff

idavit, Koopman attested that he was “per sonally familiar with both companies, a

nd knowledg eable about ea ch of the ir adve rtising a nd marke ting pr actice s.” ¶ 56 I t is appare nt that defe ndants brea ched the notice provision by failing to timely prese nt Pekin with the fac ts set forth in Koopman’s aff idavit. There fore
, the trial court did not err in striking the a ffidavit.

-14-¶ 57 D. Amende d Complaint

¶ 58 Def

endants contend that, even i f Ko o p m an ’s af fi d av i t i s ex cl u d ed, the amende d complaint trig g ere d a duty t o defe nd. Specifica lly
, defe ndants cite the alleg ation that “Prec ision Dose beg an assuming operations of the Xac tdose packa g ing fac tory ” and the
prayer for relief see k i n g “a constructive trust on any profits or income [defendants have]

rec eived as a result of [t heir] wrongful conduct.” (Emphase s added.) Def endants argue that these alleg ation s am o u n ted to cover ed “adve rtising injuries” arising from (1) “misappropr iation of adver tising ideas or style of doing business” and (2) “infring ement of
copy rig ht, title, or sloga

n.” Def endants also argue that the alleg ations amounted to cover ed “per sonal injuries” arising from “the wrong ful e v ic ti o n f r o m, wrong ful entry into, or invasion of the rig ht of private occupa ncy of a room, dwelling
, or premises that a person occupie s by or on beha lf of its owner, la ndlord, or lessor.” ¶ 59 As di s cu s s ed
, i n a decla ratory judgme nt action such as that prese nted here
, wher e the issue is wh et h er t h e insurer has a duty to defe nd, a court ordinarily looks first to the alleg ations in the underly i n g co m p laint and compar es those alleg ations to the rele vant provisions of the insurance policy

. W ilson
, 2 3 7 I l l

. 2d at 455. I f the fac ts alleg ed in the underlying c omplaint fall within, or potentially within, the policy ’s cove rag e, the insurer’ s duty to defe nd arises. W

ilson , 237 I ll. 2d at 455. ¶ 60 The al l ege d co n d u ct , ra t h er than the manner in which the claim is labeled in the underlying complaint, deter mines whether the insurer has a duty to defe nd. Pek in Insurance Co. v. Roszak/ADC, LLC
, 402 I ll. App. 3d 1055, 1059 (2010). Howeve r, i t i s “the actua l complaint, not some hy

pothetical version, that must be co n s i dere d.” (Interna l quotation marks omitted.) Steadfast Insurance Co. , 359 I ll. App. 3d at 761.

¶ 61 1. Misappropriation of A dvertising I deas or Sty le of Doing

Business ¶ 62 Def

endants argue that the alleg ation that “Prec ision Dose beg an assuming opera tions of the Xac tdose packa g ing fac tory ” was a cover ed “adve rtising injury” arising from the “misappropr iation of adver tising ideas or sty le of doing business.” Def endants contend that taking over the fac tory q u alified as a misappropriation of Xac tdose’s “style of doing b usiness” in that defe ndants (1) continued to packa g e the same kind of product (liqu i d medication) in the same k i nd of packa g ing (sing le-dose units), (2) used a name simil ar to Xac tdose (Prec ision Dose), (3 ) ear ned a profit by promoting Meg estrol, and (4) attempted to neg otiate contra cts with Alpharma a nd some of Xa ctdose’s othe r for mer c lients. ¶ 63 Howeve r, the policy char acte rized an “adve rtising injury ” as being cause d by an off ense committed in the course of advertising g oods, produc t s , o r s ervic es. Even construing the amende d complaint broadly in favor of cover ag e, the alleg ation that Precision Dose assumed
operations of the fac tory encompa ssed only the manufacture of products and did not ref er to adver tising in any way

. Def

endants incorre ctly asser

t that the amende d complaint a ll e g e d that Precision Dose misappropriate d Xac tdose’s entire business, including adver tising and the sty le of doing business. The “assuming oper at ions” alleg ation ref err ed to only Xac tdose’s factory

. Had the amende d complaint alleg ed that Precision Dose assumed operations of Xa ctdose, the business
, the claim might have been within the policy ’s adver tising inj u ry

-15-cover ag e and tr igg ere d Pekin’s duty to defe nd.

¶ 64 2. Infring ement of Copy rig ht, Title, or Slogan ¶ 65 Def

endants alternatively argue that the alleg ation that “Prec ision Dose beg an assuming
operations of the Xac tdos e p ac kag ing fac tory ” was a cover ed “adve rtising injury ” arising from the “infring ement of copy rig ht, title, or sloga

n.” The “infring ement” argument and the “misappropr iation” argument are flawe d for the sam e rea son: even under the broade st interpre tation, a ssuming the operation of a fa ctory does not c reate the rea sonable infere nce that defe ndants also took over Xac tdose’s marke ting or any t y p e of adver

tising. We agree with the trial court that the “assuming operations” alleg ation was not a cover ed adver tising injury arisingfrom the infr inge ment of copy rig ht, titl e, or slog an.

¶ 66 3. Wrongf ul I nvasion ¶ 67 Finally
, d ef

en d an t s ar gu e t h at t h e al l egation that Precision Dose was “ assuming
operations” of Xac tdose’s fac tory was a cover ed “per sonal injury ” arising fr o m “[ t] he

wr o n gful eviction from, wrong ful entry into, or i nvasion of t he right of private occupa n cy of a room, dwelling
, or premises that a person occupies b y o r o n behalf of its owner , landlord, or lessor .” ¶ 68 The policy char acte rized “per sonal injury ” as being cause d by “an offe nse arising out of
y our busi ness, ex cluding adver tising, pub l i s h i ng , broadc asting
, or t elec asting done by y ou

or for y ou.” Def

endants argue that the assumption of operations of the fac tory itself was an invasion of plaintiffs’ rig ht to private occupa ncy of the fac tory

. Pekin conce des that alleg ed violations of the persona l rig hts incidental t o owner ship of proper ty , such as trespass, nuisance
, or other interfe renc e with p o s s es s ion, arguably fall within the definition of
wrong ful entry or eviction or other invasion of the rig ht of private occupa ncy

. Pekin further

conce des that this persona l injury is not limit ed to natura l persons but extends to the actions of corpor ate entities. See Supreme Laundry Servic e, L.L.C

. v. Hartford Casualty Insurance Co. , 521 F.3d 743, 747- 48 (7th Cir. 2008). ¶ 69 Howeve r, Pekin a rgued–and the trial court ag ree d–that Pekin owed no duty to de fend a
persona l-injury claim beca use the alleg ation of Precision Dose “assuming operations” of the fac tory was not a

n alleg ation of any wrong ful conduct on the part of any of the defe ndants. The court con cl u d ed that neither the alleg ations common to all claims nor the alleg ations direc ted ag ainst defe ndants in the three co unts of brea ch of fiduciar y duty char acte rized “assuming operations” as wrong ful. Pekin further argues on appea l that plaintiffs’ “re quest for an acc ounting of the sale of Xac tdose’s assets has nothing to do with Pre cision Dose or its assumpti on of Xa ctdose’s ope rations.” We agree

. ¶ 70 T h e a

me nded complaint alleg ed that defe ndants brea ched their fiduciar y duty to plain

ti f f s by falsely painting a bleak financ ial picture of Xac tdose and failing to inform plaintiffs of a potential new source of business. Plaintiffs then alleg ed that defe ndants took over the business operations, including the phy sical plant, but plaintiffs did not alleg e that the conduct

was wr ong ful.

-16-¶ 71 T h e “assuming operations” alleg ation lacke d a nexus to plaintiffs’ prayers fo r re l i ef
, which shows that the alleg ation was nece ssary only to state the chain of events. The amende d complaint soug ht compensatory damag es, punitive damag es, and the costs of litigation, none of which wer e related to the parties’ relative rig hts reg arding possession of the fac tory

. The other prayers for relief in the amende d complaint soug ht a constructive trust and “an immediate accounting of t he $1.4 million sale of assets a nd all other Xa ctdose windingup activities.” A court may impose a constructive t rust to avoid unj ust enric hment : when one obtains money to which he is not entitled, under circ umstances such that in equity and g ood conscie nce he oug ht not reta in it. Hensley Construction, LLC v. Pulte Home Corp.
, 399 I ll. App. 3d 184, 193 (2010). A constructive trust is an equitable reme dy that will be imposed

on proce eds of a brea ch of fiduciar y duty

. Baumgartner v. First Church of Christ

, Scientist
, 141 I ll. App. 3d 898, 9 0 8 (1986). Plaintiffs soug ht a constructive trust on any profits
wrong fully obtained by defe ndants afte r they assumed operation of the fac tory , but the prayer for relief was devoid of any claim for possession of the fac tory

. Even construing the amende d complaint broadly in favor of coverag e, and reg ardle ss of whether defenda nts wer e withi n their rig hts to assume operations of Xac tdose’s fac tory afte r the sale, the amende d complaint contained no claim perta ining to wrong ful entry into or eviction from the fac tory

. We conclude that assuming operations of the fac tory afte r withholding business information did
not qualify as the wrong ful eviction from, wrong ful entry into, or invasion of plaintiffs’ rig ht of private occupa

ncy of the fac tory

. There fore
, we aff irm the summary judgme nt enter ed for Pekin.

¶ 72 CONCL USI ON ¶ 73 For the rea sons stated, we aff irm the summary judgme nt for Pekin enter ed in the circ uit court of Winnebag o County

.

¶ 74 Affir

med.

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