Opinion
No. 1-14-1392
09-30-2015
COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Counterdefendant-Appellee, v. CHARLES DAHMS, Defendant-Counterplaintiff-Appellant, and TERRY ENADEGHE, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 12 CH 43692 Honorable LeRoy K. Martin, Jr. Judge Presiding. JUSTICE ELLIS delivered the judgment of the court.
Justices Howse and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: Insurer owed duty to defend lawsuit that alleged negligence as well as intentional tort. Underlying complaint could be read to allege accidental injury that would be covered by insurance policy. Exclusions for intentional or criminal acts were not applicable to negligence allegations. Affirmed as modified. ¶ 2 This declaratory judgment action involves an insurance coverage dispute as to whether plaintiff-counterdefendant, Country Mutual Insurance Company (Country Mutual), has a duty to defend its insured, defendant-counterplaintiff Charles Damns, in a lawsuit filed by defendant Terry Enadeghe against Dahms. After an altercation with Dahms, Enadeghe filed a two-count complaint alleging negligence and battery (the underlying lawsuit). ¶ 3 Country Mutual and Dahms filed cross motions for summary judgment in the declaratory judgment action. The circuit court ruled that Country Mutual had a duty to defend Dahms based on his affirmative defense of self-defense. The circuit court later clarified its ruling, finding that the duty to defend did not arise until the date Dahms filed his answer and affirmative defenses in Enadeghe's underlying lawsuit. ¶ 4 Dahms appeals from the circuit court's decision; he agrees with the trial court's finding of a duty to defend but disagrees as to the trigger date. Country Mutual cross-appeals, arguing for various reasons that it had no duty to defend the underlying lawsuit whatsoever. ¶ 5 We agree with Dahms. The trial court properly found a duty to defend but erred in holding that the duty was not triggered until Dahms pleaded the affirmative defense of self-defense. We hold that Country Mutual's duty to defend was triggered when the underlying lawsuit was initially filed against Dahms. We affirm the trial court's judgment as so modified.
¶ 6 I. BACKGROUND
¶ 7 A. Underlying Lawsuit and Coverage Dispute
¶ 8 Dahms and Enadeghe had an altercation on October 10, 2011, arising from an incident in which Enadeghe pulled his taxi cab up to a crosswalk near Dahms in downtown Chicago. Dahms's briefcase made contact with the windshield of Enadeghe's cab; Enadeghe pursued Dahms on foot; and a scuffle ensued in which Enadeghe was struck by the briefcase. Approximately a year later, on October 9, 2012, Enadeghe filed the underlying lawsuit. Dahms was also charged criminally with aggravated battery. ¶ 9 Before Enadeghe filed suit, his counsel sent a letter to Dahms on June 27, 2012, notifying him of Enadeghe's potential claim. Dahms then requested coverage from Country Mutual, with which he had a homeowner's insurance policy. On September 5, 2012, Country Mutual notified Dahms that it was denying his claim because: (1) the allegations did not constitute an "occurrence" under the homeowner's policy; and (2) even if it did, the policy contained an exclusion for "criminal acts." As the letter explained, Enadeghe's counsel "state[d] that his client was assaulted during an altercation with [Dahms] on October 10, 2011." ¶ 10 Enadeghe filed a two-count complaint against Dahms on October 9, 2012, in the circuit court of Cook County (No. 2012 L 011436). Count I alleged negligence; count II alleged battery. Each count alleged that Dahms's briefcase "made contact with the motor vehicle occupied by [Enadeghe], causing damage to the windshield." Each count also alleged that, after Enadeghe confronted Dahms on the street and demanded payment for the damage to the windshield, Dahms "physically struck [Enadeghe] with a briefcase, knocking [Enadeghe] unconscious and causing him to fall to the ground." ¶ 11 Count II alleged that Dahm's striking of Enadeghe with the briefcase was a battery. Count I called it negligence, alleging that Dahms was negligent in that he "[m]ade physical actions with his hands and fists toward [Enadeghe]," "[s]wung a briefcase in close proximity to the body of the [Enadeghe]," and "[f]ailed to warn of one or more of these negligent acts or omissions"). The final paragraph of the negligence count alleged that, as a result of "one or more of these negligent acts or omissions, [Enadeghe] suffered injuries—both temporary and permanent—to his personal and pecuniary interests." ¶ 12 At some point, Dahms retained independent counsel, who faxed a letter to Country Mutual on October 15, 2012, six days after Enadeghe filed his complaint. The letter informed Country Mutual that Dahms had exercised his right to retain independent counsel because Country Mutual had expressed interests "divergent" from Dahms. The letter also noted that Enadeghe had filed suit, and that his complaint contained at least one claim that was covered under Dahms's homeowner's policy. ¶ 13 On December 10, 2012, Country Mutual filed this declaratory-judgment action, asserting that it had no duty to defend or indemnify Dahms in connection with Enadeghe's underlying lawsuit. Similar to the position it took in its September 5, 2012 letter to Dahms, Country Mutual claimed that there was no liability coverage under the policy because the allegations did not constitute an "occurrence" which the policy, and that any claim was barred by the policy's "criminal acts" exclusion. Country Mutual additionally argued that any potential liability coverage under the policy was barred by the "expected or intended injury" exclusion. ¶ 14 Dahms moved for judgment on the pleadings, which the trial court denied. Dahms then filed a counterclaim, seeking a declaration that Country Mutual owned him a duty to defend, that it breached its insurance contract, and that it had engaged in bad faith in violation of section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2012)). ¶ 15 Meanwhile, in the underlying lawsuit, Enadeghe amended his complaint on March 6, 2013. Like the original complaint, the first amended complaint contained two counts, one for negligence and one for battery. The amended complaint modified the battery count, alleging that when Dahms struck Enadeghe with the briefcase, he did so "without consent and with intent to harm." ¶ 16 On October 31, 2013, Dahms answered that amended complaint and pleaded affirmative defenses, including self-defense. He alleged that he "used reasonable efforts and force to protect himself and/or his property from Enadeghe." Dahms also filed a two-count counterclaim against Enadeghe, alleging negligence and battery. ¶ 17 In criminal court, Dahms was convicted of aggravated battery on March 20, 2013. Country Mutual amended its complaint for declaratory judgment on November 21, 2013, to add the fact of the conviction. ¶ 18 Country Mutual and Dahms filed cross-motions for summary judgment. The trial court ruled that Country Mutual was obligated to pay for Dahms's defense, but it later entered an order clarifying that Country Mutual's obligation was limited to the period after Dahms filed his answer and affirmative defenses on October 31, 2013, the first time that Dahms asserted self-defense. Self-defense, the court reasoned, was an exception to the exclusion of coverage in the policy and thus triggered Country Mutual's duty to defend. The court subsequently entered an order containing Rule 304(a) language. Dahms filed the instant appeal and Country Mutual filed a cross-appeal.
On April 23, 2015, this court affirmed Dahms's conviction. See People v. Dahms, 2015 IL App (1st) 133301-U (unpublished order under Supreme Court Rule 23)). On June 26, 2015, Dahms filed a petition for leave to appeal with the Illinois Supreme Court. --------
¶ 19 B. Relevant Policy Provisions
¶ 20 Dahms had a homeowner's insurance policy with Country Mutual. In the portion concerning liability coverage, the policy states, in pertinent part, that Country Mutual will provide a defense "[i]f 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' to which this coverage applies." In the definitions section of the policy, "occurrence" is defined, in pertinent part, as an "accident." The word "accident" is not further defined. ¶ 21 The policy contains an exclusion to its liability coverage for "expected or intended injury" (the intentional-act exclusion):
"E. Liability, Coverage A *** [does] not apply to the following:¶ 22 The policy also contains an exclusion for "criminal acts" (the criminal-acts exclusion):
1. Expected Or Intended Injury
'Bodily injury' or 'property damage' that may reasonably be expected or intended to result from the intentional acts of 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 property or personal property, than initially expected or intended.
This exclusion applies regardless of whether any 'insured' personally participated in or committed the alleged act and regardless of whether any 'insured' subjectively intended the 'bodily injury' or 'property damage' for which a claim is made.
However, this Exclusion E.1 does not apply to 'bodily injury' resulting from the use of reasonable force by an 'insured' to protect persons or property."
"E. Liability, Coverage A *** [does] not apply to the following:
9. Criminal Acts
'Bodily Injury' or 'property damage' arising from any criminal act. Criminal act means any act or omission which is criminal in nature or for which a penal statute or ordinance permits or requires any term of imprisonment or sentence or public service duties. This exclusion applies regardless of whether any 'insured' is
actually charged with or convicted of a crime and regardless of whether any 'insured' subjectively intended the 'bodily injury' or 'property damage' for which a claim is made."
¶ 23 II. ANALYSIS
¶ 24 Country Mutual's position is that the underlying complaint against Dahms does not trigger coverage because it does not allege an "accident," and thus cannot be considered an "occurrence" under the policy for which Country Mutual owes a duty to defend. Country Mutual also argues that the allegations of the underlying lawsuit allege an intentional battery only, and thus, even if the policy otherwise applied, coverage would be excluded either as an "expected or intended injury" or as a "criminal act." ¶ 25 Dahms claims that the underlying complaint triggered Country Mutual's duty to defend for two reasons. First, the underlying lawsuit, among other things, claimed property damage—to Enadeghe's windshield—which was not alleged to be an intentional act. Second, Count I of the underlying complaint alleged that Dahms negligently, not intentionally, struck Enadeghe with the briefcase during their face-to-face confrontation. For either of those reasons, Dahms argues, the underlying complaint alleged an "accident," at least in Count I, triggering coverage under the policy. For these same reasons, he argues, the exclusions for intentional or criminal acts do not apply. Dahms also claims that Country Mutual is estopped from raising the expected-or-intended-injury exclusion because it did not raise that basis for denial of coverage when Dahms first tendered the claim to Country Mutual.
¶ 26 A. Standard of Review
¶ 27 Where cross-motions for summary judgment are filed, as in the instant case, the parties agree that no factual issues exist, and this case turns solely on legal issues subject to de novo review. Gaffney v. Board of Trustees of Orland Fire Protection District, 2012 IL 110012, ¶ 73, Founders Insurance Co. v. Munoz, 237 Ill. 2d 424, 432 (2010). The issue here of whether an insurer has a duty to defend involves the construction of an insurance contract to which we also apply a de novo standard of review. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010).
¶ 28 B. Insurer's Duty to Defend
¶ 29 An insurer's duty to defend is much broader than its duty to indemnify. General Agents Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 154 (2005). In a declaratory judgment action regarding an insurer's duty to defend, "a court ordinarily looks first to the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy." Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010). If the facts alleged in the underlying complaint fall within, or potentially within, the policy's coverage, the insurer's duty to defend is triggered. Id. This principle has been referred to as the "eight corners rule." See Farmers Automobile Insurance Ass'n v. Country Mutual Insurance Co, 309 Ill. App. 3d 694, 698 (2000) (the "court should compare the four corners of the underlying complaint with the four corners of the insurance contract"). ¶ 30 The allegations must be liberally construed in favor of the insured. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 363 (2006). If the allegations potentially fall within the policy's coverage, the duty to defend exists, even if the allegations are groundless, false, or fraudulent, and even if only one of several theories of recovery alleged in the complaint falls within the potential coverage of the policy. Id. In determining whether an insurer has a duty to defend, the court should not delve into the merits of the underlying case or determine a critical issue in that lawsuit. Bartkowiak v. Underwriters at Lloyd's, London, 2015 IL App (1st) 133549, ¶¶ 20, 25. Nor is the duty to defend annulled by knowledge on the part of the insurer that the allegations are untrue or incorrect, or that the true facts will ultimately exclude coverage. Lorenzo v. Capitol Indemnity Corp., 401 Ill. App. 3d 616, 619 (2010). "The potential[] of liability is what gives rise to the duty to defend, even though there may not be a high probability of recovery under the terms of the contract." (Emphasis added.) Hertz Corp. v. Garrott, 207 Ill. App. 3d 644, 648 (1990).
¶ 31 1. Whether the Underlying Complaint Alleges an "Accident"
¶ 32 First, we consider whether the allegations of the underlying lawsuit fit within the policy's coverage at all. As we explained above, the coverage applies to liability for damages for bodily injury or property damage arising from any "occurrence," which for our purposes includes any "accident." We must compare the language of the policy with the four corners of the underlying complaint. ¶ 33 Dahms focuses on Count I of the underlying lawsuit, which alleged the following against Dahms:
1. Dahms was a pedestrian near 310 South Clinton Street in Chicago;
2. Enadeghe was in a motor vehicle at the same location;
3. Enadeghe was peacefully conducting himself;
4. Dahms's briefcase made contact with the vehicle, causing damage to the windshield;
5. Enadeghe got out of the vehicle and asked Dahms to pay for the damage to his windshield;
6. Dahms refused to pay for the damage;
7. Dahms physically struck Enadeghe with a briefcase, knocking Enadeghe unconscious and causing him to fall to the ground;
8. Dahms was negligent in one or more of the following ways:
a) Made physical actions with his hands and fists toward Enadeghe;
b) Swung a briefcase in close proximity to Enadeghe's body; and
c) Failed to warn of one or more of these negligent acts or omissions.
(Count II, it should be noted, contains virtually identical allegations except that it omits the word "negligent" and alleges the intentional tort of battery.) ¶ 34 Country Mutual argues that Count I alleges an intentional act, notwithstanding Count I's use of the word "negligent." Because an intentional act is not an "accident," it reasons, the policy's coverage was not triggered. ¶ 35 An "accident" is "an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character." Milwaukee Mutual Insurance Co. v. J.P. Larsen, Inc., 2011 IL App (1st) 101316, ¶ 26 (and cases cited therein). In determining whether an occurrence is an "accident," Illinois courts have focused on whether the injury is expected or intended from the standpoint of the insured. USAA Casualty Insurance Co. v. McInerney, 2011 IL App (2d) 100970, ¶ 15. If an injury is not expected or intended by the insured, it is considered an accident. American Family Mutual Insurance. Co. v. Enright, 334 Ill. App. 3d 1026, 1031 (2002). Generally speaking, an injury caused by an assault and battery is not considered to be accidental. Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 619 (1980). ¶ 36 Our supreme court has cautioned against deciding the ultimate fact of the insured's intent in an underlying lawsuit during a declaratory-judgment action over the duty to defend that lawsuit. See Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 467 (2010) (in declaratory-judgment case, declining to rule, as matter of law, that insured acted "intentionally" and not in self-defense and noting that doing so would be "condoning the resolution of the issue at the heart of the underlying lawsuit."); Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197 (1976) ("The finding of the trial court *** that the injury was intentional was not proper in this declaratory judgment action. This issue was one of the ultimate facts upon which recovery is predicated [in underlying lawsuit]."). See also Bartkowiak, 2015 IL App (1st) 133549, ¶¶ 20, 25; State Farm Fire & Casualty. Co. v. Shelton, 176 Ill. App. 3d 858, 866 (1988). The concern is that "declaratory judgments prior to the resolution of the underlying tort cases might resolve 'an issue crucial to the insured's liability in the personal injury action and also one on which punitive damages could ultimately be assessed *** in a purely ancillary proceeding[,] with the plaintiff and defendant in the personal injury action both aligned on the same side as defendants in the declaratory judgment action.' " Allstate Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 774 (1990) (quoting Thornton v. Paul, 74 Ill. 2d 132, 159 (1978), overruled in part on other grounds by American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 387 (2000)). ¶ 37 On the other hand, we have not been blind to the fact that plaintiffs may have an incentive to draft pleadings in a way that triggers the defendant's insurance coverage. See, e.g., Farmers Automobile Insurance Co. v. Danner, 2012 IL App (4th) 110461, ¶ 40; Pekin Insurance Co. v. Dial, 355 Ill. App. 3d 516, 522 (2005). Thus, we give " 'little weight to the legal label that characterizes the underlying allegations.' " Danner, 2012 IL App (4th) 110461, ¶ 39 (quoting Lexmark International, Inc. v. Transportation Insurance Co., 327 Ill. App. 3d 128, 136-37 (2001)). Even where a complaint alleges an act is "negligent," if the allegations show that what is truly alleged can only be characterized as an intentional act, the substance will control over the moniker placed on it by a plaintiff. See id.; Lexmark, 327 Ill. App. 3d at 136-37. ¶ 38 The tension between our reluctance to predetermine the outcome of a critical issue in the underlying lawsuit, on the one hand, and our refusal to allow a plaintiff, via creative pleading, to manufacture insurance coverage that otherwise would not exist, on the other, has played itself out in the case law. For example, in Carioto, 194 Ill. App. 3d at 770, the insured had pleaded guilty to attempted murder after he robbed a victim and proceeded to stab him between 15 and 17 times; he had also told his accomplice, before the robbery, that "he was going to stab the [victim] and kill him." The victim filed a civil action against the insured while the insured was serving his prison sentence. Id. at 771. The initial complaint alleged intentional acts. Id. And at his deposition in prison, the insured admitted that his actions were intentional, not negligent. Id. at 773. But two years after the original complaint was filed, in a third amended complaint, for the first time the victim alleged that the insured was negligent, in that the insured " 'carelessly and negligently fell on and/or came into contact with' " the victim, " 'carelessly and negligently failed to refrain from avoiding' " the victim, and " 'carelessly and negligently struck and/or came into contact with' " the victim. Id. at 771. ¶ 39 We saw through these "facetious" allegations of negligence, concluding that there was no bona fide controversy over whether the alleged conduct was negligent versus intentional. Id. at 775. We found the nature of the assault, the insured's conviction, and the insured's judicial admission of intentional conduct at his deposition to be "conclusive evidence of intentional conduct." Id. We emphasized, however, that ordinarily we would be loath to reach this conclusion at so early a stage in the underlying tort proceeding: "we believe it is proper for a declaratory judgment court to decide the coverage issue before resolution of the tort action in the rare case, such as this one, where there is conclusive evidence that the insured acted intentionally." Id. at 776. ¶ 40 In Danner, 2012 IL App (4th) 110461, ¶ 5, the underlying lawsuit alleged that the two insureds attacked the victim after the victim entered onto the insured's property to retrieve a baseball hit by his son. The complaint alleged that one of the insureds got into his pickup truck, drove it at a high rate of speed and struck the victim. Id. ¶ 6. He then got out of his truck and struck the victim three times with a golf club. Id. The other insured allegedly repeatedly kicked and punched the victim while he lay on the ground, wounded. Id. ¶ 7. The insurance company filed a declaratory-judgment action, seeking a declaration that it had no duty to defend the insureds in the lawsuit, as the policy only covered "occurrences," defined as "accidents." Id. ¶ 10. Just before a hearing on the insurer's motion for judgment on the pleadings, the victim in the underlying case amended his complaint, adding, for the first time, allegations of negligence—that the insured drove his truck too fast and "failed to regain control" of it before it struck the victim, and that the other insured, who kicked the victim while he lay on the ground, "acted negligently" in doing so while trying to stop the fight. Id. ¶¶ 12-13. ¶ 41 We held that the insurer had no duty to defend, as the complaint as a whole—considering both the intentional battery counts as well as the newer negligence counts—did not allege an "accident." Id. ¶ 40. We first noted that the negligence count alleging that one of the insureds drove the truck and "failed to regain control of it" had omitted the facts (contained in the battery count) that, after he left the truck, he proceeded to beat the victim with a golf club. Id. We found it "difficult to see how striking [the victim] with the vehicle was merely unintended" when he followed it up with a beating with a golf club. Id. We also took note of the timing of the new negligence counts, coming on the eve of the insurer's argument for judgment on the pleadings in its declaratory-judgment case. Id. We found the new negligence counts to be a " 'transparent attempt to trigger insurance coverage.' " Id. (quoting Dial, 355 Ill. App. 3d at 522). ¶ 42 Justice Pope dissented, however, noting that Illinois allows liberal amendment of pleadings, and that the relevant question before that court was whether the allegations of the complaint would potentially fall within the policy's coverage. Id. ¶¶ 57-59. She stressed that "[w]hether [the insured's] acts were in fact intentional *** or negligent *** is a matter for the trier of fact in the underlying lawsuit, not this court, to determine." Id. ¶ 60. ¶ 43 So it should be the "rare" case that we are so confident that the allegations could not possibly be considered to describe "negligent" conduct, and can only be credibly characterized as intentional conduct, that we can say that the allegations in an underlying complaint could not even potentially fall within the coverage of a policy. Carioto, 194 Ill. App. 3d at 776. Where, for example, a complaint alleges that the insured "grabbed [the victim] from behind, locked his arms around her waist, and thrust his pelvis against her buttock several times while having an erection," all the while "ke[eping] her in his grasp and prevent[ing] her from escaping," we found it undeniable that an intentional sexual assault was alleged, no matter how the underlying complaint tried to dress up the claims as "negligent." West American Insurance Co. v. Vago, 197 Ill. App. 3d 131, 133, 137 (1990). On the other hand, where an underlying complaint alleged a fight in a bar in which the insured struck the victim with a wooden pole, the bald allegation that the insured "negligently struck [the victim] on the head" did not conclusively establish that the insured committed the intentional tort of battery, even though the insured had been criminally convicted of battery for that act, and thus the insurer owed the insured a duty to defend that lawsuit. Thornton, 74 Ill. 2d at 161, 162. ¶ 44 The allegations contained in the underlying complaint do not fit within that "rare case" that we can conclusively determine the insured's intent. The complaint is by no means detailed. It alleges only two physical acts committed by Dahms: that, when Enadeghe confronted Dahms, Dahms "made physical actions with his hands and fists toward [Enadeghe]" and "swung a briefcase in close proximity to the body of [Enadeghe]." But there is no allegation that Dahms hit Enadeghe with this fists or hands, only with his briefcase—so the fist-and-hand "physical actions" could either mean that Dahms swung and missed Enadeghe with his fists or that he was gesturing angrily. The only contact alleged is the "swinging" of the briefcase that struck Enadeghe. ¶ 45 These sparse allegations do not conclusively establish an intentional act. The allegations describe a scenario where Enadeghe left his vehicle and demanded that Dahms pay for the damage to his windshield, as well as a resulting dispute, on the street, between the two. How, exactly, Dahms came to strike Enadeghe with his briefcase is by no means clear. The allegations could describe a scuffle, in which any striking of Enadeghe could have been less than a deliberate, intentional act. It could describe a struggle over the briefcase itself. To be sure, it could describe a scenario in which Dahms used the briefcase as an offensive weapon in an intentional manner, but it could just as possibly describe the defensive use of that briefcase. The bottom line is that, while we could certainly conceive of a scenario in which these allegations described intentional conduct, we likewise could see the potential that these actions demonstrate less than intentional behavior, be it recklessness or even, as alleged in Count I, negligence. ¶ 46 We have previously discussed most of the case law on which Country Mutual relies, including Carioto, 194 Ill. App. 3d 767, Vago, 197 Ill. App. 3d 131, and Danner, 2012 IL App (4th) 110461. None of these cases persuade us that the allegations in the underlying complaint can only be interpreted as alleging intentional conduct. The allegations in the underlying complaint fall far short of the kind of obvious intentional conduct alleged in those cases—repeated stabbings (Carioto, 194 Ill. App. 3d at 771), forcible sexual assault (Vago, 197 Ill. App. 3d at 133), or attempting to run someone over in a truck and then proceeding to beat the individual with a golf club (Danner, 2012 IL App (4th) 110461, ¶ 6). The allegations of the underlying complaint are much more similar to those in Thornton, discussed above, where the complaint only alleged that the insured "negligently struck [the victim] on the head," which the supreme court held did not conclusively demonstrate the tort of battery, even though the insured had been criminally convicted of battery. Thornton, 74 Ill. 2d at 161, 162. ¶ 47 We are concerned here only with whether the claim potentially falls within the terms of the policy. We are not prepared to say, as a matter of law, that these allegations so clearly support an inference of intent that all other possible inferences are excluded. ¶ 48 Country Mutual also cites Freyer, 89 Ill. App. 3d 617, a case concerning the duty to defend a lawsuit that alleged an assault and battery, as well as damage to property. The underlying complaint alleged that the insured, in both June and November 1984, violently assaulted the victim, striking her face and head with his fists and tearing out some of her hair; in the June incident, which occurred at the victim's home, the insured also ripped the victim's phone from the wall and destroyed it. Id. at 618-19. But that decision did not grapple with the distinction between a negligent act and an intentional one in an underlying complaint; the victim's lawsuit pleaded only intentional torts and, in fact, asked for a finding of malice so that she could seek punitive damages. Id. at 619. The insured in Freyer claimed that the complaint did not allege that he subjectively intended harm to the victim—an argument the court rejected, (id. at 622)—but did not argue that the allegations of the underlying complaint pleaded negligence. Id. at 621-22. That case does not assist Country Mutual. ¶ 49 In sum, it is not "clear" from the face of the underlying complaint that the allegations could not potentially fall within the policy's coverage. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 153 (1999). We hold that the allegations in Count I of the underlying complaint could potentially fall within the policy's coverage for an "accident."
9. "As a proximate result of one or more of these negligent acts or omissions, Enadeghe suffered injuries—both temporary and permanent—to his personal and pecuniary interests."
¶ 50 2. Whether the Intentional-Acts Exclusion Bars Coverage
¶ 51 We next consider whether either of the two exclusions in the policy on which County Mutual relies are applicable. The first of those is an exclusion for bodily injury "that may reasonably be expected or intended to result from the intentional acts of an 'insured.' " If it seems redundant for an insurance policy to only apply to "accidents" but then to also contain an exclusion for "intentional" acts, that is because it is. We have previously explained that "insurance companies, in order to make this limitation of coverage absolutely clear and inescapable, include an exclusion for 'intentional injuries' caused by the insured." Freyer, 89 Ill. App. 3d 617, 619 (1980). Noting this overlap, in considering whether the allegations of an underlying complaint alleged an " 'accident' " under an insurance policy, we have asked " 'whether the person performing the acts leading to the result intended or expected the result.' " State Farm Fire and Casualty Co. v. Young, 2012 IL App (1st) 103736, ¶ 26 (quoting Country Mutual Insurance Co. v. Carr, 372 Ill. App. 3d 335, 341 (2007)). ¶ 52 Indeed, Country Mutual merges these two issues within one section of its brief. In its discussion of whether the allegations potentially described an "accident," or whether they clearly describe an "intentional act," Country Mutual cites case law interchangeably between the two questions. For example, Danner, 2012 IL App (4th) 110461, ¶ 40, discussed above, had the same coverage language (for "accidents") and a very similar exclusion for intentional injuries, but the court ultimately held that the insured's striking of the victim with his car, and later his battery of the victim with a golf club, was not an "accident." It decided the issue on the coverage language, not the exclusion. In contrast, Freyer, 89 Ill. App. 3d at 622, which concerned the same policy coverage for "accidents" and a similar intentional-injury exclusion, appeared to base its holding—that the underlying complaint alleged purely intentional conduct—on the exclusion. ¶ 53 For the reasons we stated previously concerning our belief that the allegations in the underlying complaint could potentially allege an accident, we likewise hold that the exclusion for intentional acts is not applicable to the allegations of the underlying complaint.
¶ 54 2. Whether the Criminal-Acts Exclusion Bars Coverage
¶ 55 Having determined that the allegations of the underlying complaint potentially fall within coverage, and having further found that the intentional-acts exclusion does not clearly apply, we are left with Country Mutual's argument that the criminal-acts exclusion applies. Again, that exclusion provides that Country Mutual will provide liability insurance coverage for:
" 'Bodily Injury' or 'property damage' arising from any criminal act. Criminal act means any act or omission which is criminal in nature or for which a penal statute or ordinance permits or requires any term of imprisonment or sentence or public service duties. This exclusion applies regardless of whether any 'insured' is actually charged with or convicted of a crime and regardless of whether any 'insured' subjectively intended the 'bodily injury' or 'property damage' for which a claim is made."¶ 56 We begin the analysis, first, with the reminder that insurance policies should be construed liberally in favor of coverage, and thus for an exclusion to coverage to apply, it must be "clear and free from doubt." Erie Insurance Exchange v. Compeve Corp., 2015 IL App (1st) 142508, ¶ 17. ¶ 57 Second, we should emphasize at the outset that Country Mutual is not taking the position that Dahms's criminal conviction collaterally estops him from arguing against the criminal-acts exclusion. Prior to 2000, that argument was not available to Country Mutual. In 1984, our supreme court had ruled that, in a duty-to-defend case, an insured's battery conviction could not be used to conclusively establish that the insured's conduct fell within a policy exclusion for intentional battery. Thornton, 74 Ill. 2d at 151. In Thornton, the supreme court held that evidence of the insured's criminal conviction for battery could only be used as prima facie evidence of his intent, not conclusive evidence. Id. at 151, 162. Because an additional count of negligence had been alleged in that case, the supreme court held that it would have been inappropriate for the declaratory-judgment court to decide, as a matter of law, whether the insured's conduct was intentional or negligent, and thus the insurer had a duty to defend because the claim potentially fell within insurance coverage. Id. at 159; see also Carioto, 194 Ill. App. 3d at 775 (recognizing that "a criminal conviction is only prima facie, not conclusive evidence of an insured's intent"); State Farm Fire & Casualty Co. v. Shelton, 176 Ill. App. 3d 858, 862 (despite insured's conviction for voluntary manslaughter, refusing to hold as matter of law that insured's conduct was intentional in duty-to-defend action for declaratory judgment). ¶ 58 That doctrine changed in 2000, in Savickas, 193 Ill. 2d at 387, when the supreme court overruled Thornton on that limited ground only and held that evidence of an insured's criminal conviction could, in the proper circumstances, be conclusive—it could collaterally estop the insured from re-litigating the same issue in a civil proceeding. The supreme court, in that duty-to-defend case, set forth a test for the application of collateral estoppel and cautioned that, even if the factors in the test were met, a court would not necessarily apply collateral estoppel but, instead, would balance other equitable factors to ensure that the application of collateral estoppel would not be unfair under the facts of that case. See id. at 385-89. We need not recite the test or the additional factors, but suffice it to say that the analysis required a rather detailed inquiry into the facts of the conviction and the conduct of the trial to ensure that the same issues were litigated and the criminal trial was a full and fair contest. Id. at 387-88. ¶ 59 But as the supreme court clearly expressed in Savickas, collateral estoppel does not automatically apply in every declaratory-judgment action over the duty to defend, every time the insured was convicted criminally of the underlying conduct in question. See id. at 386 ("the court must evaluate a number of factors before deciding whether to allow estoppel in any given case. It will not always be correct to allow estoppel."). And here, for reasons that are not altogether clear to us, Country Mutual has not only failed to argue the application of collateral estoppel but has affirmatively waived it, writing in its brief that it "is not asserting collateral estoppel as a result of the fact of conviction to apply the criminal acts exclusion" (emphasis in original) and "Country Mutual does not ask this Court to find the conviction collaterally estops Dahms from contending that his actions were not intentional." ¶ 60 With Country Mutual expressly disavowing any reliance on collateral estoppel, we are left simply with the evidence of Dahms's conviction for aggravated battery, by itself, without any supporting information as to how his criminal trial was conducted or any other circumstances deemed critical by our supreme court. If we were considering the intentional-act exclusion here, the evidence of Dahms's conviction, alone, would surely not be enough to show that Dahms's conduct was intentional versus negligent, as Country Mutual seems to acknowledge. See, e.g., Carioto, 194 Ill. App. 3d at 775 (refusing to find insured's conduct to be intentional based solely on criminal conviction, but relying additionally on nature of allegations—insured's repeated stabbing of victim—and insured's judicial admission that his conduct was intentional); Shelton, 176 Ill. App. 3d 858, 862 (despite insured's conviction for voluntary manslaughter, refusing to hold as matter of law that insured's conduct was intentional in duty-to-defend action for declaratory judgment). ¶ 61 We think the same result should obtain in determining whether evidence of Dahms's conviction, by itself, is sufficient evidence to establish that Dahms's conduct fits within the criminal-acts exclusion. In Allstate v. Kovar, 363 Ill. App. 3d 493, 495-96 (2006), the insured pleaded guilty to battery after he cut the victim with a knife during an altercation. The victim later sued the insured for negligence in cutting him. Id. at 495. The insured tendered the defense to the insurer, which denied the defense based on an exclusion for either "intentional or criminal acts." Id. The insurer filed a declaratory-judgment action and moved for summary judgment, attaching a copy of the criminal conviction to its motion and arguing that, under Savickas, the insured was collaterally estopped from claiming that his cutting of the victim was negligent, following his guilty plea to battery. Id. at 496. The trial court granted the motion, finding that "battery was a criminal act." Id. at 498. We reversed. Id. at 505. ¶ 62 First, we held that the insurer had not satisfied the requirements for collateral estoppel. Id. at 502. We reasoned that the mere fact of the conviction, by itself, came nowhere close to establishing collateral estoppel. Id. at 502-03. That aside, the mere fact of the insured's battery conviction provided no basis for us to find, as a matter of law, that the insured's conduct was either an intentional or a criminal act. Id. at 503. We noted there (as we have noted above, see Wilson, 237 Ill. 2d at 467; Peppers, 64 Ill. 2d at 197) the rule that "it is generally inappropriate for a court considering a declaratory judgment action to decide issues of ultimate fact that could bind the parties to the underlying litigation." Kovar, 363 Ill. App. 3d at 501. ¶ 63 We find that reasoning persuasive here. The collateral-estoppel doctrine in Savickas is an exception to the rule that courts ordinarily do not decide ultimate issues of fact in the underlying litigation at the declaratory-judgment stage, but Country Mutual has affirmatively disavowed any attempt to raise collateral estoppel. Thus, we are left with little more than the mere fact of Dahms's criminal conviction. That is simply not enough. ¶ 64 The underlying complaint alleged that Dahms committed negligence and an intentional tort. We have already found that these allegations trigger coverage. If the finder of fact in the underlying civil claim were to find that Dahms was liable in negligence, as it certainly could, there could be no argument that Dahms had engaged in a "criminal act." See 720 ILCS 5/12-3(a) (West 2010) (defining criminal battery as "knowingly" causing bodily harm or making insulting or provoking physical contact). And now Dahms has pleaded self-defense as an affirmative defense, which is a justified, non-criminal act. See 720 ILCS 5/7-1 (West 2010) (use of force to defend oneself is justification for acts). It is true, as Country Mutual notes, that self-defense is not an exception in the criminal-act exclusion, but it does not need to be, because as a matter of law, self-defense is not a criminal act; it would be redundant and unnecessary to make an exception for self-defense in the criminal-act exclusion. ¶ 65 Thus, as it stands in the underlying litigation, the fact finder has before it four possible verdicts—liability for negligence, liability for intentional battery, non-liability for insufficient proof, and non-liability based on self-defense—three of which could not possibly lead to the conclusion that Dahms engaged in a "criminal act." There is, therefore, clearly the possibility of coverage under this policy. Said differently, we cannot say as a matter of law that application of the criminal-act exclusion to the allegations of the underlying complaint is "clear and free from doubt." Erie Insurance Exchange, 2015 IL App (1st) 142508, ¶ 17. ¶ 66 Because we have found that the allegations of the underlying complaint fall within Country Mutual's policy coverage, and we have found that neither of the exclusions on which it relies to be clearly applicable, we hold that Country Mutual owes Dahms a duty to defend the underlying lawsuit, and that it did so at the time the underlying complaint was first filed. The trial court ruled that the intentional-act exclusion barred coverage until the moment that Dahms pleaded self-defense in the underlying litigation, at which point the duty to defend was triggered. Thus, we affirm the trial court's judgment that the duty to defend exists but modify that ruling as to the trigger date.
¶ 67 III. CONCLUSION
¶ 68 We hold that the duty to defend was triggered by Enadeghe's lawsuit that contained allegations of negligence. Accordingly, we affirm the trial court's May 2, 2014 judgment that Country Mutual had a duty to defend Dahms in Enadeghe's underlying lawsuit, but we modify the order with respect to the date the duty to defend arose. We hold that the duty to defend was triggered by the filing of the lawsuit on October 9, 2012, as opposed to the later date when Dahms filed his affirmative defense of self-defense. ¶ 69 Affirmed as modified.