No. 1-16-1785 Fifth Division March 24, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

)

SENTRY INSURANCE, a Mutual Company, )

)

Plaintiff and Counterdefendant, )

)

v. ) ) CONTINENTAL CASUALTY COMPANY; ) Appeal from the Circuit Court NORTHWESTERN MEDICAL FACULTY ) of Cook County. FOUNDATION; THEODORE FRANK; NICHOLAS ) HARRIS; JOE DOES 1-59; JANE DOES 1-50; JOSEPH ) No. 14 CH 16745 DOE; JAMES DOES 1-2; JANE DOE; JAMES ) ANONYMOUS; JOHN ANONYMOUS; and JEFFREY ) The Honorable DOE, ) Kathleen Pantle, ) Judge Presiding. Defendants )

)

(Continental Casualty Company, )

Defendant and Counterplaintiff-Appellant; )

)

Northwestern Medical Faculty Foundation, )

Defendant and Counterdefendant-Appellee). )

)

______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion.

OPINION

¶1 The instant interlocutory appeal concerns the trial court’s grant of a stay on the issue of

whether Continental Casualty Company (Continental) owes a duty to indemnify No. 1-16-1785

Northwestern Medical Faculty Foundation (the Foundation) for any liability the Foundation

incurs as a result of a number of lawsuits filed against it based on the failure of the

Foundation’s cryogenic tanks, which had held semen and testicular tissue specimens that

were rendered unusable. Continental argues that the trial court erred in granting the stay

because interpreting the two applicable exclusions to insurance coverage would not have

involved the determination of an ultimate fact in the underlying litigation. Alternatively,

Continental argues that if the trial court stayed the analysis concerning the applicability of the

policy’s exclusions, it should have also stayed the litigation concerning whether there was a

duty to defend the Foundation under the policy. Continental also argues in the alternative that

the trial court should have, at a minimum, determined coverage issues concerning two

lawsuits that had already been settled. For the reasons that follow, we affirm.

¶2 BACKGROUND

¶3 On October 16, 2014, Sentry Insurance 1 (Sentry) filed a complaint for declaratory

judgment against the Foundation and Continental, alleging that Sentry had issued a

commercial general liability insurance policy to the Foundation and that the Foundation

claimed that Sentry owed it a duty to defend and indemnity for approximately 65 lawsuits in

which the Foundation had been named as a defendant (the underlying lawsuits), and which

had been consolidated for pretrial activities. Continental was named in the complaint as the

Foundation’s excess insurer. Sentry’s complaint alleged that its policy did not provide

coverage for the claims alleged against the Foundation and sought a declaratory judgment

1 Sentry is not a party to the instant appeal, as it has settled its disputes with the Foundation. However, its pleadings and the motions concerning Sentry are still set forth in our statement of facts, as they are interrelated with the claims made by Continental.

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No. 1-16-1785

that it owed no duty to defend or indemnify the Foundation and reimbursement of the amount

spent thus far in defending the underlying lawsuits.

¶4 According to Sentry’s complaint, the Foundation owned and operated a cryopreservation

and storage tank for semen and testicular tissue and certain Foundation patients, including the

plaintiffs in the underlying lawsuits (the underlying plaintiffs), provided semen or testicular

tissue to the Foundation for storage and safekeeping; the Foundation received storage fees for

the cryopreservation of the semen and testicular tissue from the underlying plaintiffs. Certain

patients who had stored semen or testicular tissue with the Foundation between April and

June 2012, including the underlying plaintiffs, alleged that their samples had thawed and

were irreversibly damaged due to the failure of the Foundation’s cryopreservation tank. The

underlying plaintiffs accordingly filed the underlying lawsuits against the Foundation and

Northwestern Memorial Hospital (the Hospital), seeking damages relating to the allegedly

damaged semen and testicular tissue.

¶5 According to Sentry’s complaint, the Foundation admitted in the underlying lawsuits that

it owned and operated the cryopreservation tank for semen and testicular tissue; that certain

patients provided semen for storage and safekeeping with the Foundation; that the

Foundation accepted the semen supplied by certain patients for safekeeping; and that the

Foundation received storage fees for cryopreservation of the semen. Additionally, the

Hospital denied in the underlying lawsuits that it owned, operated, managed, or controlled

the cryopreservation tank for semen and testicular tissue; that certain patients provided semen

for storage and safekeeping with the Hospital; that the Hospital accepted the semen supplied

by certain patients for safekeeping; and that the Hospital received storage fees for

cryopreservation of the semen.

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No. 1-16-1785

¶6 Sentry’s complaint alleges that the Foundation tendered the underlying lawsuits to

Sentry, seeking defense and indemnity pursuant to the Foundation’s insurance policy with

Sentry, and that Sentry accepted the Foundation’s tender of the defense under a reservation

of rights.

¶7 According to Sentry’s complaint, John Anonymous, 2 one of the underlying plaintiffs,

filed a motion for summary judgment against the Foundation, contending that the Foundation

was liable to him under a bailment theory. Sentry alleged that in order to prevail on a

bailment claim, it was necessary to establish (1) an express or implied agreement to create a

bailment, (2) delivery of the property in good condition, (3) the bailee’s acceptance of the

property, and (4) the bailee’s failure to return the property or the bailee’s redelivery of the

property in a damaged condition. Sentry’s complaint alleged that on March 12, 2014, the trial

court in the consolidated underlying lawsuits entered summary judgment in favor of John

Anonymous “relative to elements (1), (3) and (4), thereby establishing that a bailment was

created and that [the Foundation] had exclusive possession of the specimens.”

¶8 Sentry’s complaint set forth 15 “claims,” each serving as a basis for exclusion under its

policy, and requested a declaration that Sentry had no obligation to defend or indemnify the

Foundation against the claims asserted in the underlying lawsuits. Sentry also requested

reimbursement of the funds it had expended in defending the Foundation in the underlying

lawsuits.

¶9 The Sentry insurance policy, which was attached to Sentry’s complaint, contained two

exclusions that are relevant to the instant appeal: a “care, custody, or control” exclusion and a

2 According to Sentry’s complaint, with the exception of two named individuals, the rest of the underlying plaintiffs obtained judicial orders permitting them to proceed in the underlying lawsuits with their legal names kept under seal.

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No. 1-16-1785

“professional services” exclusion. The “care, custody, or control” exclusion provided that the

insurance did not apply to property damage to “[p]ersonal property in the care, custody or

control of the insured.” The “professional services” exclusion provided that “[t]his insurance

does not apply to ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ due

to the rendering of or failure to render any professional service.” The exclusion further

defined “professional services” as “all professional liability relating to health care medical

malpractice, druggist liability, to include accountants E & O as well as directors and officers

liability.”

¶ 10 On November 20, 2014, Continental filed an answer and counterclaim. The counterclaim

contained substantially identical factual allegations as Sentry’s complaint regarding the

allegations of the underlying lawsuits. Continental’s counterclaim also alleged that (1) the

Foundation made a number of admissions in a third-party complaint that the Foundation had

filed in the underlying lawsuits, including that the Foundation provided storage in a

cryogenic tank located on the 20th floor of the Foundation for the semen and testicular tissue

of the male underlying plaintiffs; (2) the Foundation was a faculty medical practice at the

hospital; (3) the Foundation used an electronic controls system on the cryogenic tank that

was designed to cause a page to be sent to a Foundation lab technician when an alarm was

triggered by the control system; and (4) on the afternoon of April 23, 2012, a Foundation lab

technician discovered that the cryogenic tank at the Foundation had failed to maintain a

proper temperature.

¶ 11 In its counterclaim, Continental alleged that it issued to the Foundation a commercial

umbrella policy and that in order for the Foundation to obtain coverage from Continental’s

policy, “it must prove that it is entitled to coverage under the [Continental] Umbrella Policy

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No. 1-16-1785

insuring provision, including all of [Continental’s] terms, definitions and conditions,” which

it could not do. First, Continental alleged that the Foundation could not establish that “bodily

injury” or “property damage” occurred during the policy period, as required under the policy.

Additionally, like Sentry’s policy, Continental’s policy included a “care, custody, or control”

exclusion and a “professional services” exclusion. The “care, custody, or control” exclusion

provided that the insurance coverage did not apply to property damage to “[p]ersonal

property in the care, custody or control of the insured.” The “professional services” exclusion

provided:

“This insurance does not apply to any liability arising out of any act or omission,

or rendering of or failure to render professional services by you or any other person

for whose acts you are legally responsible, and arising out of the performance of

professional services for others in your capacity as a (an):

(Insert Profession of Service)

Professional Healthcare Services”

Continental’s counterclaim alleged that, even if the Foundation could establish that it

complied with all of the policy’s terms, conditions, and definitions, coverage in connection

with the underlying lawsuits would still be excluded by the “care, custody, or control” or

“professional services” exclusions. Accordingly, Continental sought a declaration that

Continental owed no coverage to the Foundation.

¶ 12 On January 12, 2015, the Foundation filed a combined motion under section 2-619.1 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)) to dismiss Sentry’s

complaint or, alternatively, to stay the complaint. On the same day, the Foundation also filed

a section 2-619.1 motion to dismiss Continental’s counterclaim and expressly adopted its

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No. 1-16-1785

arguments in support of its motion to dismiss Sentry’s complaint into its motion to dismiss

Continental’s counterclaim.

¶ 13 The Foundation argued that Sentry’s request for an adjudication of its duty to defend

should be dismissed under section 2-619 of the Code (735 ILCS 5/2-619 (West 2014))

because the resolution of that issue required the adjudication of facts that overlapped with

disputed liability issues in the underlying lawsuits. The Foundation argued that Sentry’s

arguments concerning the care, custody, or control exclusion and the professional services

exclusion were premature “because it is not clear and free from doubt from the face of the

allegations in any of the underlying complaints that either of these policy exclusions

precludes coverage and the Court cannot make coverage determinations based on disputed

liability facts at issue in the pending Underlying Actions.” Sentry argued that determining

whether the exclusions applied would require the trial court to determine “ultimate facts” in

the underlying lawsuits, including whether the Foundation had exclusive possessory control

over the semen samples at the time they were allegedly damaged and the responsibilities of

the parties involved with the cryogenic process. Sentry similarly argued that the

determination of whether the underlying lawsuits sought damaged for “bodily injury” or

“property damage” would require an adjudication of disputed liability issues in the

underlying lawsuits.

¶ 14 The Foundation also argued that Sentry’s request for an adjudication that it owed no duty

to indemnify the Foundation should be dismissed under section 2-615 of the Code (735 ILCS

5/2-615 (West 2014)) because the Foundation had not yet incurred any liability in the

underlying lawsuits. With respect to Continental, the Foundation claimed that Continental

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No. 1-16-1785

was not presently defending the Foundation and so its “request for a declaration concerning

its duty to defend is premature and should be dismissed for this reason alone.”

¶ 15 In the alternative, the Foundation argued that if dismissal was not the proper course, then

the declaratory judgment claims should be stayed because “[a] stay would conserve judicial

resources by reducing the discovery required in the coverage action, narrowing the scope of

disputed issues, and otherwise avoiding the duplication of effort that is inherent when

litigation proceeds on parallel tracks.”

¶ 16 In response, Continental argued that the issues in the declaratory judgment action would

not require the trial court to determine ultimate facts in the underlying lawsuits because the

court “will only need to apply undisputed facts to the pertinent policy language.” Continental

further argued that since there was no potential for coverage, the issues concerning both the

duty to defend and the duty to indemnify were ripe for adjudication. Continental also adopted

Sentry’s response to the motion to dismiss, which claimed that the grant of summary

judgment in John Anonymous’ favor against the Foundation established that the Foundation

had exclusive possession of the specimens, as did the Foundation’s answers to the pleadings

in the underlying lawsuits. Thus, determination of whether the care, custody, or control

exception applied would not require adjudication of an ultimate fact. Sentry’s response

further argued that the Foundation’s arguments concerning the litigation of the Foundation’s

third-party claims were not applicable, as the Foundation’s third-party claims concerned the

tank that allegedly failed and its component parts and did not concern possession of the

specimens themselves.

¶ 17 In supplemental briefing, Continental also argued that two of the plaintiffs in the

underlying lawsuits had voluntarily dismissed their complaints against the Foundation with

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No. 1-16-1785

prejudice. Continental thus argued that even if the coverage litigation was not appropriate for

most of the cases, at the very least, coverage litigation should proceed with respect to the two

cases the Foundation had resolved. Continental further requested that, if a stay was entered,

the stay should only apply until each underlying lawsuit was resolved.

¶ 18 On May 19, 2016, the trial court granted in part and denied in part the Foundation’s

motion. In its order, it discussed Sentry’s arguments and noted that “[t]he arguments raised

by [Continental] in its counterclaim are substantially identical to those asserted by Sentry in

its complaint.” First, the court found that “[a]t this point, the appropriate action is to stay the

determination of the duty to indemnify until the duty to defend has been determined,” not to

dismiss it, as dismissal would result in a waste of judicial resources. Next, the court found

that the determination of whether the care, custody, or control exclusion applied would

require the determination of an ultimate fact in the underlying litigation, since the court

would need to make a determination as to whether the Foundation had exclusive control, and

one of the ultimate facts in the underlying litigation was who had possession of the

specimens. The court thus found that “a stay is appropriate.” The court rejected Sentry’s

reliance on the partial summary judgment entered in the John Anonymous case, finding that

the judge in that case had not made any factual findings as to whether the Foundation had

exclusive care, custody, or control over the specimens at the time of the loss and that the

issue in a bailment action was possession at the beginning of the bailment, not at the time of

the loss. The court also rejected Sentry’s reliance on the Foundation’s discovery responses in

the underlying lawsuits, noting that the Foundation had never conceded that it exercised

exclusive possession of the specimens at the time of the tank’s failure.

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No. 1-16-1785

¶ 19 The court also found that the professional services exclusions in the insurers’ policies

were not ripe for adjudication. The court found that the language of the exclusion in the

Continental policy differed from that in the Sentry policy, but did not otherwise differentiate

the two policies. In analyzing a professional services exclusion, the court found that the

question was whether the activity “involves specialized knowledge, labor, or skill, and is

predominantly mental or intellectual as opposed to physical or manual.” The court found that

“[i]t is not apparent from the underlying complaints whether the maintenance of

cryogenically preserved sperm requires ‘specialization or expertise’, or is merely incidental

to any professional services [the Foundation] provides. The underlying complaints contain no

description or detail as to how sperm samples are cryogenically preserved, much less whether

cryogenic preservation of sperm is ‘predominantly mental or intellectual as opposed to

physical or manual.’ ” The court found that, to make that determination, “the Court would

have to look at extrinsic evidence (outside the pleadings) which the Court cannot do if it

tends to determine an issue crucial to the determination of the underlying lawsuit.” The court

additionally found that “in order to determine whether the professional services exclusion

applied[,] the Court would have to find that the underlying complaints assert claims for

‘health care malpractice’.[3] A trial court presiding over an insurance coverage declaratory

judgment action should not decide whether an underlying defendant committed malpractice

when that decision would bind the parties in the underlying litigation.”

¶ 20 With respect to the issue of whether the underlying lawsuits sought damages for “bodily

injury” or “property damage” under the policies such that there was a duty to defend, the

court found that this issue was ripe for adjudication. The court found that, in determining

3 Although the trial court did not make the distinction in its order, we note that this language is specific to the Sentry policy and does not appear in the Continental policy.

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No. 1-16-1785

whether there was a duty to defend, it could decide whether the allegations of the underlying

complaints contained sufficient facts to show the potential for coverage and, accordingly,

determined that it would “proceed with litigating the duty to defend analysis.”

¶ 21 Finally, the trial court found that it could not adjudicate coverage issues in the two

underlying lawsuits that had settled, since a ruling concerning those cases could still have a

collateral estoppel effect on the remaining underlying plaintiffs. The court further noted that

the Foundation also had third-party complaints pending “which could be impacted by a

ruling by this Court.”

¶ 22 On June 8, 2016, Sentry filed a notice of appeal, and on June 17, 2016, Continental

joined in Sentry’s notice of appeal and also filed its own notice of appeal. Sentry ultimately

settled with the Foundation and asked this court to dismiss its appeal, which we did on

October 25, 2016, leaving only Continental’s appeal remaining.

¶ 23 ANALYSIS

¶ 24 On appeal, we are asked to consider whether the trial court properly entered a stay on

Continental’s insurance coverage issues. While our appellate jurisdiction is normally limited

to review of final judgments (see State Farm Mutual Automobile Insurance Co. v. Illinois

Farmers Insurance Co.,

, 415 (2007)), we have jurisdiction in the instant

interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010),

which allows for appeals from interlocutory orders “granting, modifying, refusing,

dissolving, or refusing to dissolve or modify an injunction.” See, e.g., Blumenthal v. Brewer,

, ¶ 39 (“Under established Illinois law, the denial of a stay of trial court

proceedings is treated as a denial of a request for a preliminary injunction and is appealable

as a matter of right under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010).”);

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No. 1-16-1785

Marzouki v. Najar-Marzouki,

, ¶ 8 (“This court has consistently

held that a stay is injunctive in nature and a stay order is immediately appealable under Rule

307(a)(1).”); Cholipski v. Bovis Lend Lease, Inc.,

(noting

that “the appellate court has repeatedly held that Rule 307 permits the interlocutory appeal of

a stay of court proceedings”). We find that this appeal does not require us to consider the

merits of the coverage issues, which will be ultimately decided by the trial court, but requires

us only to consider the question of when the coverage issues should be decided—now, or

after the resolution of the underlying lawsuits.

¶ 25 The trial court in the instant case found that what it called the “duty to defend analysis,”

namely, the question of whether the underlying lawsuits sought damages for “bodily injury”

or “property damage” as defined by the insurance policies, was a question that it could

determine prior to the resolution of the underlying lawsuits. However, it found that the

applicability of the “care, custody, or control” and “professional services” exclusions would

require the adjudication of ultimate facts in the underlying lawsuits and accordingly stayed

consideration of those exclusions. On appeal, Continental argues that the trial court erred in

staying the coverage litigation concerning the applicability of the two exclusions. In the

alternative, Continental argues that if litigation concerning the exclusions was stayed, then

litigation concerning the “duty to defend analysis” should likewise have been stayed. Also in

the alternative, Continental argues that if a stay was proper, the stay should not apply to the

two underlying cases that have been settled.

¶ 26 I. Standard of Review

¶ 27 As an initial matter, we must discuss the standard of review applicable to our analysis.

Continental argues that we should review the propriety of the trial court’s stay de novo, while

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No. 1-16-1785

the Foundation argues that we should review it under an abuse of discretion standard. Our

courts have consistently found that “[t]he decision to grant or deny a motion to stay will not

be overturned unless the court abused its discretion.” Guarantee Trust Life Insurance Co. v.

Platinum Supplemental Insurance, Inc.,

; Cholipski,

. Continental recognizes that “Illinois courts have generally applied

the abuse of discretion standard” in this type of situation. However, it argues that there is a

“recent trend” for courts to apply a de novo standard in a Rule 307(a)(1) appeal if the

question presented is purely legal, as it argues the instant case is. We agree with the

Foundation that Continental overstates the importance of this purported “recent trend” which,

in fact, is not a recent trend at all.

¶ 28 Over 20 years ago, our supreme court found that “in an interlocutory appeal, the scope of

review is normally limited to an examination of whether or not the trial court abused its

discretion in granting or refusing the requested interlocutory relief. [Citations.] However,

where the question presented is one of law, a reviewing court determines it independently of

the trial court’s judgment. [Citation.]” In re Lawrence M.,

(1996). While,

as noted, Continental acknowledges that the propriety of an order granting or denying a stay

is normally analyzed for an abuse of discretion, Continental argues that the cases applying an

abuse of discretion standard for stay orders issued in insurance coverage declaratory

judgment actions “have been called into question” by three cases: Coe v. BDO Seidman,

L.L.P.,

, Fuqua v. SVOX AG,

, and Bovay

v. Sears, Roebuck & Co.,

. We do not find this argument

persuasive.

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No. 1-16-1785

¶ 29 First, as Continental acknowledges in its briefs on appeal, Fuqua applied an abuse of

discretion standard of review, so it does not support Continental’s argument in favor of the

application of a de novo standard of review. See Fuqua,

(“this court applies the abuse of discretion standard of review in evaluating this appeal”).

Additionally, as the Foundation points out, both Coe and Bovay involve motions to stay

litigation and compel arbitration, which is not the issue in the instant case. While Continental

argues that this distinction is irrelevant, we disagree.

¶ 30 “The circuit court may stay proceedings as part of its inherent authority to control the

disposition of cases before it. [Citation.] The court may consider factors such as the orderly

administration of justice and judicial economy in determining whether to stay proceedings.”

Philips Electronics, N.V. v. New Hampshire Insurance Co.,

(1998). For this reason, the trial court’s decision to grant a stay is reviewed under an abuse of

discretion standard. Philips Electronics,

. However, in both Coe and

Bovay, the motion to stay was filed in connection with arbitration proceedings. See Coe,

(the motion at issue was “a motion to stay the action in favor

of arbitration”); Bovay,

(the motion at issue was “a motion to

compel arbitration and stay the proceedings”). Both motions expressly stated that the stay

was sought pursuant to section 3 of the Federal Arbitration Act, which provides that, “[i]f

any suit or proceeding [is] brought in any of the courts of the United States upon any issue

referable to arbitration under an agreement in writing for such arbitration, the court in which

such suit is pending *** shall on application of one of the parties stay the trial of the action

until such arbitration has been had in accordance with the terms of the agreement.”

(1994); see Coe,

; Bovay,

,

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No. 1-16-1785

¶ 12. Thus, in these cases, the issue was whether the matter should be arbitrated, not whether

the matter should be stayed, because if the matter was to be arbitrated, it was required to be

stayed under the Federal Arbitration Act pending that arbitration. This distinguishes these

cases from the usual type of case in which a stay is a matter of the trial court’s discretion in

controlling its docket and in no way “call[s] into question” the general rule that stays are

reviewed for an abuse of discretion.

¶ 31 Furthermore, we find unpersuasive Continental’s claims that the instant case involves no

factual issues and requires only “a purely legal analysis” of the applicable law. As noted, and

as will be further discussed below, the trial court’s decision in the instant case turned on its

determination that the issues present in the coverage litigation would overlap with “ultimate

facts” at issue in the underlying lawsuits, therefore making a stay appropriate. The trial court

expressly rejected Continental’s arguments that the Foundation had already conceded the

relevant facts in its pleadings and answers to discovery in the underlying cases. Continental

uses those same arguments now to support its contention that there are no factual issues at

play and that the coverage litigation involves only legal issues. Continental’s argument is

thus putting the cart before the horse because only if we agree with its arguments concerning

the Foundation’s purported admissions could we find that there were no factual issues in

dispute.

¶ 32 In the case at bar, therefore, we find that the appropriate standard of review is abuse of

discretion, not de novo. “The standard of ‘abuse of discretion’ is the most deferential

standard of review recognized by the law; a decision will be deemed an abuse of discretion

only if the decision is ‘unreasonable and arbitrary or where no reasonable person would take

the view adopted by the circuit court.’ ” Pekin Insurance Co. v. St. Paul Lutheran Church,

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No. 1-16-1785

(quoting Gulino v. Zurawski,

).

¶ 33 II. Stay of Exclusions

¶ 34 Continental’s primary argument on appeal is that the trial court erred in staying the

consideration of whether its “care, custody, or control” and “professional services”

exclusions apply to preclude coverage under the Continental insurance policy.

¶ 35 A. Duties to Defend and Indemnify

¶ 36 We begin our analysis by setting forth the applicable law concerning an insurer’s duties

to defend and indemnify an insured. In Illinois, the duties to defend and to indemnify are not

coextensive, with the obligation to defend being broader than the obligation to pay.

International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co.,

(1988). In determining whether an insurer has a duty to defend its insured, a court

looks to the allegations in the underlying complaint and compares them to the relevant

provisions of the insurance policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,

(1992). “If the facts alleged in the underlying complaint fall within, or

potentially within, the policy’s coverage, the insurer’s duty to defend arises.” Outboard

Marine Corp.,

. However, if it is clear from the face of the complaint that

the allegations fail to state facts that bring the case within, or potentially within, the policy’s

coverage, an insurer may properly refuse to defend. United States Fidelity & Guaranty Co. v.

Wilkin Insulation Co.,

(1991) (quoting State Farm Fire & Casualty Co. v.

Hatherley,

(1993)).

¶ 37 Additionally, “a circuit court may, under certain circumstances, look beyond the

underlying complaint in order to determine an insurer’s duty to defend.” Pekin Insurance Co.

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No. 1-16-1785

v. Wilson,

(2010). “ ‘It is certainly true that the duty to defend flows in

the first instance from the allegations in the underlying complaint; this is the concern at the

initial stage of the proceedings when an insurance company encounters the primary decision

of whether to defend its insured. However, if an insurer opts to file a declaratory proceeding,

we believe that it may properly challenge the existence of such a duty by offering evidence to

prove that the insured’s actions fell within the limitations of one of the policy’s exclusions.

[Citations.] The only time such evidence should not be permitted is when it tends to

determine an issue crucial to the determination of the underlying lawsuit [citations] ***.’ ”

Wilson,

(quoting Fidelity & Casualty Co. of New York v. Envirodyne

Engineers, Inc.,

(1983)). Thus, if there is no concern that a

crucial issue will be determined, the trial court may consider evidence that would otherwise

be appropriate at that stage of the proceedings. See Wilson,

(noting that

Envirodyne Engineers involved evidence available in summary judgment proceedings, while

Wilson involved evidence available in a grant of judgment on the pleadings).

¶ 38 “[W]here an exclusionary clause is relied upon to deny coverage, its applicability must be

clear and free from doubt because any doubts as to coverage will be resolved in favor of the

insured.” International Minerals & Chemical Corp.,

; see also Wilson,

(“ ‘provisions that limit or exclude coverage will be interpreted liberally in

favor of the insured and against the insurer’ ” (quoting American States Insurance Co. v.

Koloms,

(1997))). “[W]here the language of an insurance policy is clear

and unambiguous, it will be applied as written.” Hatherley,

. The

construction of an insurance policy presents a question of law that is reviewed de novo.

Outboard Marine,

. De novo consideration means we perform the same

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No. 1-16-1785

analysis that a trial judge would perform. Erie Insurance Exchange v. Compeve Corp.,

.

¶ 39 An insurer’s duty to indemnify is narrower than its duty to defend its insured. Outboard

Marine,

. “[T]he question of whether the insurer has a duty to indemnify the

insured for a particular liability is only ripe for [adjudication] if the insured has already

incurred liability *** against it.” Outboard Marine,

. “If so, the duty to

indemnify arises if the insured’s activity and the resulting loss or damage actually fall within

the *** policy’s coverage.” (Emphasis in original.) Outboard Marine,

.

However, if a court determines that the insurer has no duty to defend, “it may simultaneously

determine that the insurer has no duty to indemnify.” Abrams v. State Farm Fire & Casualty

Co.,

(1999). “In cases *** where no duty to defend exists and the

facts alleged do not even fall potentially within the insurance coverage, such facts alleged

could obviously never actually fall within the scope of coverage. Under no scenario could a

duty to indemnify arise. Clearly, where there is no duty to defend, there will be no duty to

indemnify ***.” (Emphases in original.) Crum & Forster Managers Corp. v. Resolution

Trust Corp.,

(1993). In the case at bar, although only the duty to

indemnify is at issue with respect to Continental’s policy, Continental claims that the issue is

ripe for adjudication because there was no duty to defend.

¶ 40 B. Peppers Doctrine

¶ 41 In the case at bar, the trial court determined that it was premature to consider whether the

“care, custody, or control” and “professional services” exclusions applied to deny coverage

to the Foundation and instead decided to stay the coverage litigation on this question. The

court’s decision to stay the determination of these coverage issues was based on its

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No. 1-16-1785

application of the “Peppers doctrine,” which was set forth by our supreme court in Maryland

Casualty Co. v. Peppers,

(1976).

¶ 42 In the declaratory judgment action at issue in Peppers, the trial court was asked to

determine whether an insurer owed a duty to defend its insured in a personal injury action

that alleged intentional, negligent, and willful and wanton conduct; the insurance policy at

issue specifically excluded coverage for intentionally inflicted injuries. Peppers,

. After a bench trial, the trial court found that the insured’s actions were intentional

and, therefore, there was no coverage under the policy. Peppers,

. Our

supreme court, however, found that “[b]y virtue of the interrelation of the various issues

involved in the litigation between [the underlying plaintiff] and [the insured] and between

[the insured] and [the insurer] we must conclude that this finding by the trial court

constituted an abuse of the discretion vested in it” under the Civil Practice Act (Ill. Rev. Stat.

1975, ch. 110, ¶ 57.1). Peppers,

. The supreme court found that under the

principle of collateral estoppel, the finding in the declaratory judgment action that the injury

was intentionally inflicted “could possibly establish the allegations of the assault count in the

complaint and might preclude [the underlying plaintiff’s] right to recover under the other

theories alleged.” Peppers,

. The supreme court cited with approval an

appellate court case finding that such a judgment under similar circumstances was premature,

and found that “[t]he finding of the trial court in our case 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 the *** personal injury action against [the insured], which

had been filed considerably before the declaratory judgment action had been instituted.”

19

No. 1-16-1785

Peppers,

. This ruling has come to be known as the “Peppers doctrine.” TIG

Insurance Co. v. Canel,

(2009).

¶ 43 “Under the Peppers doctrine, ‘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.’ ” Landmark American Insurance Co. v. NIP Group, Inc.,

(quoting Allstate Insurance Co. v. Kovar,

(2006)). “This proscription specifically precludes determination of any ultimate facts upon

which liability or recovery might be predicated in the underlying case.” NIP Group,

. Thus, it is an abuse of discretion for a trial court in a declaratory

judgment action to make such a determination. Peppers,

; Empire Fire &

Marine Insurance Co. v. Clarendon Insurance Co.,

(1994).

¶ 44 Our supreme court in Peppers did not define the term “ultimate fact” and has

subsequently used other terms to stand for the same proposition. In Thornton v. Paul, our

supreme court, relying on Peppers, found that “it would not be appropriate, under the facts of

this case, for the insurer to seek a declaratory judgment that the insured’s conduct constituted

a battery and was thus beyond the coverage of the insurance policy. In such a proceeding, an

issue crucial to the insured’s liability in the personal injury action and also one on which

punitive damages could ultimately be assessed would be determined 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.” (Emphasis added.) Thornton v.

Paul,

(1978), overruled in part on other grounds by American Family

Mutual Insurance Co. v. Savickas,

(2000). In Savickas, the supreme court

reaffirmed the “rule” relied on by the Thornton court “that it is inappropriate to resolve a

20

No. 1-16-1785

declaratory judgment action in such a manner as would bind the parties in the underlying

litigation on any issues therein.” (Emphasis added.) Savickas,

. Thus, in

applying the Peppers doctrine, courts have had to determine whether the facts to be decided

in the declaratory judgment action would be considered “ultimate facts” such that the

coverage litigation was premature.

¶ 45 For instance, in Envirodyne Engineers, the appellate court began its analysis by

attempting to define “ultimate fact.” The court noted:

“Both Peppers and Thornton are instructive as to what matters cannot be

determined in a declaratory judgment proceeding prior to the completion of the

underlying action. Peppers states that an ultimate fact upon which recovery is

predicated in the underlying case may not be addressed. The court’s language

suggests that an ultimate fact is one which would estop the plaintiff in the underlying

case from pursuing one of his theories of recovery. Thornton implies that an ultimate

fact is one in which ‘an issue crucial to the insured’s liability’ in the underlying case

is determined. Apparently only then would the inequities surface in regard to

alignment of the parties and the order and burden of proof, because those matters

necessarily arise in any declaratory judgment proceeding brought before completion

of the underlying lawsuit. Thus, in examining the facts in the instant case, we must

decide whether the plaintiff in the underlying lawsuit would be estopped from raising

a theory of recovery or if the trial court decided an issue crucial to the insured’s

liability in the underlying case.” Envirodyne Engineers,

.

Applying this standard, the Envirodyne Engineers court noted that the sole issue determined

by the trial court in the declaratory judgment proceeding was the nature of the services

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No. 1-16-1785

provided by the insured at a construction site, namely, that the insured was acting as a

consulting engineer. Envirodyne Engineers,

. The court found that this

determination in no way “estops the underlying plaintiff from raising a theory of recovery or

decides any issue crucial to the underlying litigation.” Envirodyne Engineers,

. The court noted that the allegations in the underlying complaint were for violations

of the Structural Work Act and for negligence, and found that “[a] finding that [the insured]

performed as a consulting engineer in no way diminishes either theory of recovery advanced

by the underlying plaintiff.” Envirodyne Engineers,

. The court further

found that the fact that the insured was acting as a consulting engineer was not an issue

crucial to its liability in the underlying case because “the ultimate, or crucial, queries in this

case revolve around whether [the insured] ‘willfully’ violated the Structural Work Act or

whether [the insured] acted negligently. None of these questions hinges upon whether [the

insured] did or did not serve in the capacity of consulting engineer for the construction

project.” Envirodyne Engineers,

. Accordingly, the court found that

the nature of the insured’s services was not an issue of ultimate fact. Envirodyne Engineers,

.

¶ 46 In the case at bar, the trial court determined that a finding concerning the applicability of

the “care, custody, or control” and “professional services” exclusions would require it to

determine ultimate facts in the underlying lawsuits. We consider each exclusion in turn,

bearing in mind that, “[i]n determining whether to stay proceedings, the circuit court has

discretion to consider factors such as the ‘orderly administration of justice and judicial

economy,’ as well as its inherent authority to control the disposition of the cases before it.”

22

No. 1-16-1785

TIG Insurance Co. v. Canel,

(2009) (quoting Estate of Bass v.

Katten,

(2007)).

¶ 47 C. Care, Custody, or Control Exclusion

¶ 48 Continental’s insurance policy contained a “care, custody, or control” exclusion that

provided that the insurance did not apply to property damage to “[p]ersonal property in the

care, custody or control of the insured.” “For this common exclusion, Illinois courts ‘employ

a two-part test. If the property damaged is within the possessory control of the insured at the

time of the loss and is a necessary element of the work performed, the property is considered

to be in the care, custody, or control of the insured.’ ” Liberty Mutual Insurance Co. v. Zurich

Insurance Co.,

(2010) (quoting Caisson Corp. v. Home Indemnity

Corp.,

(1986)). “With respect to whether an insured [has]

possessory control of the property at the time of the loss, it has been noted that, ‘[w]hile the

control exercised by the insured must be exclusive, it need not be continuous, and if the

insured has possessory control at the time the property is damaged, the exclusion clause will

apply.’ ” Bolanowski v. McKinney,

(1991) (quoting Country

Mutual Insurance Co. v. Waldman Mercantile Co.,

(1981)); Essex

Insurance Co. v. Wright,

(2007); Caisson Corp.,

. Thus, in order for the trial court in the declaratory judgment action to determine that the

“care, custody, or control” exclusion applied in the instant case, it would need to determine

that the Foundation exercised exclusive control over the specimens at the time they were

damaged.

¶ 49 Continental argues that this determination would not require the resolution of an ultimate

fact in the underlying lawsuits. First, Continental argues that exclusive possessory control of

23

No. 1-16-1785

the specimens at the time they were damaged is not necessary for either a bailment or

negligence claim. While Continental correctly states that, in theory, neither a cause of action

for bailment nor a cause of action for negligence requires exclusive possession at the time of

the damage, Continental fails to consider the actual factual allegations in the underlying

lawsuits.

¶ 50 The underlying lawsuits name both the Foundation and the Hospital as defendants and

allege causes of action for bailment and negligence against both. With respect to the

negligence claim against the Hospital, the underlying complaints allege 4 that, at the time the

cryogenic tanks failed, the Hospital “had the duty to exercise ordinary care in the storage and

preservation of the semen/testicular specimens” of the underlying plaintiffs and was

negligent in, inter alia, “[f]ail[ing] to adequately maintain the semen/testicular tissue

specimens in its possession”; “[f]ail[ing] to adequately store the semen/testicular tissue

specimens in its possession”; and “[f]ail[ing] to adequately preserve the semen/testicular

tissue specimens in its possession.” Thus, the allegations of the underlying complaints

expressly allege that the Hospital exercised possessory control over the specimens at the time

they were damaged. Similarly, with respect to the bailment claim against the Hospital, the

underlying complaints allege that the semen or testicular tissue specimens of the underlying

plaintiffs “were damaged without [the underlying plaintiffs’] knowledge or consent while

under the care of” the Hospital. Thus, the bailment claims allege that the specimens were

under the Hospital’s care at the time they were damaged.

¶ 51 As we have previously noted, in order for the trial court in the declaratory judgment

action to determine that the “care, custody, or control” exclusion applied in the instant case, it

4 The underlying complaints, all of which were attached to Continental’s counterclaim, are substantively identical.

24

No. 1-16-1785

would need to determine that the Foundation exercised exclusive control over the specimens

at the time they were damaged. However, this would contradict the allegations in the

underlying complaint that allege that the Hospital exercised control over the specimens at

that same time and would effectively preclude the underlying plaintiffs from proving their

claims against the Hospital. This is exactly the type of factual determination that the Peppers

doctrine prohibits.

¶ 52 We are not persuaded by Continental’s arguments that the Foundation has already

admitted that it retained exclusive control in its pleadings and answers to discovery such that

the trial court’s determination in the instant case would have no effect on the underlying

lawsuits. Continental’s arguments are based on the answer filed by the Foundation and the

Hospital to the John Anonymous complaint, as well as the third-party complaint jointly filed

by the Foundation and the Hospital. With respect to the answer filed in the John Anonymous

complaint, that complaint did not state its allegations against the Foundation and the Hospital

in separate paragraphs but discussed them together; for instance, paragraph 2 of the

complaint alleged that “[i]n 2008, [the Hospital] and [the Foundation] owned, operated,

managed, and controlled a cryopreservation storage tank for semen/testicular tissue located at

their outpatient urology facility in the Galter Pavilion of [the Hospital].” The answer to that

allegation, filed jointly by the Foundation and the Hospital, was: “[The Foundation] admits

that it owned and operated a cryopreservation storage tank for semen/testicular tissue and

denies the remaining allegations of paragraph 2. Further answering, defendant [the Hospital]

denies owning, operating, managing, or controlling the cryopreservation storage tank for

semen/testicular tissue located at [the Foundation]’s urology facility in the Galter Pavilion.”

Continental reads this answer, along with the Foundation’s other answers, as the Foundation

25

No. 1-16-1785

“fully conceding” that the Foundation had exclusive possessory control over the specimens at

the time they were damaged. Continental’s argument rests on the assumption that a denial in

an answer operates as a concession that the corollary of that allegation is true; that is, under

Continental’s view, the Foundation’s denial in the above-quoted answer operates as a

concession that the Hospital did not own, operate, manage, or control the cryopreservation

storage tank.

¶ 53 However, that is the opposite of the way in which answers to complaints operate. An

answer is required to contain an explicit admission or denial of each allegation of the

pleading to which it relates. 735 ILCS 5/2-610(a) (West 2014). “Every allegation *** not

explicitly denied is admitted ***.” 735 ILCS 5/2-610(b) (West 2014). In the case at bar, then,

using the above-quoted answer as an example, the Foundation admitted only that it owned

and operated a cryopreservation storage tank for semen/testicular tissue because it denied the

remaining allegations of the paragraph, which related to the Hospital. Continental’s position

would require the court to interpret the Foundation’s denial as a concession that the Hospital

did not own, operate, manage, or control the cryopreservation storage tank, in effect

conceding that the Foundation exercised exclusive possession over the tank. Continental

provides no authority for this novel way of interpreting the Code of Civil Procedure, and we

do not find its attempt to fashion an admission out of a denial to be persuasive. The

Foundation’s answers at most admit that it had control over the specimens and do not speak

to whether that control was exclusive.

¶ 54 Similarly, the third-party complaint is silent as to exclusive control. Continental points to

paragraph 13 of the third-party complaint, which alleges that “[a]t all relevant times, [the

Foundation] provided storage for plaintiffs’ semen and/or testicular tissue in a cryogenic

26

No. 1-16-1785

freezer designed and manufactured by Horizon, Harsco and Taylor-Wharton. The freezer was

located on the 20th Floor of [the Foundation].” Again, this allegation at most demonstrates

that the Foundation had control over the specimens, but says nothing about whether that

control was exclusive. Thus, we do not find that the Foundation has conceded its exclusive

possession of the specimens such that the trial court’s decision in the instant insurance

coverage litigation would not run afoul of the Peppers doctrine should it also make such a

determination.

¶ 55 We are similarly unpersuaded by Continental’s argument that the trial court’s entry of

partial summary judgment in the John Anonymous case necessarily resolved the issue of

exclusive possession. The trial court in that case entered summary judgment on John

Anonymous’ bailment count “on elements 1, 3 & 4.” The first element referred to by the trial

court is “an express or implied agreement to establish a bailment.” Longo Realty v. Menard,

Inc.,

, ¶ 21. Continental argues that the Foundation did not dispute

that it entered into a bailment and, thus, conceded that it had exclusive possession. However,

as the trial court pointed out, a bailment is created at the time of the delivery of the property,

while the “care, custody, or control” exclusion concerns possession of the property at the

time of the loss. See Wausau Insurance Co. v. All Chicagoland Moving & Storage Co.,

(2002) (“A bailment is the delivery of property for some purpose

upon a contract, express or implied, that after the purpose has been fulfilled, the property

shall be redelivered to the bailor, or otherwise dealt with according to his directions, or kept

until he reclaims it.” (Internal quotation marks omitted.)); Bolanowski,

(“if the insured has possessory control at the time the property is damaged, the exclusion

clause will apply” (internal quotation marks omitted)). Thus, a finding that a bailment was

27

No. 1-16-1785

created is not relevant to the issue of whether the Foundation exercised exclusive control

over the specimens at the time the tank failed.

¶ 56 As a final matter concerning the “care, custody, or control” exclusion, Continental

appears to believe it is “irrelevant” whether potential claims remain against the Hospital.

However, by making this argument, Continental appears to miss the point of the Peppers

doctrine. As our supreme court noted in that case, under the principle of collateral estoppel,

the finding in the declaratory judgment action that the injury was intentionally inflicted

“could possibly establish the allegations of the assault count in the complaint and might

preclude [the underlying plaintiff’s] right to recover under the other theories alleged.”

Peppers,

. The supreme court thus found that such a determination was an

abuse of the trial court’s discretion. Peppers,

. Similarly, here, a finding that

the Foundation had exclusive possessory control over the specimens at the time of the

damage could preclude the underlying plaintiffs’ right to recover under the bailment and

negligence theories they alleged in their complaints against the Hospital. Contrary to

Continental’s contention, this is the heart of the problem and is not “irrelevant.” We thus

cannot find that the trial court abused its discretion in deciding to stay the litigation

concerning the “care, custody, or control” exclusion.

¶ 57 D. Professional Services Exclusion

¶ 58 Continental also argues that the trial court could have determined the applicability of its

“professional services” exclusion without determining any ultimate facts in the underlying

litigation. The “professional services” exclusion contained in the policy provided:

“This insurance does not apply to any liability arising out of any act or omission,

or rendering of or failure to render professional services by you or any other person

28

No. 1-16-1785

for whose acts you are legally responsible, and arising out of the performance of

professional services for others in your capacity as a (an):

(Insert Profession of Service)

Professional Healthcare Services”

¶ 59 In construing “professional services” exclusions, “courts have adopted an expansive

definition of the term ‘professional service.’ The term is not limited to services performed by

persons who must be licensed by a governmental authority in order to practice their

professions. Rather, it refers to any business activity conducted by the insured which

involves specialized knowledge, labor, or skill, and is predominantly mental or intellectual as

opposed to physical or manual in nature.” State Street Bank & Trust Co. of Quincy, Illinois v.

INA Insurance Co. of Illinois,

(1991); see also Pekin Insurance Co.

v. L.J. Shaw & Co.,

(1997).

¶ 60 In the case at bar, the trial court found that “[i]t is not apparent from the underlying

complaints whether the maintenance of cryogenically preserved sperm requires

‘specialization or expertise’, or is merely incidental to any professional services [the

Foundation] provides. The underlying complaints contain no description or detail as to how

sperm samples are cryogenically preserved, much less whether cryogenic preservation of

sperm is ‘predominantly mental or intellectual as opposed to physical or manual.’ ” The court

found that, to make that determination, “the Court would have to look at extrinsic evidence

(outside the pleadings) which the Court cannot do if it tends to determine an issue crucial to

the determination of the underlying lawsuit.”

¶ 61 Continental argues that “[a]ll of the alleged actions or omissions of [the Foundation] in

the Cryogenic Tank Claims relate to [the Foundation]’s means and methods for preserving its

29

No. 1-16-1785

patients’ semen/testicular tissue specimens through a cryopreservation system within a

cryogenic tank. [Citation.] Such cryogenic related activities clearly require specialized

knowledge, labor or skill and are predominantly mental or intellectual.” Thus, it argues that

the allegations of the underlying complaints are sufficient to determine whether the

Foundation’s actions constitute “professional services” under the policy and that such a

determination does not involve the resolution of any ultimate facts.

¶ 62 By contrast, the Foundation argues that the underlying complaints do not contain any

detail as to how frozen sperm samples are maintained or what specialized knowledge or skill

is required in maintaining them. Thus, the Foundation argues that the complaints alone are

insufficient to answer this question. Furthermore, the Foundation argues that “the question of

what [the Foundation] did—or did not do—as part of its cryopreservation program is what

the Underlying Actions are all about. The claims against [the Foundation] turn on whether

[the Foundation] was negligent in its efforts to maintain, store and preserve the samples, and

what actions it took to monitor the tank or to safeguard the plaintiffs’ samples. The evidence

bearing on these critical issues is the same type of evidence that would inform whether the

professional services exclusion applies.” (Emphasis in original.)

¶ 63 Continental is correct that courts in other cases have considered the nature of an insured’s

work without running afoul of the Peppers doctrine. See, e.g., Bonnie Owen Realty, Inc. v.

Cincinnati Insurance Co.,

(1996) (finding that the trial court

properly determined that “[n]one of the allegations of negligence involve any specialized

knowledge, labor, or skill, nor do they involve conduct which is predominantly mental or

intellectual as opposed to physical of manual in nature”); Envirodyne Engineers,

(noting that “[t]he sole issue determined by the trial court in the

30

No. 1-16-1785

declaratory proceeding was the nature of the services performed by [the insured] at the job

site,” which did not estop the underlying plaintiff from raising a theory of recovery or decide

any issue crucial to the underlying litigation). However, the fact that other courts chose to

decide the issue does not mean that the trial court in the instant action was required to do the

same.

¶ 64 In the case at bar, the trial court found that it could not determine whether the

Foundation’s conduct constituted professional services by looking at the underlying

complaints and, to make that determination, “the Court would have to look at extrinsic

evidence (outside the pleadings) which the Court cannot do if it tends to determine an issue

crucial to the determination of the underlying lawsuit.” This latter statement by the trial court

implies that it believed that determining the nature of the Foundation’s conduct would

require it to determine an issue crucial to the underlying lawsuits.

¶ 65 As noted, “[t]he decision to grant or deny a motion to stay will not be overturned unless

the court abused its discretion.” Guarantee Trust Life Insurance,

; Cholipski,

. Furthermore, “[i]n determining whether to

stay proceedings, the circuit court has discretion to consider factors such as the ‘orderly

administration of justice and judicial economy,’ as well as its inherent authority to control the

disposition of the cases before it.” Canel,

(quoting Estate of Bass,

).

¶ 66 In the case at bar, we cannot find that the trial court abused its discretion in taking the

more cautious approach and choosing not to decide an issue that it believed had the potential

to affect the underlying lawsuits. Certainly, as the Foundation points out, the nature of the

Foundation’s conduct could touch on its liability for negligence and the liability of the third­

31

No. 1-16-1785

party defendants. While Continental argues that the trial court did not need to determine

whether the Foundation acted appropriately but only needed to determine whether the

Foundation’s conduct involved “specialized knowledge,” we cannot find that the trial court’s

decision to stay that determination was so “ ‘unreasonable and arbitrary’ ” (St. Paul Lutheran

Church,

(quoting Gulino,

))

such that it constituted an abuse of discretion.

¶ 67 As a final matter on this issue, Continental argues that even if the allegations of the

underlying complaints were insufficient to resolve this issue, the trial court could examine

extrinsic evidence to determine the nature of the Foundation’s activities. It claims that “[a]s

in Envirodyne, evaluating extrinsic facts beyond the allegations in the complaints, as to the

specifics of how [the Foundation] cryogenically preserved its patients’ tissue in the cryogenic

tank, will provide additional information to confirm that [the Foundation]’s actions involved

special knowledge and training to support the application of the professional services

exclusion.” While we have already determined that the trial court appropriately stayed the

consideration of this issue, we must caution that Continental takes an overly expansive view

of what extrinsic evidence may be considered by the trial court.

¶ 68 As we have discussed earlier, “a circuit court may, under certain circumstances, look

beyond the underlying complaint in order to determine an insurer’s duty to defend” (Wilson,

), and an insurer may offer extrinsic evidence to prove that an exclusion

applies unless “ ‘it tends to determine an issue crucial to the determination of the underlying

lawsuit’ ” (Wilson,

(quoting Envirodyne Engineers, 122 Ill. App. 3d at 304­

05)). However, even if there is no concern that a crucial issue will be determined, the trial

court may only consider evidence that would otherwise be appropriate at that stage of the

32

No. 1-16-1785

proceedings. See Wilson,

(noting that Envirodyne Engineers involved

evidence available in summary judgment proceedings, while Wilson involved evidence

available in a grant of judgment on the pleadings). The Wilson court specifically cautioned

that Envirodyne Engineers, which is cited by Continental in support of this argument,

involved a summary judgment proceeding, which explained why that court was permitted to

consider the evidence it did. See Wilson,

. By contrast, in Wilson, which was

decided on the pleadings, our supreme court noted that it was limited by examining the

pleadings alone. Wilson,

. Thus, Envirodyne Engineers does not stand for

the proposition that all extrinsic evidence may be considered, but only that the court in the

declaratory judgment action may consider extrinsic evidence that would otherwise be

appropriate at that stage of the proceedings and that does not determine a crucial issue in the

underlying litigation.

¶ 69 III. Duty to Defend

¶ 70 Continental next argues that, if the trial court properly stayed litigation of whether the

exclusions applied, it should have also stayed litigation on whether the underlying lawsuits

alleged “bodily injury” or “property damage” such that there was a duty to defend under the

language of its policy. 5 In the case at bar, with respect to the issue of whether the underlying

lawsuits sought damages for “bodily injury” or “property damage” under the policies such

that there was a duty to defend, the court found that this issue was ripe for adjudication. The

court found that, in determining whether there was a duty to defend, it could decide whether

the allegations of the underlying complaints contained sufficient facts to show the potential

5 We note that only Sentry’s complaint alleges a duty to defend. However, Continental’s arguments are based on the theory that if there is no duty to defend, there can be no duty to indemnify. As both policies contain identical language concerning “bodily injury” and “property damage,” the duty to defend arguments would equally apply to both insurers.

33

No. 1-16-1785

for coverage and, accordingly, determined that it would “proceed with litigating the duty to

defend analysis.” We cannot find that the trial court abused its discretion by proceeding to

consider whether the allegations of the underlying complaints fall potentially within the

policies’ coverage such that there was a duty to defend.

¶ 71 As we have noted, in determining whether an insurer has a duty to defend its insured, a

court looks to the allegations in the underlying complaint and compares them to the relevant

provisions of the insurance policy. Outboard Marine Corp.,

. “If the

facts alleged in the underlying complaint fall within, or potentially within, the policy’s

coverage, the insurer’s duty to defend arises.” Outboard Marine Corp.,

.

However, if it is clear from the face of the complaint that the allegations fail to state facts that

bring the case within, or potentially within, the policy’s coverage, an insurer may properly

refuse to defend. Wilkin Insulation,

(citing Hatherley,

).

¶ 72 “The insurer bears the burden of establishing that it has no duty to defend.” Skolnik v.

Allied Property & Casualty Insurance Co.,

. “This burden

includes affirmatively demonstrating the applicability of an exclusion.” Skolnik,

. “[W]here an exclusionary clause is relied upon to deny coverage, its

applicability must be clear and free from doubt because any doubts as to coverage will be

resolved in favor of the insured.” International Minerals & Chemical Corp.,

; see also Wilson,

(“ ‘provisions that limit or exclude coverage will be

interpreted liberally in favor of the insured and against the insurer’ ” (quoting Koloms,

)).

34

No. 1-16-1785

¶ 73 In the case at bar, as we have discussed above, the trial court properly concluded that

there is no way to determine whether the Continental policy’s exclusions apply without

determining ultimate facts in the underlying lawsuits, thereby running afoul of the Peppers

doctrine. Thus, at this stage of the proceedings, Continental is unable to “affirmatively

demonstrat[e] the applicability of an exclusion” (Skolnik,

)

and therefore cannot rely on the exclusions to establish that it has no duty to defend the

Foundation because the applicability of the exclusions is not “clear and free from doubt” and

we must resolve any doubts as to coverage in favor of the foundation. International Minerals

& Chemical Corp.,

.

¶ 74 However, in considering the rest of the policy, which provides coverage for “bodily

injury” and “property damage,” the trial court is required to consider whether “the facts

alleged in the underlying complaint fall within, or potentially within, the policy’s coverage.”

Outboard Marine Corp.,

. This is something the trial court can do without

deciding any ultimate facts in the underlying litigation. Accordingly, the trial court did not

abuse its discretion in finding that it did not need to stay consideration of the duty to defend,

and may properly proceed to consider whether the allegations of the underlying complaints

show the potential for coverage.

¶ 75 We emphasize that the duty to indemnify arises only “if the insured’s activity and the

resulting loss or damage actually fall within the *** policy’s coverage.” (Emphasis in

original.) Outboard Marine,

. Thus, once the underlying facts required for

consideration of the applicability of the exclusions are decided, the trial court will be able to

determine whether the foundation’s activity actually fell within the policy’s coverage such

that there is a duty to indemnify. However, for purposes of a duty to defend, since

35

No. 1-16-1785

Continental is unable to “affirmatively demonstrat[e] the applicability of an exclusion”

(Skolnik,

) at this point, the trial court could properly proceed

to consider the rest of the policy’s language to determine if a duty to defend arose.

¶ 76 IV. Settled Lawsuits

¶ 77 Finally, Continental argues that if the matter was properly stayed, then the stay should not

extend to those underlying lawsuits that have already been resolved. Continental points to

two lawsuits that have been settled and argues that the coverage litigation should proceed

with respect to these suits. We do not find this argument persuasive.

¶ 78 The basis for Continental’s argument on appeal is the citation of a number of other cases

in which coverage litigation for certain lawsuits has proceeded while other lawsuits remain

pending. However, in at least one of the cases it cites, there was no dispute between the

parties as to whether litigation on some claims could proceed while others remained pending,

as there is in the instant case. See, e.g., United States Gypsum Co. v. Admiral Insurance Co.,

(1994) (“By agreement among the parties, this coverage trial was

limited to eight specific underlying cases” that had been resolved, while approximately 200

remained pending). In some of the other cases, the courts were considering section 2­

619(a)(3) of the Code, which involves duplicative litigation and is not at issue here. See

Zurich Insurance Co. v. Baxter International, Inc.,

(1996); John Crane

Inc. v. Admiral Insurance Co.,

(2009).

¶ 79 Additionally, the mere fact that other courts have chosen to proceed in this manner does

not mean that proceeding to consider coverage issues in the settled lawsuits here is required.

As noted, “[t]he decision to grant or deny a motion to stay will not be overturned unless the

court abused its discretion.” Guarantee Trust Life Insurance,

,

36

No. 1-16-1785

¶ 35; Cholipski,

. “The circuit court may stay proceedings as

part of its inherent authority to control the disposition of cases before it. [Citation.] The court

may consider factors such as the orderly administration of justice and judicial economy in

determining whether to stay proceedings.” Philips Electronics,

.

¶ 80 In the case at bar, the court found that it could not adjudicate coverage issues in the two

underlying lawsuits that had settled, since a ruling concerning those cases could still have a

collateral estoppel effect on the remaining underlying plaintiffs. The court further noted that

the Foundation also had third-party complaints pending “which could be impacted by a

ruling by this Court.” We cannot find that the trial court’s decision to take the more cautious

route and wait until the resolution of all of the underlying lawsuits constituted an abuse of

discretion.

¶ 81 Continental argues that staying the coverage litigation for the settled cases would unduly

prejudice the insurer by delaying resolution of the litigation. However, proceeding with the

litigation would prejudice the underlying plaintiffs and the Foundation by impacting their

ability to litigate the underlying lawsuits and the third-party complaint. We thus cannot find

that the trial court’s decision in the instant case to favor the interests of the underlying

litigants constituted an abuse of discretion merely because it would delay resolution of

Continental’s claims.

¶ 82 CONCLUSION

¶ 83 For the reasons set forth above, the trial court did not abuse its discretion in staying

consideration of coverage issues where its factual determinations in the coverage litigation

could have an effect on the ultimate facts at issue in the underlying lawsuits. The trial court

also did not abuse its discretion in proceeding to consider whether the allegations of the

37

No. 1-16-1785

underlying complaints set forth facts that arguably fell within the policies’ coverage such that

it gave rise to a duty to defend. Finally, the trial court did not abuse its discretion in declining

to adjudicate coverage issues on the two underlying lawsuits that had settled.

¶ 84 Affirmed.

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