{ "id": 1096620, "name": "WILLIAM J. TEMPLEMAN COMPANY et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "William J. Templeman Co. v. Liberty Mutual Insurance", "decision_date": "2000-08-15", "docket_number": "No. 1-99-3104", "first_page": "379", "last_page": "390", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 379" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "570 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "621", "parenthetical": "\"It is not the form of the pleadings but it is the nature of the insured's conduct which determines coverage\"" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527210 ], "year": 1991, "pin_cites": [ { "page": "729", "parenthetical": "\"It is not the form of the pleadings but it is the nature of the insured's conduct which determines coverage\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0719-01" ] }, { "cite": "717 N.E.2d 485", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "488", "parenthetical": "existence of an ambiguity in an insurance policy is a question of law for the court" } ], "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173597 ], "year": 1999, "pin_cites": [ { "page": "191", "parenthetical": "existence of an ambiguity in an insurance policy is a question of law for the court" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0187-01" ] }, { "cite": "655 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "846", "parenthetical": "\"The construction of an insurance policy and its provisions is a question of law\"" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198897 ], "year": 1995, "pin_cites": [ { "page": "529", "parenthetical": "\"The construction of an insurance policy and its provisions is a question of law\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0520-01" ] }, { "cite": "458 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "481", "parenthetical": "a contract \"provision is not rendered ambiguous simply because the parties do not agree on its meaning\"" } ], "opinion_index": 0 }, { "cite": "99 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163537 ], "year": 1983, "pin_cites": [ { "page": "288", "parenthetical": "a contract \"provision is not rendered ambiguous simply because the parties do not agree on its meaning\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0284-01" ] }, { "cite": "523 N.E.2d 1043", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551286 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0678-01" ] }, { "cite": "30 A.L.R.4th 572", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1984, "pin_cites": [ { "page": "583-85" } ], "opinion_index": 0 }, { "cite": "188 Mont. 534", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2560704 ], "year": 1980, "pin_cites": [ { "page": "544", "parenthetical": "\"malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of termination of the former proceeding in favor of the defendant therein\"" } ], "opinion_index": 0, "case_paths": [ "/mont/188/0534-01" ] }, { "cite": "32 Ill. App. 3d 853", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2797231 ], "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0853-01" ] }, { "cite": "393 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "1370" } ], "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268828 ], "year": 1979, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0760-01" ] }, { "cite": "622 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "107", "parenthetical": "\"A motion is an application to the court for a ruling or an order in a pending case. *** A pleading, in contrast, consists of a party's formal allegations of his claims or defenses\"" } ], "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963211 ], "year": 1993, "pin_cites": [ { "page": "413", "parenthetical": "\"A motion is an application to the court for a ruling or an order in a pending case. *** A pleading, in contrast, consists of a party's formal allegations of his claims or defenses\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0411-01" ] }, { "cite": "548 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510992 ], "year": 1989, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0514-01" ] }, { "cite": "637 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "638", "parenthetical": "\"the circuit court's jurisdiction, while plenary, is not boundless, and where no justiciable issue is presented to the court through proper pleadings, the court cannot adjudicate an issue sua sponte\"" } ], "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680600 ], "year": 1994, "pin_cites": [ { "page": "707", "parenthetical": "\"the circuit court's jurisdiction, while plenary, is not boundless, and where no justiciable issue is presented to the court through proper pleadings, the court cannot adjudicate an issue sua sponte\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0701-01" ] }, { "cite": "11 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1937, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 363", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3313901 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/ill-app/292/0363-01" ] }, { "cite": "185 N.Y.S.2d 462", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "466" } ], "opinion_index": 0 }, { "cite": "16 Misc. 2d 972", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1043054 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/misc2d/16/0972-01" ] }, { "cite": "534 N.E.2d 1066", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607115 ], "year": 1989, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0752-01" ] }, { "cite": "473 N.E.2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490015 ], "year": 1984, "pin_cites": [ { "page": "1097" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/1089-01" ] }, { "cite": "355 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "28", "parenthetical": "\"If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy the duty to defend has been established\"" } ], "opinion_index": 0 }, { "cite": "64 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429542 ], "year": 1976, "pin_cites": [ { "page": "193", "parenthetical": "\"If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy the duty to defend has been established\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0187-01" ] }, { "cite": "641 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "836", "parenthetical": "\"We know of no court, adopting Rule 137 *** which has held that independent actions for malicious prosecution and abuse of process ceased to exist, nor are we prepared to so hold\"" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333117 ], "year": 1994, "pin_cites": [ { "page": "516", "parenthetical": "\"We know of no court, adopting Rule 137 *** which has held that independent actions for malicious prosecution and abuse of process ceased to exist, nor are we prepared to so hold\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0513-01" ] }, { "cite": "713 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "\"A party cannot be afforded relief, despite the admission of evidence supporting such relief, absent a corresponding pleading ***\"" } ], "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336076 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "184", "parenthetical": "\"A party cannot be afforded relief, despite the admission of evidence supporting such relief, absent a corresponding pleading ***\"" }, { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0182-01" ] }, { "cite": "685 N.E.2d 1347", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1354" }, { "page": "1351", "parenthetical": "\"The necessity of alleging a favorable termination in actions for malicious prosecution is a long-standing and deeply rooted principle in this court's jurisprudence\"" } ], "opinion_index": 0 }, { "cite": "177 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317124 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "280" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0267-01" ] }, { "cite": "549 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "966", "parenthetical": "punitive damages designed to punish and deter" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2497885 ], "year": 1990, "pin_cites": [ { "page": "393", "parenthetical": "punitive damages designed to punish and deter" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0390-01" ] }, { "cite": "713 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "1239", "parenthetical": "Rule 137 sanctions are penal in nature" } ], "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336069 ], "year": 1999, "pin_cites": [ { "page": "243", "parenthetical": "Rule 137 sanctions are penal in nature" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0234-01" ] }, { "cite": "546 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "530", "parenthetical": "\"purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants\"" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 308", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569838 ], "year": 1989, "pin_cites": [ { "page": "321", "parenthetical": "\"purpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0308-01" ] }, { "cite": "1 N.E.2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1936, "pin_cites": [ { "page": "518", "parenthetical": "in a malicious prosecution case in \"the absence of proof of malice, appellee would only be entitled to recover compensatory damages\"" } ], "opinion_index": 0 }, { "cite": "285 Ill. App. 242", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3355826 ], "year": 1936, "pin_cites": [ { "page": "253", "parenthetical": "in a malicious prosecution case in \"the absence of proof of malice, appellee would only be entitled to recover compensatory damages\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app/285/0242-01" ] }, { "cite": "457 So. 2d 428", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7612322 ], "year": 1984, "pin_cites": [ { "page": "432", "parenthetical": "award of punitive damages requires a higher degree of malice than is necessary merely to prove malicious prosecution" } ], "opinion_index": 0, "case_paths": [ "/so2d/457/0428-01" ] }, { "cite": "511 N.E.2d 714", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "716", "parenthetical": "malicious prosecution action below tried to a jury" } ], "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3577708 ], "year": 1987, "pin_cites": [ { "page": "500-01", "parenthetical": "malicious prosecution action below tried to a jury" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0497-01" ] }, { "cite": "293 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "7", "parenthetical": "a \"suit for malicious prosecution is a common law tort action\"" } ], "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 738", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850986 ], "year": 1973, "pin_cites": [ { "page": "740", "parenthetical": "a \"suit for malicious prosecution is a common law tort action\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0738-01" ] }, { "cite": "356 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "1156", "parenthetical": "construing section 41 of the Civil Practice Act, an earlier predecessor to Rule 137" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2727496 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "132", "parenthetical": "construing section 41 of the Civil Practice Act, an earlier predecessor to Rule 137" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0124-01" ] }, { "cite": "466 N.E.2d 1119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1123" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596932 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "416" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0411-01" ] }, { "cite": "648 N.E.2d 1108", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1114" }, { "page": "1114", "parenthetical": "1995" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249171 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "737" }, { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0728-01" ] }, { "cite": "687 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 9, "year": 1997, "pin_cites": [ { "page": "1102" }, { "page": "1102" }, { "page": "1102" }, { "page": "1102" }, { "page": "1102" }, { "page": "1102", "parenthetical": "Illinois upholds the distinction between malicious prosecution and Rule 137 sanctions" }, { "page": "1102" }, { "page": "1102" } ], "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847479 ], "weight": 9, "year": 1997, "pin_cites": [ { "page": "135" }, { "page": "134" }, { "page": "135" }, { "page": "134-35" }, { "page": "135" }, { "page": "134" }, { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0129-01" ] } ], "analysis": { "cardinality": 1124, "char_count": 29554, "ocr_confidence": 0.761, "pagerank": { "raw": 1.9733561889361913e-07, "percentile": 0.7395844313703231 }, "sha256": "d902a3fb2099c6d80b95156dbbc3d246342f52840fe80361e8b4a840734a0d2f", "simhash": "1:03f4f4dc0d6375f7", "word_count": 4798 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM J. TEMPLEMAN COMPANY et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nPlaintiffs William J. Templeman Company and William J. Temple-man (collectively Templeman or plaintiffs) appeal from an order of the circuit court of Cook County granting summary judgment in favor of defendant Liberty Mutual Insurance Company (Liberty). The circuit court found that two insurance policies (collectively the policy) issued by Liberty to Templeman which covered claims against Templeman for malicious prosecution did not cover liability incurred by Temple-man due to sanctions imposed by the circuit court pursuant to Illinois Supreme Court Rule 137 (155 111. 2d R. 137). On appeal Templeman argues that the trial court erred because the malicious prosecution language in the policy provides coverage for its conduct that was found to be sanctionable; because its conduct potentially raised liability under the policy and thus gave rise to a duty on the part of Liberty to defend Templeman; and because the term \u201cmalicious prosecution\u201d in the insurance policies is ambiguous and should thus be construed in favor of Templeman. For the reasons discussed below, we affirm.\nBACKGROUND\nThere is no dispute as to the underlying facts in this case. This litigation arose out of a construction dispute surrounding the building of an Embassy Suites hotel in Rosemont, Illinois. The hotel in question was owned by E.S. O\u2019Hare Associates (O\u2019Hare) and the general contractor for the project was W.E. O\u2019Neil Construction Company (O\u2019Neil). O\u2019Neil entered into a subcontract with Templeman\u2019s predecessor in interest, Premier Electric Company (Premier), whereby Premier would install fire alarm and detection equipment in the hotel. Premier later sued O\u2019Hare and O\u2019Neil seeking to recover for extra work performed on the Embassy Suites project and for interference and delays in its performance of the subcontract which it alleged were caused by O\u2019Neil and O\u2019Hare. The trial court granted partial summary judgment in favor of O\u2019Neil. O\u2019Neil then moved for sanctions pursuant to Illinois Supreme Court Rule 137 (155 Ill. 2d R. 137) against Templeman and its attorney, Walter J. Trittipo (Trittipo).\nOn December 13, 1995, the trial court found that Templeman and Trittipo had engaged in sanctionable conduct, a decision that was ultimately upheld on appeal. William J. Templeman Co. v. W.E. O\u2019Neil Construction Co., Nos. 1 \u2014 96\u20143434, 1 \u2014 96\u20143557 cons. (1998) (unpublished order under Supreme Court Rule 23). On January 8, 1996, Templeman gave written notice to Liberty of its claim for coverage and requested that Liberty defend it against the sanctions proceedings that were still ongoing, as the court had not yet decided the amount of the sanctions. Templeman\u2019s insurance policy provided for coverage of claims against Templeman for malicious prosecution. Liberty never responded to Templeman\u2019s notice of its claims. Templeman thereupon filed a declaratory judgment action against Liberty seeking coverage. The trial court granted summary judgment in favor of Liberty. This appeal followed.\nANALYSIS\nThe plaintiffs first argue that the malicious prosecution language in the policy is sufficient to provide coverage for the liability that plaintiffs incurred as a result of conduct that the trial court found sanctionable pursuant to Rule 137. We disagree.\nThe relevant policy language is as follows:\n\u201c1. Insuring Agreement\na. We will pay those sums that the insured becomes legally obligated to pay as damages because of \u2018personal injury\u2019 *** to which this coverage part applies. We will have the right and duty to defend any \u2018suit\u2019 seeking those damages.\n* * *\nb. This insurance applies to:\n(1) \u2018Personal injury\u2019 caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you;\n* * *\n10. \u2018Personal injury\u2019 means injury, other than \u2018bodily injury,\u2019 arising out of one or more of the following offenses:\n* * *\nb. Malicious prosecution]].]\u201d\nAs is evident from the foregoing language the policy provides coverage for malicious prosecution, a specific common law tort. \u201cThe common law tort of malicious prosecution contains significant strictures and rules.\u201d Spiegel v. Zurich Insurance Co., 293 Ill. App. 3d 129, 135, 687 N.E.2d 1099, 1102 (1997). Although the conduct that would support a finding of sanctions under Rule 137 may well overlap with the elements necessary to support a finding of malicious prosecution, the two categories are nevertheless discrete and distinct, and under the prevailing precedent, coverage for malicious prosecution does not automatically extend coverage for conduct sanctionable under Rule 137.\nThe case of Spiegel v. Zurich Insurance Co., 293 Ill. App. 3d 129, 687 N.E.2d 1099, is on point. The plaintiff in Spiegel was sanctioned by the United States Court of Appeals for the Seventh Circuit under Rule 38 of the Federal Rules of Appellate Procedure (Fed. R. App. P 38) for filing a frivolous appeal. The plaintiff then claimed coverage (which the defendant insurance company denied) under his insurance policy issued by the defendant, which provided coverage for \u201cmalicious prosecution.\u201d The Spiegel court held that where an insurance policy provided coverage for claims of malicious prosecution against the insured, the coverage did not extend to liability incurred as a result of sanctions imposed by a federal court for the filing of a frivolous appeal.\nThe Spiegel court reasoned that, \u201cIllinois law recognizes and upholds the distinction between the tort of malicious prosecution and the remedy of pleading-related sanctions available under Illinois Supreme Court Rule 137.\u201d Spiegel, 293 Ill. App. 3d at 134, 687 N.E.2d at 1102, citing Levin v. King, 271 Ill. App. 3d 728, 737, 648 N.E.2d 1108, 1114 (1995). \u201cThe common law tort of malicious prosecution contains significant strictures and rules.\u201d Spiegel, 293 Ill. App. 3d at 135, 687 N.E.2d at 1102. Specifically, to prevail on a malicious prosecution claim the plaintiff must prove a special injury, an element that is absent from Rule 137 sanctions. The Spiegel court further stated that no \u201ccases have been advanced by the parties or found in research that equate malicious prosecution and court-imposed sanctions.\u201d Spiegel, 293 Ill. App. 3d at 134-35, 687 N.E.2d at 1102. The court therefore concluded that \u201cjudicially imposed sanctions are not within the ambit of the term \u2018malicious prosecution\u2019 in the subject insurance policies\u201d and that \u201ca claim of malicious prosecution is not equivalent to sanctions imposed by a court for purposes of insurance coverage, as a matter of law.\u201d Spiegel, 293 Ill. App. 3d at 135, 687 N.E.2d at 1102.\nWe are not persuaded by the plaintiffs\u2019 , insinuations that the Spiegel court was \u201cplainly wrong\u201d in stating that no Illinois cases equate malicious prosecution with court-imposed sanctions pursuant to Rule 137, as the authorities cited by the plaintiffs are readily distinguished. In Sanelli v. Glenview State Bank, 126 Ill. App. 3d 411, 416, 466 N.E.2d 1119, 1123 (1984), the court stated that \u201c[s]ection 2 \u2014 611 [the predecessor to Rule 137] permits sanctions against a party for conduct in the nature of malicious prosecution accomplished by false pleadings or abuse of judicial process which goes to the merits of the proceedings.\u201d See also Tabor & Co. v. Gorenz, 43 Ill. App. 3d 124, 132, 356 N.E.2d 1150, 1156 (1976) (construing section 41 of the Civil Practice Act, an earlier predecessor to Rule 137). Sanelli and Tabor do not equate Rule 137 sanctions and claims for malicious prosecution. Rather, the cases provide that Rule 137 sanctions \u201cconduct in the nature of malicious prosecution.\u201d (Emphasis added.) Sanelli, 126 Ill. App. 3d at 416; Tabor, 43 Ill. App. 3d at 132. Clearly, the teaching of Sanelli and Tabor on this point is that the conduct which is sanctionable pursuant to Rule 137 overlaps with that which is actionable through the tort of malicious prosecution. The overlap in the conduct proscribed does not equate these two distinct proceedings themselves and does not contravene the holding of the Spiegel court that the coverage provided for the one does not extend to the other.\nThe plaintiff nevertheless contends that even though coverage for malicious prosecution and coverage for Rule 137 sanctions are not interchangeable, they should be, when as here the specific conduct found to be sanctionable pursuant to Rule 137 is equivalent to the elements required to prove a claim for malicious prosecution. Here too we disagree.\nWhile we are aware that the range of conduct that is sanctionable pursuant to Rule 137 may overlap with conduct that is actionable under the law of malicious prosecution, the conduct need not so overlap. Thus, even in a specific case where the conduct alleged is actionable under either theory, coverage for one does not by itself extend coverage to the other since genetically malicious prosecution and sanctions under Rule 137 present different risks.\nThe different risks associated with Rule 137 sanctions and malicious prosecution are illustrated by several critical differences between the two actions. For example, malicious prosecution is a common law tort action (Kent v. Muscarello, 9 Ill. App. 3d 738, 740, 293 N.E.2d 6, 7 (1973) (a \u201csuit for malicious prosecution is a common law tort action\u201d)) which may be tried to a jury (Mack v. First Security Bank of Chicago, 158 Ill. App. 3d 497, 500-01, 511 N.E.2d 714, 716 (1987) (malicious prosecution action below tried to a jury)), while Rule 137 sanctions are a creation of our supreme court (177 Ill. 2d R. 3) and are determined by the trial judge (155 Ill. 2d R. 137). There is also a fundamental difference in the nature of the award that may be recovered. Damages for malicious prosecution are compensatory and not intended to punish the defendant, although they may have a punitive aspect in that punitive damages may be awarded. See AAA Employment, Inc. v. Weed, 457 So. 2d 428, 432 (Ala. Civ. App. 1984) (award of punitive damages requires a higher degree of malice than is necessary merely to prove malicious prosecution); Thieme v. MacArthur, 285 Ill. App. 242, 253, 1 N.E.2d 514, 518 (1936) (in a malicious prosecution case in \u201cthe absence of proof of malice, appellee would only be entitled to recover compensatory damages\u201d); see generally 25 Ill. L. & Prac. Malicious Prosecution \u00a7 44 (1956). See also Wilson v. Hoffman Group Inc., 131 Ill. 2d 308, 321, 546 N.E.2d 524, 530 (1989) (\u201cpurpose of compensatory tort damages is to compensate the plaintiff for his injuries, not to punish defendants\u201d). Sanctions, while they may have a compensatory feature, are inherently penal in nature (Belfour v. Schaumburg Auto, 306 Ill. App. 3d 234, 243, 713 N.E.2d 1233, 1239 (1999) (Rule 137 sanctions are penal in nature)) and are thus analogous to punitive damages, which are designed to punish wrongdoers and deter others from the same conduct (Jines v. Seiber, 193 Ill. App. 3d 390, 393, 549 N.E.2d 964, 966 (1990) (punitive damages designed to punish and deter)).\nWhile the specific conduct in any given instance may equally support the granting of Rule 137 sanctions and a finding of malicious prosecution, coverage is not provided on the basis of the specific conduct involved, which may vary from case to case. Rather, coverage is provided generically for a range of conduct subsumed under a given category of risk. Thus, coverage provided for malicious prosecution is restricted to the risks defined by the substantiative and procedural elements associated with that theory of action and would not extend to other theories of action that would grant relief less restrictively even though the specific conduct involved in any given instance might overlap between the two. In this case not only are the risks to the insurer different as between the two, but they may be viewed as generically greater with respect to Rule 137 sanctions than for liability under a theory of malicious prosecution.\nGenerically there is a wide difference between the elements of malicious prosecution and what must be proved in order to prevail on a motion for Rule 137 sanctions. To prevail in an action for malicious prosecution, a plaintiff must prove that he has sustained a special injury above and beyond the trouble of ordinary legal controversy. Cult Awareness Network v. Church of Scientology International, 177 Ill. 2d 267, 280, 685 N.E.2d 1347, 1354 (1997). Rule 137 does not have a \u201cspecial injury\u201d requirement, and this court has refused to depart from that requirement in the tort of malicious prosecution for that specific reason. Levin, 271 Ill. App. 3d at 737, 648 N.E.2d at 1114 (1995) (upholding the special injury rule in a malicious prosecution case partly because our \u201csupreme court has created a remedy for suits that are not well grounded in fact or law: *** Rule 137\u201d), construed in Spiegel, 293 Ill. App. 3d at 134, 687 N.E.2d at 1102 (Illinois upholds the distinction between malicious prosecution and Rule 137 sanctions). Thus, genetically there are fewer impediments toward obtaining relief under Rule 137 than there are to obtaining relief for malicious prosecution.\nHowever, even if for purposes of coverage the focus would be on the specific conduct involved, the insurance risks under Rule 137 sanctions would still be different and in all likelihood greater than those for malicious prosecution. This disparity between the risks insured under malicious prosecution coverage and coverage for Rule 137 sanctions even where the specific conduct is the same is manifest procedurally in, among other things, how the two are brought to court as well as who judges the facts and what sort of damages are awarded. Malicious prosecution actions are initiated through the filing of a complaint or other pleading and constitute a separate and independent cause of action. See generally 735 ILCS 5/2 \u2014 201 (West 1996) (an action shall be commenced by filing a complaint unless otherwise provided by statute); Zygmuntowicz v. Pepper Construction Co., 306 Ill. App. 3d 182, 184, 713 N.E.2d 777 (1999) (\u201cA party cannot be afforded relief, despite the admission of evidence supporting such relief, absent a corresponding pleading ***\u201d). Safeway Insurance Co. v. Spinak, 267 Ill. App. 3d 513, 516, 641 N.E.2d 834, 836 (1994) (\u201cWe know of no court, adopting Rule 137 *** which has held that independent actions for malicious prosecution and abuse of process ceased to exist, nor are we prepared to so hold\u201d). On the other hand, sanctions under Rule 137 may be imposed by the court sua sponte or initiated by the motion of an adverse party in the context of the underlying litigation. 155 Ill. 2d R. 137 (\u201cno violation or alleged violation of this rule shall give rise to a separate civil suit\u201d). These present additional reasons why there is greater ease and accessability to obtain relief under Rule 137 than there is under a malicious prosecution action, thus presenting an increased coverage risk for the one as opposed to the other even where the specific conduct involved would support recovery under either.\nHowever, plaintiff contends that even if the policy\u2019s coverage for malicious prosecution does not extend to coverage for Rule 137 sanctions there would still be a duty to defend in this case. Such a duty would exist because a Rule 137 motion for sanctions could potentially transform into a malicious prosecution action and an insurer has a duty to defend whenever an action is potentially within the policy\u2019s coverage. Plaintiff further contends that since the defendant breached its contractual duty to defend it is now estopped from raising policy defenses or exclusions. Once again, we disagree.\nAn insurer has a duty to defend its insured where the facts alleged against the insured are within or potentially within the coverage of the policy. Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28 (1976) (\u201cIf the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy the duty to defend has been established\u201d). \u201cThere is no question that the allegations of the complaint and not the theory determine whether there is a duty to defend.\u201d Management Support Associates v. Union Indemnity Insurance Co., 129 Ill. App. 3d 1089, 1097, 473 N.E.2d 405, 411 (1984). \u201c \u2018Potentially covered\u2019 means that the insurer\u2019s duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the possibility of a recovery under the policy.\u201d Western Casualty & Surety Co. v. Adams County, 179 Ill. App. 3d 752, 756, 534 N.E.2d 1066, 1068 (1989).\nIt is not sufficient that the facts alleged could have been framed in a different proceeding to cover a cause of action that would fall within the policy. Rather, it must be demonstrated that the facts alleged were sufficient to permit recovery for the potentially covered cause of action in the same proceeding in which the action was initiated for the relief that did not in and of itself fall within the covered risks of the policy. In other words, in this case it is not enough that the facts alleged as the basis for the Rule 137 sanctions could have been utilized to support an independent collateral action for malicious prosecution if there was no possibility of recovery for malicious prosecution in the context of the proceeding brought forth to obtain the Rule 137 sanctions.\nWe find the case of Fitzsimmons v. United States Fire Insurance Co., 16 Misc. 2d 972, 185 N.Y.S.2d 462 (1959), to be on point. In Fitzsimmons an alleged employee of the insured alleged injury while on the insured\u2019s premises and instituted a claim for workmen\u2019s compensation benefits. The employer had a comprehensive personal liability insurance policy, which excluded benefits payable or required under workmen\u2019s compensation law. The employer requested that his insurance company defend him against the claim, and the insurance company refused. The employer defeated the claim for compensation on the grounds that the alleged employee did not actually work for him. The court held that the insurer did not have a duty to defend, stating:\n\u201c[T]he claim of the injured third party was presented to the Workmen\u2019s Compensation Board the jurisdiction of which is limited to determination of claims for workmen\u2019s compensation benefits and which was powerless to award damages for any other cause. If the company is not obligated to defend where the only action alleged in the complaint is solely within one of the exclusions of the policy, it is but the logical extension of that rule to hold that the insurer is not obligated to defend claims before the Workmen\u2019s Compensation Board which has jurisdiction only of matters outside the coverage of the policy. There could be no potential action within the coverage of the policy involved in a claim before this tribunal of limited jurisdiction.\u201d (Emphasis added.) Fitzsimmons, 16 Mise. 2d at_, 185 N.Y.S.2d at 466.\nThe case of Brodek v. Indemnity Insurance Co. of North America, 292 Ill. App. 363, 11 N.E.2d 228 (1937), is in a similar vein. The Brodek court held that an insurance company was not required to defend an action at law for injury even if the action stated facts apparently bringing the injury within the policy because a court of law does not have jurisdiction to award worker\u2019s compensation, and the policy only covered worker\u2019s compensation. In Brodek the plaintiff employer had an insurance policy from the defendant insurer that provided coverage for worker\u2019s compensation claims against the employer by its employees. An injured employee failed to make a claim for compensation with the industrial commission and instead filed a suit at law against the employer. The employer asked the insurance company to defend, which it refused to do. On appeal, the employer argued that the employee \u201cin his declaration stated such facts as would have supported a claim for compensation within the coverage of the policy\u201d and that the insurance company was therefore required to defend. 292 Ill. App. 3d at 377. In holding that the insurance company did not violate its duty to defend, the court stated that the \u201cfallacy of this argument lies in the fact that paragraph 1(a) [of the policy] obligates the insurer to pay *** anyone entitled thereto the compensation provided for in the compensation act, and that Brodek [the employee] did not by virtue of his suit in the superior court become entitled to compensation because the making of a claim for compensation is jurisdictional, and before a party may become entitled to compensation such a claim must be made.\u201d (Emphasis added.) Brodek, 292 Ill. App. 3d at 377, 11 N.E.2d at 234. The court thus held that the insurer had no duty to defend.\nSimilarly, in the case at bar, even if the facts alleged in the motion for sanctions support an action for malicious prosecution, a court considering a Rule 137 motion for sanctions lacks jurisdiction to adjudicate a claim for malicious prosecution in the absence of an independent complaint framing that cause of action. The circuit court does not have jurisdiction to adjudicate an issue not presented to it through proper pleadings. See Ligon v. Williams, 264 Ill. App. 3d 701, 707, 637 N.E.2d 633, 638 (1994) (\u201cthe circuit court\u2019s jurisdiction, while plenary, is not boundless, and where no justiciable issue is presented to the court through proper pleadings, the court cannot adjudicate an issue sua sponte\u201d); Zygmuntowicz, 306 Ill. App. 3d at 184, 713 N.E.2d at 779 (\u201cThe filing of a complaint or petition operates to invoke the court\u2019s authority to exercise its jurisdiction\u201d); accord In re Marriage of Fox, 191 Ill. App. 3d 514, 520, 548 N.E.2d 71, 75 (1989). The plaintiffs never presented any pleadings seeking relief for malicious prosecution. Rather, the allegations at issue are contained in a Rule 137 motion for sanctions, which is not a pleading. See In re Marriage of Sutherland, 251 Ill. App. 3d 411, 413, 622 N.E.2d 105, 107 (1993) (\u201cA motion is an application to the court for a ruling or an order in a pending case. *** A pleading, in contrast, consists of a party\u2019s formal allegations of his claims or defenses\u201d). Nor was there any possibility that the Rule 137 motion for sanctions could potentially be transformed into an action for malicious prosecution because the adjudication of such an action requires the termination of the underlying proceeding. \u201cIt is well settled that \u2018the termination of a prior proceeding in favor of the plaintiff *** is an essential element in a cause of action for malicious prosecution which must be factually set forth in the complaint.\u2019 \u201d Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill. App. 3d 760, 766, 393 N.E.2d 1365, 1370 (1979), quoting Kay v. Boehm, 32 Ill. App. 3d 853, 855 (affirming dismissal of counterclaim for malicious prosecution where no facts in the complaint alleged the underlying (and ongoing) proceedings had terminated). While our supreme court has held that such prior termination need not be on the merits, prior termination for whatever reason must be factually alleged in the complaint. Cult Awareness Network, 177 Ill. 2d at 272, 685 N.E.2d at 1351 (\u201cThe necessity of alleging a favorable termination in actions for malicious prosecution is a long-standing and deeply rooted principle in this court\u2019s jurisprudence\u201d). Thus, a malicious prosecution claim cannot be prosecuted within the context of the underlying proceeding by counterclaim or otherwise which is alleged to be malicious, as that proceeding has not yet terminated. First Trust Co. v. McKenna, 188 Mont. 534, 544, 614 E2d 1027, 1033 (1980) (\u201cmalicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of termination of the former proceeding in favor of the defendant therein\u201d); see generally Annotation, Nature of Termination of Civil Action Required to Satisfy Element of Favorable Termination to Support Action for Malicious Prosecution, 30 A.L.R.4th 572, 583-85 (1984). Consequently, since the claim for sanctions under Rule 137 must be brought within the context of the underlying claim there is no potential for recovery for malicious prosecution within that same proceeding. 155 111. 2d. R. 137 (\u201cAll proceedings under this rule shall be brought within the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate civil suit, but shall be considered a claim within the same civil action\u201d).\nFinally, Aetna Life & Surety Co. v. Northern Trust Co., 169 Ill. App. 3d 678, 523 N.E.2d 1043 (1988), cited by the defendant, is inapposite. In Aetna, Northern Trust claimed Aetna had a duty to defend it in a lawsuit because Northern Trust\u2019s insurance policy with Aetna provided that Aetna would defend Northern Trust with regard to lawsuits alleging that Northern Trust committed conduct amounting to malicious prosecution. The court held that Aetna had no such duty as the suit against Northern Trust was not founded on a theory of malicious prosecution, but on a theory of breach of fiduciary duty. In what we find to be dictum the court stated, \u201chad Baron\u2019s complaint [against Northern Trust] contained a count that inartfully or incompletely alleged a cause of action sounding in malicious prosecution or a closely related legal theory *** or if the underlying complaint had contained factual allegations amounting in substance to all of the elements necessary for malicious prosecution\u201d (169 Ill. App. 3d at 680), then Northern Trust\u2019s assertion that Aetna had a duty to defend it might have been meritorious. That dictum would in any event not extend to instances such as the one at bar where the action was before the court by motion rather than by a complaint and where relief for malicious protection could not be forthcoming within the context of that proceeding.\nThe plaintiffs next argue that the term \u201cmalicious prosecution\u201d in the insurance policies is ambiguous and that such ambiguity should be construed in their favor. In support the defendant argues that the ambiguity is demonstrated by the differing interpretations of the parties in this case, the lack of a definition of \u201cmalicious prosecution\u201d in the policy and the deposition testimony of plaintiffs\u2019 expert witness. We disagree.\nWe do not find the term \u201cmalicious prosecution\u201d as deployed in the policy to be ambiguous. As we discussed in detail above, the malicious prosecution language does not create coverage for liability incurred as a result of Rule 137 sanctions. Spiegel, 293 Ill. App. 3d at 135, 687 N.E.2d at 1102. A term is not rendered ambiguous simply because one party asserts it to be so. Johnstowne Centre Partnership v. Chin, 99 Ill. 2d 284, 288, 458 N.E.2d 480, 481 (1983) (a contract \u201cprovision is not rendered ambiguous simply because the parties do not agree on its meaning\u201d). Nor does the lack of a definition of a term in an insurance policy render that term ambiguous. Harleysville Mutual Insurance Co. v. Packer, 60 E3d 1116, 1121 (4th Cir. 1995); 11 R. Lord, Williston on Contracts \u00a7 30:4 (4th ed. 1999) (\u201cambiguity does not necessarily exist simply because a contract requires interpretation or fails to define a term\u201d). Finally, as the construction and interpretation of an insurance policy is a question of law, we fail to see the relevance of plaintiffs\u2019 expert witness. Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co., 166 Ill. 2d 520, 529, 655 N.E.2d 842, 846 (1995) (\u201cThe construction of an insurance policy and its provisions is a question of law\u201d); McDonald\u2019s Operators Risk Management Ass\u2019n v. Core-source, Inc., 307 Ill. App. 3d 187, 191, 717 N.E.2d 485, 488 (1999) (existence of an ambiguity in an insurance policy is a question of law for the court).\nWe find the meaning of the term \u201cmalicious prosecution\u201d in this case is clear and unambiguous. The term has long denoted a separate and independent tort catalogued and discussed by Blackstone in the eighteenth century. See 3 William Blackstone, Commentaries *126 (Thomas M. Cooley ed., Callaghan & Co. 1899) (1765). The clear import of that term denotes coverage for an insured who is sued for the established tort of malicious prosecution. See generally Spiegel, 293 Ill. App. 3d at 135, 687 N.E.2d at 1102.\nAccordingly, for the reasons discussed above, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCOUSINS, RJ., and McBRIDE, J., concur.\nThe plaintiffs assert that it is their conduct rather than the form of the pleadings which determines coverage, citing Travelers Insurance Cos. v. P.C. Quote, Inc., 211 Ill. App. 3d 719, 729, 570 N.E.2d 614, 621 (1991) (\u201cIt is not the form of the pleadings but it is the nature of the insured\u2019s conduct which determines coverage\u201d). We note, however, that the quote from Travelers is dictum, as the Travelers court held that the insurance company had no duty to defend its insured. Furthermore, the quote is taken out of context. Travelers is a declaratory judgment case discussing the insurer\u2019s duty to defend, not the duty to indemnify.", "type": "majority", "author": "JUSTICE GORDON" } ], "attorneys": [ "Robert J. Shelist, of Law Offices of Robert J. Shelist, of Chicago, for appellants.", "Steven B. Belgrade and George M. Velcich, both of Belgrade & O\u2019Donnell, EC., of Chicago, for appellee." ], "corrections": "", "head_matter": "WILLIAM J. TEMPLEMAN COMPANY et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1-99-3104\nOpinion filed August 15, 2000.\nRobert J. Shelist, of Law Offices of Robert J. Shelist, of Chicago, for appellants.\nSteven B. Belgrade and George M. Velcich, both of Belgrade & O\u2019Donnell, EC., of Chicago, for appellee." }, "file_name": "0379-01", "first_page_order": 399, "last_page_order": 410 }