{ "id": 521976, "name": "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. ROBERTA ENRIGHT, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants-Appellees (Matthew S. Burnett et al., Defendants); AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. ACE AMERICAN INSURANCE COMPANY, f/k/a Cigna Insurance Company, Defendant and Counterplaintiff-Appellant (Roberta Enright, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants and Counterdefendants-Appellees; Midwestern Regional Medical Center, Inc., et al., Defendants and Counter-defendants)", "name_abbreviation": "American Family Mutual Insurance v. Enright", "decision_date": "2002-11-01", "docket_number": "Nos. 2\u201401\u20140630; 2\u201401\u20140653 cons.", "first_page": "1026", "last_page": "1043", "citations": [ { "type": "official", "cite": "334 Ill. App. 3d 1026" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 Ill. App. 2d 184", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2538378 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "192" }, { "page": "192", "parenthetical": "policy specifically defined insured to include any executive officer, director, or stockholder while acting within the scope of his duties as such" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0184-01" ] }, { "cite": "567 N.Y.S.2d 122", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1991, "pin_cites": [ { "parenthetical": "claim against hospital for negligent hiring, training, and supervision of physician accused of sexual abuse of patient does not constitute medical incident, which is defined as an act or omission arising out of furnishing of professional health care services" } ], "opinion_index": 0 }, { "cite": "171 A.D.2d 639", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1033580 ], "year": 1991, "pin_cites": [ { "parenthetical": "claim against hospital for negligent hiring, training, and supervision of physician accused of sexual abuse of patient does not constitute medical incident, which is defined as an act or omission arising out of furnishing of professional health care services" } ], "opinion_index": 0, "case_paths": [ "/ad2d/171/0639-01" ] }, { "cite": "575 N.W2d 598", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11876820 ], "year": 1998, "pin_cites": [ { "parenthetical": "regarding allegations of employees's sexual abuse, clinic's negligence in hiring and supervising employee is in the nature of administrative actions that do not fall within ambit of policy provision of professional services" } ], "opinion_index": 0, "case_paths": [ "/nw2d/575/0598-01" ] }, { "cite": "291 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456161 ], "year": 1997, "pin_cites": [ { "page": "895", "parenthetical": "focus must be on whether the claim is seeking to impose liability for acts taken in the course of the professional's training, skill, experience, or knowledge" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0888-01" ] }, { "cite": "265 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872478 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "541" }, { "page": "538" }, { "page": "541-42" }, { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0533-01" ] }, { "cite": "842 F. Supp. 1151", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3846713 ], "year": 1994, "pin_cites": [ { "parenthetical": "allegations against insured determines duty to defend for negligent hiring of employee who sexually molested a minor; otherwise it would dissolve distinction between intentional and negligent conduct" } ], "opinion_index": 0, "case_paths": [ "/f-supp/842/1151-01" ] }, { "cite": "738 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "intentions of molester immaterial to determining coverage for alleged negligent hiring" } ], "opinion_index": 0 }, { "cite": "90 Ohio St. 3d 388", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1121466 ], "year": 2000, "pin_cites": [ { "parenthetical": "intentions of molester immaterial to determining coverage for alleged negligent hiring" } ], "opinion_index": 0, "case_paths": [ "/ohio-st-3d/90/0388-01" ] }, { "cite": "323 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171558 ], "year": 2001, "pin_cites": [ { "page": "519", "parenthetical": "under a theory of negligent hiring, the proximate cause of plaintiffs injuries is the employer's negligence in hiring the employee, rather than the employee's wrongful act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0514-01" ] }, { "cite": "819 F. Supp. 756", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1505784 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "757" }, { "page": "759" }, { "page": "760" }, { "page": "760" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/f-supp/819/0756-01" ] }, { "cite": "268 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381913 ], "year": 1994, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0501-01" ] }, { "cite": "298 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073692 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "507" }, { "page": "508" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0495-01" ] }, { "cite": "141 Ill. App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3497014 ], "year": 1986, "pin_cites": [ { "page": "136", "parenthetical": "intentional tort of employer not covered; negligent hiring potentially covered" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0133-01" ] }, { "cite": "678 N.E.2d 844", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11979634 ], "year": 1997, "pin_cites": [ { "page": "846" } ], "opinion_index": 0, "case_paths": [ "/ne2d/678/0844-01" ] }, { "cite": "250 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2917491 ], "year": 1993, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0333-01" ] }, { "cite": "156 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777543 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "390" }, { "page": "391" }, { "page": "393" }, { "page": "393" }, { "page": "398" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0384-01" ] }, { "cite": "337 Ill. App. 498", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5012518 ], "year": 1949, "pin_cites": [ { "page": "509", "parenthetical": "\"[I]f the language of the insurance policy is susceptible to two interpretations, the question of intention is not germane, and that interpretation which will not defeat the insured's claim will be adopted\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app/337/0498-01" ] }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "115" }, { "page": "119" }, { "page": "121" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "264 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680634 ], "year": 1994, "pin_cites": [ { "page": "339" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/264/0336-01" ] }, { "cite": "209 Ill. App. 3d 144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2540498 ], "year": 1990, "pin_cites": [ { "page": "149-50" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/209/0144-01" ] }, { "cite": "567 N.Y.S.2d 122", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "122-23", "parenthetical": "negligent hiring claim did not \"arise out of' rendering of professional services" }, { "page": "122-23", "parenthetical": "under professional liability policy, negligent hiring was not a covered medical incident" } ], "opinion_index": 1 }, { "cite": "171 A.D.2d 639", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1033580 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "639" }, { "page": "639" } ], "opinion_index": 1, "case_paths": [ "/ad2d/171/0639-01" ] }, { "cite": "575 N.W2d 598", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11876820 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "603-04", "parenthetical": "holding that \"victim's injuries [from sexual abuse] were not a consequence of the delivery of professional services\"" }, { "page": "603-04", "parenthetical": "determining that negligent hiring claim was not covered as a professional service by the clinic's professional liability policy" } ], "opinion_index": 1, "case_paths": [ "/nw2d/575/0598-01" ] }, { "cite": "291 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456161 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "895" }, { "page": "890-91", "parenthetical": "construing whether a complaint's allegations were \"due to\" the rendering or failure to render professional services and thus falling within the professional services exclusion of a \"Businessowners Policy\"" }, { "page": "890-91", "parenthetical": "construing professional services exclusion in \"Businessowners Policy\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/291/0888-01" ] } ], "analysis": { "cardinality": 1177, "char_count": 42817, "ocr_confidence": 0.769, "pagerank": { "raw": 1.3602876291036795e-07, "percentile": 0.6353486245723207 }, "sha256": "fc56ec880f4721d74cd8a7b4ea579f30818fb0dd9c48e2ab5c6bf26752e8f03c", "simhash": "1:bbe74db66d35f67c", "word_count": 6700 }, "last_updated": "2023-07-14T19:16:41.005109+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. ROBERTA ENRIGHT, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants-Appellees (Matthew S. Burnett et al., Defendants). \u2014 AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. ACE AMERICAN INSURANCE COMPANY, f/k/a Cigna Insurance Company, Defendant and Counter-plaintiff-Appellant (Roberta Enright, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants and Counterdefendants-Appellees; Midwestern Regional Medical Center, Inc., et al., Defendants and Counter-defendants)." ], "opinions": [ { "text": "JUSTICE BYRNE\ndelivered the opinion of the court:\nThese consolidated appeals involve multiple declaratory judgment actions arising from an underlying complaint in which Roberta En-right, as mother and next friend of the minor, Jane Doe, sued Matthew C. Burnett and his employer, North Shore Ultrasound, Inc. (NSU), alleging that Burnett sexually assaulted Jane Doe while performing an ultrasound procedure. The trial court found that both American Family Insurance Company (American) and Ace American Insurance Company (Ace) owe a duty to defend NSU, but American\u2019s policy is primary, and that Ace owes a duty to defend Burnett. Midwestern Regional Medical Center, Inc. (Midwestern), and Burnett are not parties to the appeals. We affirm in part and reverse in part.\nFACTS\nNSU provides technical support for the performance of ultrasound procedures by furnishing agents and employees to facilities, including Midwestern. Burnett was employed by NSU as a licensed ultrasound technician. On July 11, 1998, while performing ultrasound procedures on Jane Doe, Burnett sexually assaulted Jane Doe by placing his finger in her vagina against her will.\nEnright filed a five-count complaint against NSU, Midwestern, and Burnett on December 2, 1999, for injuries incurred by Jane Doe. Count I alleges a cause of action for negligent hiring against NSU; counts II, III, and IV are directed against NSU and Midwestern and are not at issue on appeal; and count V alleges a cause of action for battery against Burnett. On June 30, 1999, Burnett pleaded guilty to aggravated criminal sexual abuse and thereafter was sentenced.\nNSU tendered the defense of the lawsuit to its insurance companies. American issued to NSU a business owner\u2019s policy that provides general exposure liability coverage for business practices or activities of the firm. The Ace policy essentially provides coverage for professional malpractice claims. Both insurers denied coverage and filed declaratory judgment actions seeking a determination as to whether they owed a duty to defend NSU or Burnett. The insurers also filed several motions for summary judgment. Enright and NSU also filed motions for summary judgment.\nAfter considering the summary judgment motions, the trial court found that American owes no duty to defend or indemnify Burnett; that American and Ace owe a duty to defend NSU, but American\u2019s policy is primary and Ace\u2019s policy is excess; and that Ace owes a duty to defend Burnett. Both American and Ace filed separate appeals from the trial court\u2019s judgments against them. We consolidated their appeals.\nANALYSIS\nThe standard of review on appeal from the entry of summary judgment is de novo. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993). The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and appropriate subjects for disposition by summary judgment. Crum & Forster, 156 Ill. 2d at 391.\nIn determining whether an insurer has a duty to defend its insured in an underlying lawsuit, the court must look to the allegations in the underlying complaint and compare these allegations to the relevant coverage provisions of the insurance policy. Crum & Forster, 156 Ill. 2d at 393. If the facts alleged in the underlying complaint fall within, or potentially within, the policy\u2019s coverage provisions, then the insurer has a duty to defend the insured in the underlying action. Crum & Forster, 156 Ill. 2d at 393. If the insurer owes no duty to defend, then it owes no duty to indemnify because the duty to defend is broader than the duty to indemnify. Crum & Forster, 156 Ill. 2d at 398. Where the language of an insurance policy is clear and unambiguous, it must be given its plain and ordinary meaning. State Farm Fire & Casualty Co. v. Hatherly, 250 Ill. App. 3d 333, 337 (1993).\nI. American\u2019s Duty To Defend NSU\nWe first address American\u2019s contention that the trial court erred in determining that American owes a duty to defend the underlying claim brought against NSU for negligent hiring. The Enright complaint alleges that NSU has a duty to exercise reasonable care in the hiring and retention of Burnett. It further alleges that NSU breached that duty in that it (1) failed to investigate and inquire about Burnett\u2019s prior criminal history; (2) knew or should have known at the time of hiring Burnett that he had pleaded guilty to the offense of disorderly conduct and had an active warrant for his arrest; (3) knew or should have known that Burnett was unfit for the position of sonographer because it allowed for unsupervised contact with minors; and (4) failed to adopt administrative review and to conduct adequate preemployment screening and reference verification before hiring Burnett.\nThe business owner\u2019s package policy issued by American to NSU states, in pertinent part, that American \u201cwill pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.\u201d The policy excludes coverage for intentional injury \u201c(1) expected or intended from the standpoint of the insured\u201d or \u201c(2) arising out of sexual molestation *** inflicted upon any person by or at the direction of an insured.\u201d The policy also excludes coverage for the following:\n\u201cPROFESSIONAL LIABILITY. We will not pay for damages due to bodily injury or property damage arising out of the rendering of or the failure to render professional services by any insured, who is a (an):\n* * *\n(4) nurse or X-ray or medical technician;\n(5) health care practitioner of any kind.\u201d\nAmerican argues that the act of hiring Burnett was intentional and therefore was not an \u201coccurrence\u201d within the meaning of the policy so as to provide coverage. ^Occurrence\u201d is defined in the policy as \u201can accident, including continuous or repeated exposure to substantially the same general harmful conditions.\u201d American relies on Erie Insurance Co. v. American Painting Co., 678 N.E.2d 844, 846 (Ind. App. 1997), in support of its argument that, in the context of insurance coverage, the act of the employer in negligently hiring the employee is intentional, not accidental, and therefore there is no coverage. We disagree with this argument for several reasons.\nFirst, the premise that the act of hiring is intentional is inconsistent with Illinois law, which holds that negligent hiring is a tort separate from the employee\u2019s intentional conduct. See, e.g., State Security Insurance Co. v. Globe Auto Recycling Corp., 141 Ill. App. 3d 133, 136 (1986) (intentional tort of employer not covered; negligent hiring potentially covered).\nSecond, Illinois courts have focused on whether the injury is expected in determining whether an occurrence is an \u201caccident.\u201d Country Mutual Insurance Co. v. Hagan, 298 Ill. App. 3d 495, 507 (1998). \u201c[A]n occurrence which is defined as an accident involves the consideration of whether the injury was expected or intended from the standpoint of the insured.\u201d (Emphasis added.) State Farm Fire & Casualty Co. v. Watters, 268 Ill. App. 3d 501, 506 (1994). In Illinois, therefore, if an injury is not expected or intended by the insured, it is considered an accident. Hagan, 298 Ill. App. 3d at 508. There are no allegations in the underlying complaint that NSU intended to injure Jane Doe. Rather, Enright alleges that NSU was negligent in not adopting proper preemployment screening, reference investigating, and administrative review. American seems to focus on the employer\u2019s final decision to hire an individual, an act that is intentional, rather than on the processes involved before and after the individual is hired, acts that could be handled negligently.\nThird, American also predicates its argument on the assumption that Burnett\u2019s intentional act is not a separate and distinct act from NSU\u2019s alleged negligent act. We find the case of United States Fidelity & Guaranty Co. v. Open Sesame Child Care Center, 819 F. Supp. 756 (N.D. Ill. 1993), instructive here. In Open Sesame, the insurer brought a declaratory judgment action seeking to determine whether, under the special multiperil policy, it owed a duty to defend the insured daycare center in an action brought by the mother of a child allegedly abused by the daycare\u2019s employee. The insurer promised to \u201cpay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of *** bodily injury or *** property damage to which this insurance applies.\u201d Open Sesame, 819 F. Supp. at 757.\nThe court acknowledged those cases from other jurisdictions in which the courts refused to separate the employer\u2019s alleged negligence from the abuser\u2019s intentional conduct. Open Sesame, 819 F. Supp. at 759. However, the court believed that refusing to separate the employer\u2019s alleged negligence from the employee\u2019s intentional conduct would disregard the clear language of the insurance policy. \u201cThe policy excludes bodily injury or property damage expected or intended from the standpoint of the insured. In other words, only the insured\u2019s intentional conduct falls outside the ambit of the policy.\u201d (Emphasis omitted.) Open Sesame, 819 F. Supp. at 760. The court believed that the other opinions also discounted the employer\u2019s independent acts that gave rise to the underlying alleged tort. The court reasoned that, in holding that the employee\u2019s intentional conduct places the insured\u2019s negligence outside the definition of \u201coccurrence,\u201d the exclusion is read too broadly. Because the predominant purpose of an insurance contract is to provide coverage to the insured, the court concluded that the allegation of negligent hiring in the underlying complaint is an \u201coccurrence\u201d despite the employee\u2019s intentional conduct. Open Sesame, 819 F. Supp. at 760; see also Montgomery v. Petty Management Corp., 323 Ill. App. 3d 514, 519 (2001) (under a theory of negligent hiring, the proximate cause of plaintiffs injuries is the employer\u2019s negligence in hiring the employee, rather than the employee\u2019s wrongful act); Doe v. Shaffer, 90 Ohio St. 3d 388, 738 N.E.2d 1243 (2000) (intentions of molester immaterial to determining coverage for alleged negligent hiring); Silverball Amusement, Inc. v. Utah Home Fire Insurance Co., 842 F. Supp. 1151 (WD. Ark. 1994) (allegations against insured determines duty to defend for negligent hiring of employee who sexually molested a minor; otherwise it would dissolve distinction between intentional and negligent conduct).\nAmerican argues that Open Sesame is not controlling because the definition of \u201coccurrence\u201d in that policy is different from the definition in American\u2019s policy. The two definitions of \u201coccurrence \u201c are identical except the definition in the Open Sesame policy contains the additional phrase \u201cneither expected nor intended from the standpoint of the insured.\u201d Open Sesame, 819 F. Supp. at 757. We agree that this is a distinction without a difference. The additional language is superfluous because, as stated above, bodily injury that is expected or intended from the standpoint of the insured is not considered an accident under the policy here. See Hagan, 298 Ill. App. 3d at 508.\nAmerican argues that we should not follow the reasoning in Open Sesame, as it conflicts with United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 541 (1994). In Jiffy, the court held that, in determining whether an act is covered by the policy, the court must look to the act of the individual who was hired and, if the act of the employee would fail to invoke coverage or is excluded by a provision of the policy, the claim for negligent hiring of that employee will not be deemed to invoke coverage. American contends that, because the allegations of negligent hiring are related to and interdependent on the allegations of Burnett\u2019s intentional act, there is no coverage for NSU.\nIn Jiffy, a passenger was fatally stabbed by a Jiffy cab driver after the passenger exited the cab following an argument over a driving route. The policy provided that the insurer would pay all sums because of bodily injury \u201ccaused by an accident and resulting from the *** use of a covered auto.\u201d Jiffy, 265 Ill. App. 3d at 538. The court held that the act of leaving the vehicle and inflicting the battery was an event of independent significance that was too remote, incidental, or tenuous to support a causal connection with the use of the vehicle. The court also found that the battery of the passenger by the cabdriver was not the type of risk that the parties to the insurance contract reasonably contemplated would be protected by a general automobile liability policy. The court further held that coverage was not invoked for the claim against the cab company for negligent hiring because the policy did not cover the employee. Jiffy Cab, 265 Ill. App. 3d at 541-42.\nWe disagree with American that Open Sesame conflicts with Jiffy Cab. The court in Open Sesame addressed whether negligent hiring was an occurrence so as to invoke coverage. The issue raised in Jiffy Cab was whether the claim for negligent hiring was covered as arising out of the use of an auto. The court reasoned that, since the driver\u2019s act of stabbing the passenger was not covered by the policy because it did not result from the use of an auto, then the claim for negligent hiring was not covered under the policy either. Jiffy Cab, 265 Ill. App. 3d at 541-42.\nThe only similarity between Jiffy and the present case is that Burnett and the cab driver personally committed intentional acts that were excluded by the policies. Unlike in Jiffy, the type of risk involved here, negligent hiring, is the type of risk that the parties to the insurance contract reasonably contemplated would be covered by a general liability business policy. More importantly, we cannot adopt a general rule of law that holds that coverage is not invoked for an employer simply because the policy does not cover the employee for his intentional act. If we were to do so, we would ignore the independent negligent act of the employer that gave rise to the allegation in the underlying complaint. We also would disregard the clear intent of the policy to exclude intentional conduct on the part of the \u201cinsured.\u201d\nIn seeking to avoid coverage, American relies on two exclusions in its policy, one based on sexual molestation and the other based on professional services. The \u201cprofessional services\u201d exclusion bars coverage for bodily injury arising out of the rendering of or the failure to render professional services by an insured who is an X-ray or medical technician or a health care practitioner of any kind. American argues that this exclusion applies because the complaint alleges that Burnett was performing a \u201cprofessional service\u201d at the time of the incident. Again, American incorrectly continues to assert that the allegations of negligent hiring emanated from Burnett\u2019s criminal act and, therefore, NSU is excluded from coverage. However, we reject this assertion because, for purposes of insurance coverage analysis, the focus must be on the allegations against NSU for negligent hiring, not the allegations against Burnett for sexual assault. Accordingly, we reject American\u2019s argument that this exclusion applies.\nThe policy also excludes damages due to bodily injury arising out of sexual molestation inflicted upon any person \u201cby or at the direction of an insured.\u201d American argues that this exclusion bars coverage because the injury arose out of Burnett\u2019s sexual act. However, there are no allegations that NSU directed Burnett to sexually molest Jane Doe.\nAmerican argues that the use of the words \u201can insured\u201d versus \u201cthe insured\u201d is crucial because it means that the policy does not cover anyone for injuries arising out of sexual molestation regardless of the theory of liability asserted in the underlying complaint. American fails to recognize that the act of sexual molestation must be inflicted \u201cby or at the direction of an insured\u201d in order for the exclusion to apply. As stated above, the underlying complaint does not allege that NSU directed Burnett to sexually molest Jane Doe. Nor is it alleged that NSU sexually molested the minor. Accordingly, we also reject this argument.\nWe conclude that the allegations of the underlying complaint at issue here unquestionably seek to hold NSU liable for its own negligent conduct, a claim that falls within, or potentially falls within, the scope of coverage under the terms of American\u2019s policy. Accordingly, the trial court correctly found that American has a duty to defend NSU.\nII. Ace\u2019s Duty to Defend NSU\nWe next address whether Ace owes a duty to defend NSU. Ace contends that it owes no duty to defend NSU because the underlying allegations of negligent hiring, investigation, and supervision are not claims against NSU for \u201cprofessional services.\u201d We agree.\nThe policy issued to NSU by Ace is entitled a \u201cProfessional/ Supplemental Liability Insurance Policy.\u201d The policy contains several sections. One section is entitled \u201cProfessional Liability Coverage.\u201d Under this provision, Ace promises to \u201cpay all amounts up to the limit of liability\u201d that the insured becomes \u201clegally obligated to pay as a result of injury or damage\u201d to which the insurance applies. The injury or damage \u201cmust be caused by a medical incident arising out of professional services by [NSU] or anyone for whose professional services [NSU is] legally responsible.\u201d (Emphasis added.)\nThe second section, entitled \u201cSupplemental Liability Coverage,\u201d provides that Ace will \u201cpay all amounts up to the limits of liability\u201d that NSU becomes \u201clegally obligated to pay as a result of injury or damage. The injury or damage must occur in the course of providing [NSU\u2019s] professional services.\u201d (Emphasis added.)\nThe third section is entitled \u201cPersonal Injury Coverage.\u201d This section of the policy does not contain any promise by Ace to pay any amount that NSU becomes legally obligated to pay. Rather, it simply defines \u201cinjury, as respects only [NSU\u2019s] professional services,\u201d to include \u201cassault, battery, mental anguish, mental shock or hallucination.\u201d (Emphasis added.)\nThe underlying complaint alleges, inter alia, that NSU breached a duty to exercise ordinary and reasonable care and was negligent when it failed to adopt appropriate administrative review or to conduct adequate preemployment screening and reference verification. The policy defines \u201cprofessional services\u201d to mean \u201cthose services you are licensed, trained, or being trained to provide within the allied health field specified in your application and approved by us for coverage.\u201d Unquestionably, Enright seeks damages against NSU for acts that were not taken in the course of providing professional services and were not drawn from NSU\u2019s professional training, skill, experience, or knowledge as sonographers. Put another way, the allegations in the underlying complaint are based on administrative acts that have nothing to do with NSU\u2019s professional training, skill, experience, or knowledge as a sonographer. See Pekin Insurance Co. v. L.J. Shaw & Co., 291 Ill. App. 3d 888, 895 (1997) (focus must be on whether the claim is seeking to impose liability for acts taken in the course of the professional\u2019s training, skill, experience, or knowledge); see also Mork Clinic v. Fireman\u2019s Fund Insurance Co., 575 N.W2d 598 (Minn. App. 1998) (regarding allegations of employees\u2019s sexual abuse, clinic\u2019s negligence in hiring and supervising employee is in the nature of administrative actions that do not fall within ambit of policy provision of professional services); Community Hospital at Glen Cove v. American Home Assurance Co., 171 A.D.2d 639, 567 N.Y.S.2d 122 (1991) (claim against hospital for negligent hiring, training, and supervision of physician accused of sexual abuse of patient does not constitute medical incident, which is defined as an act or omission arising out of furnishing of professional health care services).\nThe dissent asserts that, because Burnett injured Jane Doe while she was receiving an ultrasound, the injury occurred \u201cin the course of providing professional services\u201d and is therefore covered under the \u201cSupplemental Liability Coverage\u201d section. The dissent focuses on Burnett\u2019s intentional act rather than NSU\u2019s hiring practices, which are the subject of the underlying claim in the complaint. If NSU becomes \u201clegally obligated to pay,\u201d it will be for negligent hiring, not Burnett\u2019s intentional conduct. Because the negligent hiring did not occur in the course of rendering a professional service, there is no coverage under the supplemental liability coverage section or any other section of the policy. Accordingly, we respectfully disagree with the dissent.\nBecause we conclude that Ace has no duty to defend NSU, the decision as to which insurance policy is primary or excess is moot. Accordingly, the trial court erred in finding that Ace has a duty to defend NSU and in finding that Ace\u2019s policy is excess to American\u2019s policy.\nIII. Ace\u2019s Duty To Defend Burnett\nWe next address whether Ace has a duty to defend Burnett. Ace raises three arguments: (1) Burnett is not covered by the policy because he is not a named insured; (2) even if Burnett is considered an insured, the allegations in the underlying suit do not involve a \u201cprofessional service\u201d or a \u201cmedical incident\u201d as required by the policy; and (3) even if Burnett\u2019s act is considered to arise from or occur during the course of a professional service, Burnett\u2019s conduct is excluded from coverage because it was expected or intended, resulted from a willful violation of a statute imposing criminal penalties, and arose out of sexual abuse.\nThe professional liability policy issued by Ace to NSU is a malpractice policy that provides coverage for liability arising from errors and omissions that occur during the rendering of professional services. See Crum & Forster, 156 Ill. 2d at 392. The only named insured on the policy is NSU. Generally, \u201ca corporation is only a legal entity and can act only through a person.\u201d Shapiro v. DiGuilio, 95 Ill. App. 2d 184, 192 (1968). This does not necessarily mean that insurance covering the corporation also covers its employees. See Shapiro, 95 Ill. App. 2d at 192 (policy specifically defined insured to include any executive officer, director, or stockholder while acting within the scope of his duties as such). In this case, the policy does not specifically define who are the insureds. Because the policy covers liability arising from errors and omissions stemming from professional services, it logically follows that those employees who provide these professional services could be considered insureds. However, we need not reach this issue because, assuming arguendo that Burnett is considered to be an insured under the policy, we agree with Ace that his act is excluded from coverage.\nThe professional liability section excludes coverage for an act \u201cwhich was expected or intended\u201d or an act \u201cwhich is also a willful violation of a statute *** imposing criminal penalties.\u201d The supplemental liability section also excludes coverage for intentional acts. The record establishes that Burnett pleaded guilty to and was sentenced for aggravated sexual assault. Without question, therefore, his act was intentional and a willful violation of a statute imposing criminal penalties, which is excluded from coverage.\nEnright argues that exclusion J of the professional liability section of the policy requires Ace to defend Burnett because the claim specifically arose from sexual abuse. Exclusion J excludes from coverage:\n\u201c[those] [c]laims arising out of physical abuse, threatened abuse, sexual abuse or sexual harassment, immoral or sexual behavior whether or not intended to lead to, or culminating in any sexual act, whether caused by, or at your instigation, or omission, or that of your employee, or any person. However, notwithstanding the foregoing, you shall be provided with a defense against any claim or suit which may be brought against you for any such alleged act, provided that the defense shall be limited to the amount of the professional coverage. No damages shall be paid for you or on your behalf and no defense or appeal shall be provided when a judgment or final adjudication adverse to you establishes that such act or acts occurred.\u201d (Emphasis added.)\nWe agree that the policy initially requires Ace to defend Burnett for claims that arise out of sexual abuse. However, Enright ignores the final sentence, which provides that Ace need not defend if \u201ca judgment\u201d establishes that the sexual abuse occurred. Because a judgment adverse to Burnett established that the sexual abuse did occur, Ace has no duty to defend or indemnify Burnett.\nEnright argues in favor of construing the policy as ambiguous in order to find coverage. Enright contends that exclusion J conflicts with the \u201cPersonal Injury Coverage\u201d section, which \u201ccovers\u201d claims of assault and battery. Enright misconstrues the intent of this section. There is no promise under this section to always provide insurance coverage for this type of injury. Rather, this section broadens only the definition of the word \u201cinjury\u201d to include such acts as assault or battery.\nMoreover, this section does not alter or conflict with any of the other sections of the policy. For coverage purposes, if the \u201cinjury\u201d is defined to include battery or assault, the battery must be caused by a \u201cmedical incident arising out of a professional service\u201d or it must \u201coccur in the course of providing a professional service.\u201d This situation might arise when a sonographer injures a patient while performing the wrong test on a patient. In such a case, the patient could bring a claim against the sonographer for battery. The claim would be covered by the policy because it arose out of a professional service. It would not be excluded from coverage under the expected or intended exclusion because, although the sonographer intended to provide the service, he did not intend the injury to result. Conversely, if it is proved that the sonographer intended to commit the battery, the claim would be excluded from coverage.\nAmerican argues that Ace intended to treat certain allegations of sexual abuse as professional incidents because exclusion J provides a duty to defend but limits the defense to the amount of professional coverage. American argues that, if Ace had intended that an act of sexual abuse could never be deemed a professional incident, then there would have been no reason to include language limiting the amount to the professional coverage limits. American maintains that any other conclusion would render exclusion J meaningless.\nWe note first that American has no interest regarding Ace\u2019s duty to defend Burnett because the trial court found that American owes no duty to defend Burnett and no party in these appeals has challenged that finding. In any event, we do not find that any of the terms used in exclusion J render it meaningless. The meaning of \u201cprofessional incident\u201d is not synonymous with \u201cprofessional coverage.\u201d A \u201cprofessional incident\u201d is defined in the policy as any negligent act, error, or omission in the rendering of or failure to render professional services that results in damages. Although the term \u201cprofessional coverage\u201d is undefined, the term is placed in the \u201cProfessional Liability Coverage\u201d section and, thus, the definition of professional coverage is intended to define the scope of the policy coverage.\nAdditionally, American fails to comprehend the intent of this exclusion. Ace must defend a claim that arises out of sexual abuse, but only if the allegation is proved to be false. In that case, the cost of the defense is limited to the amount prescribed under the professional liability coverage section. If the allegation is proved to be true, then neither the damages nor the cost of the defense will be covered by the policy. Clearly, exclusion J is intended to cover those instances in which the insured is falsely accused of sexual abuse. We have reviewed the remaining contentions and find them to be meritless. Accordingly, the trial court erred in finding that Ace owes a duty to defend Burnett in the underlying lawsuit.\nCONCLUSION\nIn sum, we conclude that American owes a duty to defend the claim against NSU for negligent hiring and Ace owes no duty to defend or indemnify the underlying claims against NSU or Burnett. For the foregoing reasons, the decision of the circuit court of Lake County is affirmed in part and reversed in part.\nAffirmed in part and reversed in part.\nCALLUM, J., concurs.", "type": "majority", "author": "JUSTICE BYRNE" }, { "text": "JUSTICE O\u2019MALLEY,\nspecially concurring in part and dissenting in part:\nI agree with the majority\u2019s conclusions that American owes a duty to defend the claim against NSU for negligent hiring and that Ace does not owe a duty to defend or indemnify Burnett. However, I must dissent from the majority\u2019s resolution that Ace owes no duty to defend NSU under Ace\u2019s supplemental professional liability coverage part.\nIn this case, NSU paid Ace for not only professional liability coverage but also supplemental liability coverage. When an insured pays an additional premium for supplemental liability insurance coverage, the law presumes that the insured intended to obtain broader liability coverage. See International Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. of Illinois, 209 Ill. App. 3d 144, 149-50 (1990). During its review of whether there is potential coverage under the policy that triggers a duty to defend, the court should consider that the insured purchased the supplemental professional liability coverage to expand its professional liability coverage. See Pekin Insurance, 291 Ill. App. 3d at 895. The majority\u2019s reading of the supplemental liability coverage part not only ignores the policy\u2019s plain language but also renders any expanded liability coverage under that part illusory.\nContrary to the majority, I would hold that the \u201cSupplemental Liability Coverage\u201d part, at the very least, potentially grants coverage for the negligent hiring claim against NSU. In reaching this conclusion, I am guided by the rule of insurance contract interpretation that the entire document is to be examined to determine the parties\u2019 intentions with consideration given to the contract\u2019s subject matter and purpose as well as the policy\u2019s language. Hannigan v. Country Mutual Insurance Co., 264 Ill. App. 3d 336, 339 (1994). I find it significant that Ace\u2019s policy consists of three \u201cCoverage Part[s]\u201d: professional liability coverage, supplemental professional liability coverage, and personal injury coverage.\nThe Ace policy\u2019s \u201cProfessional Liability Coverage\u201d is triggered only when an injury or damage is caused by a \u201cmedical incident arising out of professional services\u201d by the insured. The \u201cSupplemental Liability Coverage\u201d covers an injury or damage that occurs in the course of NSU\u2019s professional services, but, unlike the \u201cProfessional Liability Coverage\u201d part, it does not require that the injury or damage stem from a medical incident.\nThe main difference between the supplemental and primary professional liability coverage parts is that the requirement that the injury or damage be caused by a \u201cmedical incident\u201d is deleted from the supplemental coverage part. The Ace policy defines a \u201cmedical incident\u201d as \u201cany negligent act, error or omission in the rendering of or failure to render professional services that results in damages.\u201d This is a broad definition that encompasses any negligent acts or omissions arising from the insured\u2019s performance of or failure to perform its professional services. Thus, before coverage will be found under the primary professional liability coverage part, the complaint must allege negligent acts or omissions that satisfy the definition of a \u201cmedical incident.\u201d\nThe supplemental liability coverage part, however, requires that the \u201cinjury or damage must occur in the course of providing your professional services.\u201d (Emphasis added.) Therefore, if Enright\u2019s complaint alleges facts indicating that Jane Doe\u2019s injury occurred in the course of NSU\u2019s professional services, there is potential coverage under Ace\u2019s supplemental liability coverage part. I believe that En-right\u2019s complaint alleges such facts.\nEnright states in her complaint that Jane Doe was injured while NSU\u2019s employee, Burnett, was performing ultrasound procedures on her. Because NSU\u2019s business was to furnish licensed ultrasound technicians to various health care facilities, Burnett\u2019s administration of the ultrasound procedures to Jane Doe was providing NSU\u2019s \u201cprofessional services,\u201d as defined by the Ace policy (334 Ill. App. 3d at 1028).\nThe majority concludes that the professional services requirements of each section of the policy preclude coverage for NSU in the underlying action. I cannot agree. The majority focuses exclusively on NSU\u2019s allegedly negligent actions in hiring and training and whether these acts satisfy the Ace policy\u2019s definition of \u201cprofessional services.\u201d However, coverage under the supplemental liability coverage part is not triggered by the negligent acts alleged in the complaint. Unlike the \u201cProfessional Liability Coverage\u201d part, the supplemental liability coverage part provides coverage depending upon when (i.e., \u201cin the course of NSU\u2019s professional services\u201d) the alleged injury or damage occurred. This policy language is different from the language used in the cases cited by the majority that only consider whether a complaint\u2019s allegations were \u201cdue to\u201d or \u201carise from\u201d professional services, as opposed to whether the injury occurred \u201cin the course of\u2019 the professional services. See Pekin Insurance, 291 Ill. App. 3d at 890-91 (construing whether a complaint\u2019s allegations were \u201cdue to\u201d the rendering or failure to render professional services and thus falling within the professional services exclusion of a \u201cBusinessowners Policy\u201d); see also Mork Clinic, 575 N.W.2d at 603-04 (holding that \u201cvictim\u2019s injuries [from sexual abuse] were not a consequence of the delivery of professional services\u201d); Community Hospital, 171 A.D.2d at 639, 567 N.Y.S.2d at 122-23 (negligent hiring claim did not \u201carise out of\u2019 rendering of professional services). I conclude that the damage alleged in Enright\u2019s complaint occurred in the course of the professional services of the ultrasound procedures administered by NSU\u2019s technician and, thus, is at least potentially covered by the plain language of the supplemental liability coverage part.\nAce\u2019s policy additionally states that the supplemental professional liability is \u201coccurrence\u201d coverage and defines an \u201coccurrence\u201d as an \u201caccident *** which results in injury neither expected or intended by you.\u201d The policy does not define \u201caccident.\u201d The \u201coccurrence\u201d definition in the Ace policy is similar to the American policy\u2019s \u201coccurrence\u201d definition, and I determine that the majority\u2019s reasoning that the En-right complaint sufficiently alleged an \u201coccurrence\u201d under American\u2019s policy results in the same outcome under Ace\u2019s policy. 334 Ill. App. 3d at 1030-34. Simply stated, \u201c[t]here are no allegations in the underlying complaint that NSU intended to injure Jane Doe\u201d (334 Ill. App. 3d at 1031); therefore, under Illinois law, Jane Doe\u2019s injury is considered an accident.\nAlthough I find that Ace\u2019s supplemental professional liability policy potentially grants coverage for Enright\u2019s negligent hiring, investigation, and supervision claim, I also recognize that the \u201cSupplemental Liability Coverage\u201d part of the policy, like the \u201cProfessional Liability Coverage\u201d part, specifically excludes \u201cinjury or damage caused by or resulting from non-professional services activities,\u201d which arguably might preclude coverage. However, immediately following this exclusion, the supplemental coverage part contains an exception to that exclusion. The exception states that the nonprofessional services exclusion does not apply to \u201cactivities which are ordinarily incidental to your professional services activities.\u201d Thus, coverage is intended for those activities that are not \u201cprofessional services\u201d as defined by the Ace policy but are \u201cordinarily incidental\u201d to performing those services.\nThe majority\u2019s analysis of the meaning of \u201cprofessional services\u201d under the policy is fine. I have no quarrel with the cases cited and quoted by the majority in arriving at the definition of professional services, but those cases did not deal with a policy that has separate \u201cCoverage Part[s]\u201d entitled \u201cProfessional Liability Coverage\u201d followed by \u201cSupplemental Liability Coverage.\u201d See Pekin Insurance, 291 Ill. App. 3d at 890-91 (construing professional services exclusion in \u201cBusinessowners Policy\u201d). In addition, the foreign cases cited by the majority that found no coverage for negligent hiring as professional services contain no mention of coverage for activities ordinarily incidental to professional services. See Mork Clinic, 575 N.W.2d at 603-04 (determining that negligent hiring claim was not covered as a professional service by the clinic\u2019s professional liability policy); Community Hospital, 171 A.D.2d at 639, 567 N.Y.S.2d at 122-23 (under professional liability policy, negligent hiring was not a covered medical incident). Through its exception to the exclusion, the Ace policy\u2019s supplemental coverage part does not limit professional liability coverage only to injury or damage occurring in the course of providing the professional services but, rather, supplements it to include injury or damage caused by activities ordinarily incidental to professional services. Consequently, I find the majority\u2019s discussion of professional services insufficient without including an inquiry into whether NSU\u2019s administrative activities in hiring, investigating, and supervising its employees are activities that are ordinarily incidental to performing its professional services. That inquiry follows.\nThe Ace policy does not define what activities are ordinarily incidental to professional services. When words are not defined by an insurance policy, courts give them their plain and popular meaning. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 115 (1992). The word \u201cordinary\u201d is defined as \u201cusual; normal,\u201d and \u201cincidental\u201d means \u201csomething necessary, appertaining to, or depending upon another.\u201d Black\u2019s Law Dictionary 762, 1097 (6th ed. 1990). Applying these definitions shows that the hiring, investigating, and supervising of the employees who actually perform the professional services covered under this policy are clearly incidental and necessary to those professional services. Thus, I see the policy as unambiguously providing coverage.\nAt a minimum, that which I see as unambiguous is at least a reasonable interpretation of the policy. If an insurance policy\u2019s language is capable of more than one reasonable interpretation, then the interpretation that favors coverage prevails. Outboard Marine Corp., 154 Ill. 2d at 119. In fact, if such activities are not incidental to providing ultrasounds, then I find it difficult to envision what activities would be considered incidental under the policy. Both Ace and the majority fail to identify any. If we cannot envision what would be considered incidental, then that language is ambiguous and needs to be construed against Ace. All doubts and uncertainties in an insurance policy\u2019s language must be construed strictly against the drafter and in favor of coverage. Outboard Marine Corp., 154 Ill. 2d at 121. Consequently, I conclude that the facts alleged by Enright in the underlying complaint are, at the very minimum, potentially within the policy\u2019s coverage.\nIn summary, NSU purchased not only professional liability coverage from Ace but also coverage that was supplemental to the professional liability coverage and expressly included coverage for activities ordinarily incidental to professional services. The supplemental coverage part was intended to expand NSU\u2019s professional liability coverage, as evidenced by the coverage part\u2019s title, the \u201cCoverage Agreements\u201d under Roman numeral I of the policy, and the fact that it covers an injury or damage not stemming from a medical incident. Given that this coverage part provides NSU supplemental and expanded liability coverage, I believe that the parties intended for the facts alleged in Enright\u2019s complaint to be covered and that Ace is required to defend NSU. Moreover, even if Ace did not intend to cover this risk, courts cannot rely on an insurer\u2019s intentions to defeat coverage for an insured. Marshall v. Metropolitan Life Insurance Co., 337 Ill. App. 498, 509 (1949) (\u201c[I]f the language of the insurance policy is susceptible to two interpretations, the question of intention is not germane, and that interpretation which will not defeat the insured\u2019s claim will be adopted\u201d). If Ace had wanted to limit the definition of \u201cordinarily incidental\u201d so that the term would not cover NSU\u2019s hiring and supervising activities, it could have done so. I would affirm the trial court\u2019s ruling that Ace owes a duty to defend NSU for the reasons expressly stated above and would then find it unnecessary to address the merits of the parties\u2019 other contentions concerning the Ace policy. On this basis, I dissent from the majority\u2019s determination that Ace does not owe a duty to defend NSU.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE O\u2019MALLEY," } ], "attorneys": [ "Eileen P. Lenhardt, of James M. Hoffman & Associates, of Vernon Hills, and Maria Dimeas Jensen, of James M. Hoffman & Associates, of Schaumburg, for American Family Mutual Insurance Company.", "Fritz K. Huszagh, Terrence P. McAvoy, and Christine L. Olson, all of Hinshaw & Culbertson, of Chicago, for appellee Ace American Insurance Company.", "John A. Kornak and Patrick Jennetten, both of Salvi, Schostok & Fritchard, P.C., of Waukegan, for appellee Roberta Enright.", "James J. DeSanto and Vernon E. Morgan, both of DeSanto, Morgan & Mittelman, of Libertyville, for appellee North Shore Ultrasound, Inc." ], "corrections": "", "head_matter": "AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. ROBERTA ENRIGHT, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants-Appellees (Matthew S. Burnett et al., Defendants). \u2014 AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. ACE AMERICAN INSURANCE COMPANY, f/k/a Cigna Insurance Company, Defendant and Counter-plaintiff-Appellant (Roberta Enright, Indiv. and as Mother and Next Friend of Jane Doe, a Minor, et al., Defendants and Counterdefendants-Appellees; Midwestern Regional Medical Center, Inc., et al., Defendants and Counter-defendants).\nSecond District\nNos. 2 \u2014 01\u20140630, 2 \u2014 01\u20140653 cons.\nOpinion filed November 1, 2002.\nRehearing denied December 4, 2002.\nO\u2019MALLEY, J., specially concurring in part and dissenting in part.\nEileen P. Lenhardt, of James M. Hoffman & Associates, of Vernon Hills, and Maria Dimeas Jensen, of James M. Hoffman & Associates, of Schaumburg, for American Family Mutual Insurance Company.\nFritz K. Huszagh, Terrence P. McAvoy, and Christine L. Olson, all of Hinshaw & Culbertson, of Chicago, for appellee Ace American Insurance Company.\nJohn A. Kornak and Patrick Jennetten, both of Salvi, Schostok & Fritchard, P.C., of Waukegan, for appellee Roberta Enright.\nJames J. DeSanto and Vernon E. Morgan, both of DeSanto, Morgan & Mittelman, of Libertyville, for appellee North Shore Ultrasound, Inc." }, "file_name": "1026-01", "first_page_order": 1044, "last_page_order": 1061 }