{ "id": 5731432, "name": "STANDARD MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PATRICK F. MUDRON et al., Defendants-Appellants", "name_abbreviation": "Standard Mutual Insurance v. Mudron", "decision_date": "2005-06-21", "docket_number": "No. 3-04-0431", "first_page": "535", "last_page": "540", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 535" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "430 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483786 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0250-01" ] }, { "cite": "636 N.E.2d 956", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "959" } ], "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680591 ], "year": 1994, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0303-01" ] }, { "cite": "768 N.E.2d 874", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "877-78" } ], "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472402 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "534-35" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0531-01" ] }, { "cite": "117 F. 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Supp. 2d", "case_ids": [ 9493188 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/f-supp-2d/160/0915-01" ] }, { "cite": "783 N.E.2d 1024", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "203 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799395 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/203/0064-01" ] }, { "cite": "786 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "203 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799381 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/203/0456-01" ] }, { "cite": "737 N.E.2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "193 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963692 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-2d/193/0164-01" ] }, { "cite": "757 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "\"property damage,\" defined as physical injury to tangible property, did not include intangible damages such as economic loss" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259023 ], "year": 2001, "pin_cites": [ { "parenthetical": "\"property damage,\" defined as physical injury to tangible property, did not include intangible damages such as economic loss" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0278-01" ] }, { "cite": "704 N.E.2d 923", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257186 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/1034-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "687 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317117 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/177/0473-01" ] }, { "cite": "764 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "198 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29937 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/198/0249-01" ] } ], "analysis": { "cardinality": 605, "char_count": 11344, "ocr_confidence": 0.787, "pagerank": { "raw": 7.210404812501809e-08, "percentile": 0.430870680105288 }, "sha256": "1d3192ec492cc0552ed2b8435c88c213024cd2a5afb08a1910aa90ada5affbea", "simhash": "1:a26de5f225cffff4", "word_count": 1814 }, "last_updated": "2023-07-14T22:37:08.387494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STANDARD MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PATRICK F. MUDRON et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE SLATER\ndelivered the opinion of the court:\nPlaintiff Standard Mutual Insurance Company filed a complaint for declaratory judgment seeking a determination that it had no duty to defend defendant Patrick Mudron. Mudron had been sued by defendant Brown & Brown, Inc. (Brown), for breach of an employment agreement. Mudron was insured by plaintiff under a homeowner\u2019s liability policy and a personal umbrella liability policy. The trial court ruled that plaintiff had no duty to defend Mudron and granted plaintiffs motion for judgment on the pleadings. Mudron now appeals, and we affirm.\nOverview\nDefendant Mudron worked as an insurance broker for Brown until April of 2003. In August of 2003, Brown filed a complaint for damages and injunctive relief against Mudron, another former Brown employee named Diane Gunderson, and Cornolo & Thompson, Ltd. (Cornolo), an insurance agency. Brown alleged that after Mudron was fired, he convinced Gunderson to leave Brown and begin working with him and/or Cornolo. Mudron and Gunderson then solicited former Brown clients and steered them to Cornolo, in violation of the servicing and solicitation restrictions contained in their employment agreements. Brown also asserted that Mudron and Gunderson had taken Brown\u2019s customer lists and other information and records. Count I of Brown\u2019s complaint sought injunctive relief, count II alleged breach of contract and count III claimed that the defendants had willfully misappropriated Brown\u2019s trade secrets in violation of the Illinois Trade Secrets Act (Trade Secrets Act) (765 ILCS 1065/1 et seq. (West 2002)).\nAt the time Brown filed its complaint, Mudron was the named insured on a homeowner\u2019s insurance policy and a personal umbrella liability policy issued by plaintiff. Pursuant to the terms of the policies, Mudron tendered his defense of the Brown lawsuit to plaintiff, which plaintiff refused to accept. On October 22, 2003, plaintiff filed a declaratory judgment action against Mudron and Brown seeking a determination that it had no duty to defend Mudron. The trial court subsequently granted plaintiffs motion for judgment on the pleadings.\nAnalysis\nJudgment on the pleadings is only proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Only facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions of record may be considered; all well-pleaded facts and the reasonable inferences from those facts are taken as true. M.A.K. v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 198 Ill. 2d 249, 764 N.E.2d 1 (2001). A trial court\u2019s ruling granting judgment on the pleadings is reviewed de novo. M.A.K., 198 Ill. 2d 249, 764 N.E.2d 1.\nIn determining whether an insurer is obligated to defend its insured, a court examines the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy. If the facts as alleged fall within, or potentially within, the language of the policy, the duty to defend arises. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 687 N.E.2d 72 (1997); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992). An insurer\u2019s duty to defend is much broader than its duty to indemnify, and the allegations in the underlying complaint must be liberally construed in favor of the insured. Outboard Marine, 154 Ill. 2d 90, 607 N.E.2d 1204. In addition, provisions that limit or exclude coverage are to he interpreted liberally in favor of the insured and against the insurer. American States, 177 Ill. 2d 473, 687 N.E.2d 72. However, where an exclusion is clear and unambiguous, it must be applied as written. See Pekin Insurance Co. v. Willett, 301 Ill. App. 3d 1034, 704 N.E.2d 923 (1998). A court\u2019s primary objective is to ascertain and give effect to the intentions of the parties, construing the policy as a whole and taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. See American States, 177 Ill. 2d 473, 687 N.E.2d 72. The construction of an insurance policy is a question of law subject to de novo review. American States, 177 Ill. 2d 473, 687 N.E.2d 72; see Outboard Marine, 154 Ill. 2d 90, 607 N.E.2d 1204.\nPursuant to the personal umbrella liability policy, plaintiff promised to pay any \u201cdamages\u201d incurred by the insured, subject to the exclusions and liability limits of the policy. Damages are defined in the policy as sums the insured must pay \u201cbecause of personal injury or property damage *** caused by an occurrence.\u201d Plaintiff initially argues that Brown\u2019s complaint alleging breach of an employment contract is not an \u201coccurrence,\u201d which is defined under the policy as an \u201caccident, happening or event that results in personal injury or property damage not intended from the standpoint of the insured.\u201d Plaintiff also contends that the Brown complaint does not allege any property damage or personal injury, but asserts only economic losses, which are not covered under the policy. See Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 757 N.E.2d 481 (2001) (\u201cproperty damage,\u201d defined as physical injury to tangible property, did not include intangible damages such as economic loss).\nMudron asserts that plaintiff has waived these issues by failing to raise them in the pleadings or argue them at the trial court. A review of the record confirms that plaintiff pleaded and argued the lack of occurrence and property damage issues with respect to the homeowner\u2019s policy, but it did not plead those issues in regard to the umbrella policy. Generally, questions not raised in the trial court cannot be argued for the first time on appeal. Parks v. Kownacki, 193 Ill. 2d 164, 737 N.E.2d 287 (2000). However, the waiver rule is a limitation on the parties, not on the court; we may consider an issue not raised in the trial court where necessary for a just result and for the maintenance of a sound and uniform body of precedent. See Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 786 N.E.2d 1010 (2003); see also Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783 N.E.2d 1024 (2002). Nevertheless, we need not consider the issue of waiver in this case, because we find that the trial court properly granted plaintiffs motion for judgment on the pleadings on the basis of the \u201cbusiness pursuits\u201d exclusion contained in the umbrella policy.\nThe insurance policy excludes coverage for, among other things, the \u201cbusiness pursuits of an insured.\u201d \u201cBusiness\u201d is defined under the policy as \u201cemployment, trade, profession or occupation.\u201d When this exclusion is considered in the context of the allegations of the Brown complaint, it is clear that the Brown lawsuit is predicated entirely on Mudron\u2019s business pursuits. Count I seeks injunctive relief based on the claim that Mudron and Gunderson \u201care blatantly and actively breaching [their] contractual obligations by soliciting and serving\u201d Brown\u2019s clients. Count II alleges a cause of action for breach of contract, i.e., failure to abide by the terms of the employment agreement. Count III asserts that the defendants violated the Trade Secrets Act (765 ILCS 1065/1 et seq. (West 2002)). Establishing a violation of the Trade Secrets Act requires a plaintiff to prove that the information at issue was: (1) a trade secret; (2) misappropriated; and (3) used in the defendant\u2019s business. See AutoMed Technologies, Inc. v. Eller, 160 F. Supp. 2d 915 (N.D. Ill. 2001); Southwest Whey, Inc. v. Nutrition 101, Inc., 117 F. Supp. 2d 770 (C.D. Ill. 2000).\nThus, each count of Brown\u2019s complaint seeks relief from, or damages for, Mudron\u2019s alleged violation of the terms of his employment agreement with Brown. In Board of Managers of the Townhomes of Woodland Hills Condominium Ass\u2019n v. State Farm Fire & Casualty Co., 329 Ill. App. 3d 531, 768 N.E.2d 874 (2002), the plaintiff condominium association sued James and Georgia Reg\u00e1s in their capacities as developers and owners of the condominium buildings and as directors of the condominium association. The complaint alleged faulty construction, failure to collect and pay assessments, failure to properly act as directors, and fraud. The Regases tendered defense of the suit to State Farm under their homeowner\u2019s and personal liability umbrella policies. State Farm denied coverage, the Regases settled and the plaintiff sued State Farm for wrongful failure to defend the Re-gases under an assignment of claim. In affirming the trial court\u2019s ruling in favor of State Farm, the court stated:\n\u201cHere, the allegations of the underlying complaint utterly fail to state facts that either actually or potentially bring the case within the policies\u2019 coverage. The policies exclude injuries arising from business pursuits, business property, and business operations. Allegations that the Regases are liable because they were directors or managers are nothing more than rephrasings of the fact that the alleged damages arose from the Regases\u2019 status as owners and developers. Contrary to the Association\u2019s contention, its complaint failed to allege sufficiently that the damages arose from events \u2018wholly independent\u2019 of the business interest in the property.\u201d Board of Managers, 329 Ill. App. 3d at 534-35, 768 N.E.2d at 877-78.\nSimilarly in this case, each count of the Brown complaint arises from Mudron\u2019s employment relationship with Brown. Nothing in the complaint alleges damages or seeks relief from events independent of the employment agreement.\nMudron contends that the business pursuits exclusion does not apply because a business pursuit has been defined as a \u201ccontinuous or regular activity, done for the purpose of returning a profit.\u201d Badger Mutual Insurance Co. v. Ostry, 264 Ill. App. 3d 303, 308, 636 N.E.2d 956, 959 (1994); see also State Farm Fire & Casualty Co. v. Moore, 103 Ill. App. 3d 250, 430 N.E.2d 641 (1981). Mudron argues that the Brown complaint does not allege that he has been paid a fee or received any compensation whatsoever in connection with his alleged activities. Of course, the Brown complaint does allege that Mudron received compensation pursuant to the employment agreement. That agreement is the legal foundation upon which each count of the Brown complaint is based. That agreement is also clearly a business pursuit and damages arising from it are excluded from coverage under the umbrella policy. Accordingly, the trial court properly granted plaintiffs motion for judgment on the pleadings.\nFor the reasons stated above, the judgment of the circuit court is affirmed.\nAffirmed.\nHOLDRIDGE and McDADE, JJ., concur.\nCount IV of Brown\u2019s complaint is directed solely against Cornolo and is therefore not relevant to this appeal.\nAs Mudron does not contend that plaintiff has a duty to defend under the terms of the homeowner\u2019s policy, we will not address it.", "type": "majority", "author": "PRESIDING JUSTICE SLATER" } ], "attorneys": [ "Michael S. Ferrell and Lawrence C. DiNardo (argued), both of Jones Day, of Chicago, for appellants.", "Robert Marc Chemers (argued) and Richard R. Gordon, both of Pretzel & Stouffer, Chtrd., of Chicago, for appellee." ], "corrections": "", "head_matter": "STANDARD MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. PATRICK F. MUDRON et al., Defendants-Appellants.\nThird District\nNo. 3\u201404\u20140431\nOpinion filed June 21, 2005.\nMichael S. Ferrell and Lawrence C. DiNardo (argued), both of Jones Day, of Chicago, for appellants.\nRobert Marc Chemers (argued) and Richard R. Gordon, both of Pretzel & Stouffer, Chtrd., of Chicago, for appellee." }, "file_name": "0535-01", "first_page_order": 553, "last_page_order": 558 }