{ "id": 4282990, "name": "CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. AMERICAN HARDWARE MANUFACTURERS ASSOCIATION et al., Defendants (Federal Insurance Company, Defendant-Counterclaimant and Third-Party Plaintiff-Appellee)", "name_abbreviation": "Cincinnati Insurance v. American Hardware Manufacturers Ass'n", "decision_date": "2008-11-12", "docket_number": "Nos. 1-08-0085, 1-08-0995 cons.", "first_page": "85", "last_page": "116", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 85" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "213 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448779 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "318-22" }, { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0307-01" ] }, { "cite": "315 Ill. 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AMERICAN HARDWARE MANUFACTURERS ASSOCIATION et al., Defendants (Federal Insurance Company, Defendant-Counterclaimant and Third-Party PlaintiffAppellee)." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nPlaintiff, Cincinnati Insurance Company (Cincinnati), sought an order from the circuit court of Cook County declaring that it was not obligated to defend its insureds, American Hardware Manufacturers Association (AHMA) and its executive officers, Timothy Farrell and William P Farrell (collectively, the executives), in an underlying litigation involving competing national hardware trade shows (the underlying action). By agreement, AHMA and the executives assigned their rights under the Cincinnati policies to defendant-counterclaimant, Federal Insurance Company (Federal). The circuit court denied Cincinnati\u2019s motion for summary judgment and granted summary judgment in favor of Federal, from which decision Cincinnati appeals.\nOn appeal, Cincinnati argues that the circuit court erred by: (1) finding that Federal has standing to pursue Cincinnati for defense fees based on the assignment agreement; and (2) granting Federal\u2019s summary judgment motion and denying Cincinnati\u2019s motion for summary judgment.\nI. BACKGROUND\nThis action arises from an insurance coverage dispute between Cincinnati and Federal regarding the allocation of the duty to defend and the sharing of costs associated with the defense of counterclaims from the underlying action. Cincinnati is an Illinois corporation with its principal place of business in Ohio. Federal is organized and exists pursuant to the laws of the state of Indiana with its principal place of business in the state of New Jersey. AHMA is a trade association serving the hardware, home improvement, lawn and garden, paint and decorating, and related industries. AHMA is a Delaware not-for-profit corporation with its principal place of business in Illinois.\nCincinnati issued two primary, \u201coccurrence\u201d-based insurance policies to AHMA, which provided coverage to AHMA and the executives for personal and advertising injury liability. Federal issued a \u201cclaims made,\u201d not-for-profit organization liability insurance policy affording coverage to AHMA and the executives.\nIn the underlying action in the United States District Court for the Northern District of Illinois, AHMA sought damages and other relief against Reed Elsevier, Inc. (Reed), Freeman Decorating Company and Freeman Decorating Services, Inc. (collectively, Freeman), stemming from a dispute involving competing national hardware trade shows. Reed and Freeman asserted counterclaims against AHMA and the executives asserting, inter alia, defamation per se, libel per se, breach of contract, and statutory violations of the Uniform Deceptive Trade Practices Act (815 510/1 et seq. (West 2006)), the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 505/1 et seq. (West 2006)) and the Lanham Act (15 U.S.C. \u00a71051 et seq. (2006)) (the counterclaims). Essentially, the counterclaims allege misconduct by AHMA and the executives for publishing and advertising material created by the AHMA in connection with its planned 2004 national hardware exhibition.\nCincinnati sought an order from the circuit court declaring it has no obligation to defend or indemnify AHMA and the executives for the counterclaims. Federal entered into an assignment agreement with AHMA and the executives to transfer to Federal all of their rights under the Cincinnati policies and claims against Cincinnati relating to payment or reimbursement of defense expenses incurred in defense of the counterclaims. The circuit court granted Federal\u2019s motion to add Federal as a party to Cincinnati\u2019s declaratory judgment action and substitute it for AHMA and the executives to the extent of the interests in the Cincinnati policies assigned to Federal. Federal and Cincinnati filed cross-motions for summary judgment to establish whether Cincinnati had a duty to defend AHMA and the executives on an equal basis with Federal with respect to the counterclaims. The circuit court granted summary judgment in favor of Federal and denied Cincinnati\u2019s summary judgment motion.\nA. The Insurance Policies\nCincinnati and Federal each issued separate types of insurance policies with differing policy periods, which pertinent provisions provide as follows.\n1. The Cincinnati Insurance Policies Issued to AHMA\nCincinnati issued to AHMA policy number GPP 068 29 84 for the effective dates of September 30, 2000, to September 30, 2003. The portion of the policy pertaining to personal and advertising injury liability states:\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 or \u2018advertising injury\u2019 to which this insurance applies. We will have the right and duty to defend any \u2018suit\u2019 seeking those damages. We may at our discretion investigate any \u2018occurrence\u2019 or offense and\nsettle any claim or \u2018suit\u2019 that may result.\n\u2756 * *\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(2) \u2018Advertising injury\u2019 caused by an offense committed in the course of advertising your goods, products or services ***.\u201d\nThe 2000 to 2003 Cincinnati policy also included the following exclusions:\n\u201c2. Exclusions\nThis insurance does not apply to:\na. \u2018Personal injury\u2019 or \u2018advertising injury\u2019:\n(1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity;\n(2) Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;\n(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured; or\n(4) For which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of a contract or agreement.\u201d\nThe 2000 to 2003 Cincinnati policy also includes a provision entitled, \u201cOther Insurance,\u201d which provides as follows:\n\u201c4. Other Insurance\nIf other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance\nThis insurance is primary except when b. below [triggered coverage of excess insurance] applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.\n* * *\nc. Method of Sharing\nIf all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.\u201d\nThe pertinent definitions contained within the 2000 to 2003 Cincinnati policy provide:\n\u201c1. \u2018Advertising injury\u2019 means injury arising out of one or more of the following offenses:\na. Oral or written publication of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services;\n* * *\nc. Misappropriation of advertising ideas or style of doing business; or\nd. Infringement of copyright, title or slogan.\nAdvertising means an advertisement, publicity article, broadcast or telecast.\n\u00edj\u00ed #\n12. \u2018Occurrence\u2019 means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.\n13. \u2018Personal injury\u2019 means injury, other than \u2018bodily injury,\u2019 arising out of one or more of the following offenses:\ni'fi * *\nd. Oral or written publication of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services ***.\u201d\nCincinnati issued a renewal policy to AHMA under policy number CPP 068 29 84/CPA 068 29 84, for the effective dates of September 30, 2003, to September 30, 2006. Coverage for personal and advertising liability provides:\n\u201c1. Insuring Agreement\na. We will pay those sums that the insured becomes legally obligated to pay as damages because of \u2018personal and advertising injury\u2019 to which this insurance applies. We will have the right and the duty to defend the insured against any \u2018suit\u2019 seeking those damages. However, we will have no duty to defend the insured against any \u2018suit\u2019 seeking damages for \u2018personal and advertising injury\u2019 to which this insurance does not apply. We may, at our discretion, investigate any offense and settle any claim or \u2018suit\u2019 that may result.\nb. This insurance applies to \u2018personal and advertising injury\u2019 only if:\n(1) The \u2018personal and advertising injury\u2019 is caused by an offense arising out of your business; and\n(2) The \u2018personal and advertising injury\u2019 offense was committed in the \u2018coverage territory\u2019 during the policy period >3\nThe 2003 to 2006 Cincinnati policy\u2019s exclusions for personal and advertising injury are as follows:\n\u201c2. Exclusions\nThis insurance does not apply to:\na. Knowing Violation of Rights of Another\n\u2018Personal and advertising injury\u2019 caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict \u2018personal and advertising injury.\u2019\nb. Material Published With Knowledge of Falsity\n\u2018Personal and advertising injury\u2019 arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.\nI. Infringement of Copyright, Patent, Trademark or Trade Secret\n\u2018Personal and advertising injury\u2019 arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.\nHowever, this exclusion does not apply to infringement, in your \u2018advertisement,\u2019 of copyright, trade dress or slogan.\u201d\nThe 2003 to 2006 Cincinnati policy\u2019s \u201cOther Insurance\u201d provision remained unchanged from the 2000 to 2003 policy. The 2003 to 2006 policy defines a pertinent number of terms as follows:\n\u201c1. \u2018Advertisement\u2019 means a notice that is broadcast, telecast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters. \u2018Advertisement\u2019 includes a publicity article. For purposes of this definition:\na. Notices that are published include material placed on the Internet or on similar electronic means of communication; and\nb. Regarding web-sites, only that part of a web-site that is about your goods, products or services for the purposes of attracting customers or supporters is considered an \u2018advertisement.\u2019\n16. \u2018Occurrence\u2019 means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.\n17. \u2018Personal and advertising injury\u2019 means injury, including consequential \u2018bodily injury,\u2019 arising out of one or more of the following offenses:\nt',i H*\nd. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services;\nHi Hs *\nf. The use of another\u2019s advertising idea in your \u2018advertisement\u2019; or\ng. Infringing upon another\u2019s copyright, trade dress or slogan in your \u2018advertisement. \u2019 \u201d\n2. The Federal Insurance Policies Issued to AHMA\nFederal issued a \u201cNot For Profit Organization Liability Policy\u201d to AHMA under policy number 6801-4601 for the effective dates of September 30, 2004, to September 30, 2005. The Federal policy insures that it \u201cshall pay on behalf of an Insured all Loss which such Insured becomes legally obligated to pay on account of any Claim first made against such Insured during the Policy Period or, if exercised, during the Extended Reporting Period, for *** Personal Injury or Publishers Liability committed, attempted, or allegedly committed or attempted, by such Insured before or during the Policy Period.\u201d The Federal policy contains many of the same definitions included in the Cincinnati policies, but defines \u201cPersonal Injury or Publishers\u2019 Liability\u201d as \u201ca Wrongful Act constituting false arrest, wrongful detention or imprisonment, malicious prosecution, defamation, invasion of privacy, wrongful entry or eviction, infringement of copyright or trademark, unauthorized use of title, plagiarism, or misappropriation of ideas.\u201d Also similar to the Cincinnati policies, the Federal policy states that it \u201cshall have the right and duty to defend any Claim covered by this policy,\u201d and that \u201c[c]overage shall apply even if the allegations are groundless, false or fraudulent.\u201d In addition, the Federal policy contains an \u201cOther Insurance\u201d clause that provides:\n\u201cIf Loss arising from a Claim made against any Insured is insured under any other valid policy, prior or current, then this policy shall cover such Loss, subject to its limitations, conditions, provisions and other terms, only to the extent that the amount of such Loss is in excess of the amount of payment from such other insurance, whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written only as specific excess insurance over the Limits of Liability provided in this policy.\u201d\nB. The Underlying Counterclaims\nOn January 31, 2005, Reed filed its initial counterclaim against AHMA and Timothy Farrell in the United States District Court for the Northern District of Illinois, alleging injury occurring between July 2003 and April 2004. Thereafter, on October 4, 2005, Reed filed an amended and supplemented counterclaim, while Freeman filed its own counterclaim against AHMA and the executives. The counterclaims alleged misconduct by AHMA and the executives in the form of misleading representations in various published materials and on the Internet in connection with AHMA\u2019s planned 2004 national hardware exhibition.\nReed\u2019s counterclaim alleged that it entered into a separation agreement with AHMA so that Reed could maintain ownership of the National Hardware Show for presentation in Las Vegas, Nevada, while AHMA could develop a new trade show in Chicago, Illinois. Reed alleged that, \u201cin an attempt to save its show, and to hurt Reed\u2019s show, AHMA embarked on a campaign to publicly impugn Reed\u2019s integrity in a desperate attempt to shift industry interest to AHMA\u2019s new trade show and away from the National Hardware Show.\u201d\nSimilarly, Freeman\u2019s counterclaim alleged that, \u201c[i]n furtherance of this wrongful scheme [to hurt Reed\u2019s trade show and save its own show], AHMA filed a lawsuit against Reed. Although Freeman was not at that time a named party to the lawsuit, AHMA\u2019s original [complaint] accused Freeman of, inter alia, paying kickbacks to Reed, conspiring with Reed to defraud AHMA, and other unlawful conduct.\u201d Freeman also alleged that \u201cAHMA, William Farrell and Timothy Farrell used the lawsuit as a pretext for wrongly publishing copies of the Complaint to third parties, and issuing press releases and other false and misleading statements designed to sully Reed and Freeman\u2019s reputations and make exhibitors and attendees unwilling to attend the National Hardware Show.\u201d\nThe counterclaims assert causes of action for defamation per se and libel per se against AHMA and the executives and solely against AHMA for violations of the Uniform Deceptive Trade Practices Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. The counterclaims also assert against AHMA violations of the Langham Act, including trademark infringement, false advertising, and unfair competition, in violation of the Langham Act. In addition, breach of contract, breach of release and covenant not to sue, and contractual indemnification are asserted against AHMA.\nThe defamation allegations were pled under the actual malice standard. The counterclaims alleged that, \u201c[a]t the time these statements were made, Timothy Farrell and AHMA knew that these statements were false. Alternatively, at the time the statements were made, Farrell and AHMA exhibited a reckless disregard for the falsity of these statements.\u201d The counterclaims included a prayer for punitive damages against AHMA and the executives \u201cbecause of the willful and malicious nature in which the statements were made.\u201d\nC. The Defense of AHMA and the Executives\nAHMA tendered the defense of Reed\u2019s initial counterclaim to Federal on or about February 17, 2005. On June 29, 2005, Federal agreed to advance defense expenses to AHMA and Timothy Farrell subject to a reservation of rights. AHMA and the executives tendered the defense of Reed\u2019s amended and supplemented counterclaim and Freeman\u2019s counterclaim on October 4, 2005. Federal agreed to advance defense expenses to AHMA and the executives in connection with the counterclaims subject to a complete reservation of rights on or about November 23, 2005.\nAHMA and the executives also sought a defense for the counterclaims from Cincinnati. Cincinnati commenced its declaratory judgment action on May 25, 2005, prior to its denial of coverage to AHMA and the executives by letter dated May 27, 2005.\nD. The Assignment Agreement\nOn May 17, 2006, Federal entered into an assignment agreement with AHMA and the executives in which AHMA and the executives assigned to Federal \u201cany and all rights, claims or causes of action that AHMA and/or the Executives may have against Cincinnati, however denominated, based on, arising out of, or relating to payment or reimbursement under the Cincinnati Policies of AHMA\u2019s and the Executives\u2019 Defense Expenses incurred in connection with the Counterclaims.\u201d Federal agreed to reimburse AHMA and the executives for expenses incurred by AHMA and the executives related to or arising out of their cooperation in the defense of the Cincinnati declaratory judgment action. Federal also agreed to pay AHMA\u2019s and the executives\u2019 past, present and future defense expenses related to the counterclaims subject to the reservation of rights letters sent to AHMA. The assignment agreement also stated that \u201cFederal shall defend, indemnify and hold harmless AHMA and the Executives in the Cincinnati Dec. Action and in any suit, claim, counterclaim or cross-claim by Cincinnati relating to or arising out of AHMA and the Executives\u2019 assignment to Federal of their rights, claims, causes of action under the Cincinnati Policies with respect to payment of Defense Expenses incurred by AHMA and the Executives in defense of the Counterclaims. \u2019 \u2019\nE. Federal\u2019s Motion for Addition of Parties\nOn June 8, 2006, Federal filed a motion for addition of parties and leave to file a counterclaim and third-party complaint pursuant to sections 2 \u2014 1008, 2 \u2014 616 and 2 \u2014 406(c) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 1008, 2 \u2014 616, 2 \u2014 406(c) (West 2006)). Federal asserted that, as a result of the assignment agreement, it had succeeded to the rights of AHMA and the executives to receive reimbursement of their defense expenses from Cincinnati in connection with the counterclaims. Federal alleged that, in addition to its rights as the insureds\u2019 assignee, it had independent claims against Cincinnati based upon their respective policies\u2019 \u201cother insurance\u201d clauses for contribution for the defense expenses Federal advanced to AHMA and the executives for the underlying counterclaims. Federal claimed that Cincinnati has a defense obligation under its policies and that Federal is entitled to reimbursement for some or all of the defense expenses it has paid.\nOn July 21, 2006, Cincinnati filed a memorandum of law in opposition to Federal\u2019s motion for addition of parties. Cincinnati argued that the assignment agreement lacked consideration and, therefore, was void. Cincinnati also asserted that the assignment agreement was a partial assignment that is prohibited by Illinois law absent the obligor\u2019s consent. Cincinnati contended that the anti-assignment clause in its policies prohibits the assignment of rights and duties. In addition, Cincinnati argued that public policy precluded the assignment agreement.\nOn August 10, 2006, the circuit court granted Federal\u2019s motion and, thereafter, Federal was added as a third-party defendant.\nF. Federal\u2019s Counterclaim and Third-Party Complaint\nOn August 14, 2006, Federal filed its counterclaim and third-party complaint against Cincinnati, in which it alleged causes of action for breach of duty to defend and equitable contribution for allocation of defense expenses in connection with the counterclaims against AHMA and the executives. Federal sought a declaratory judgment that it is entitled to payment by Cincinnati of contribution of all or part of the defense expenses it advanced to AHMA and the executives.\nG. Cincinnati\u2019s Complaint for Declaratory Judgment\nCincinnati\u2019s initial complaint for declaratory judgment was filed after Reed\u2019s counterclaim was first filed, but before Reed filed its amended and supplemented counterclaim and Freeman filed its counterclaim. Cincinnati\u2019s May 25, 2005, complaint alleged that AHMA and the executives were not covered for the counterclaims under either Cincinnati policy. Cincinnati filed an amended complaint for declaratory judgment on August 31, 2006, after Federal was added as a third-party defendant, which alleged the same as the initial complaint, asserting it has no duty to defend or indemnify AHMA and the executives.\nH. Cross-Motions for Summary Judgment on the Duty to Defend\nOn February 15, 2007, Federal moved for summary judgment regarding Cincinnati\u2019s duty to defend. Federal argued that summary judgment in its favor was warranted because the allegations asserted in the counterclaims fell within the potential coverage afforded by Cincinnati\u2019s policies. Federal contended that the statements underlying both of the counterclaim\u2019s defamation counts for commercial disparagement fell within the scope of \u201c[o]ral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services,\u201d covered by the 2003 to 2006 Cincinnati policy. Federal also asserted that, the numerous allegations by Reed that AHMA deceptively advertised its 2004 trade show by suggesting that it was the continuation of the trade show to which Reed claimed exclusive rights, separately implicated the covered offenses of \u2018 \u2018 Misappropriation of advertising ideas or style of doing business\u201d and \u201cuse of another\u2019s advertising idea in your \u2018advertisement\u2019 \u201d under both Cincinnati policies. In addition, Federal asserted that, under Illinois law, the policies\u2019 personal and advertising injury offenses encompassed Reed\u2019s count for alleged trademark infringement.\nFederal requested summary judgment to declare that (1) Cincinnati has a duty to defend AHMA and the executives in the counterclaims under both Cincinnati policies; (2) the \u201cother insurance\u201d provisions contained in their respective policies require Cincinnati to pay one-half of all defense expenses as they are incurred by AHMA and the executives in the underlying counterclaims; and (3) Federal is entitled to recover from Cincinnati one-half of the defense costs it has paid on behalf of Federal\u2019s and Cincinnati\u2019s mutual insureds.\nCincinnati filed its cross-motion for summary judgment on October 12, 2007. Cincinnati argued that it has no duty to defend the defamation counterclaims or the counts alleging violations of the Uniform Deceptive Trade Practices Act, the Illinois Consumer Fraud Act or the Langham Act because they do not allege any fortuitous loss. Cincinnati also asserted that it has no duty to defend the counterclaims for trademark infringement because there is no coverage under its policies. Further, Cincinnati contended it has no duty to defend the breach of contract claims because those claims allege \u201ceconomic loss,\u201d which is not covered in its policies. Finally, Cincinnati argued that, even if the circuit court were to find a duty to defend, Federal did not meet its burden of proof as to the defense costs it seeks to recover.\nI. The Circuit Court\u2019s Ruling on the Cross-Motions for Summary Judgment\nOn December 12, 2007, the circuit court conducted a hearing on the cross-motions for summary judgment. Federal argued that the personal and advertising injuries are claims based on negligence and that Illinois law provides insurance policies cannot have exclusions for intent to negate the duty to defend. Counsel for Federal asserted that an insurer cannot, on the one hand, grant coverage for intentional acts under a personal and advertising injury provision, but on the other hand, preclude coverage by exclusions for intent, because an irreconcilable conflict and ambiguity are created. Federal contended that Cincinnati has a duty to defend because there is a possibility of coverage under the allegations in the counterclaims. Federal noted the difference between the duty to defend and the duty to indemnify.\nCincinnati responded that insurers cannot have coverage for an expected or intended injury. Cincinnati argued that the counterclaims include clear allegations of expected and intended injuries. Cincinnati also asserted that the counterclaims\u2019 allegations included \u201cknowing\u201d and \u201cwillful\u201d statutory violations. Cincinnati contended that, because the counterclaims allege intentional harm, it has no duty to defend.\nFollowing the parties\u2019 arguments, the circuit court ruled in favor of Federal and against Cincinnati. The court noted that language of intentional acts was replete throughout the counterclaims. Nevertheless, the court held that Cincinnati has a duty to defend AHMA and the executives in the underlying counterclaims because of the potential for coverage.\nOn December 14, 2007, the circuit court entered a written ruling on its decision to grant summary judgment in favor of Federal and against Cincinnati. In its ruling, the circuit court found: (1) Cincinnati has a duty to defend AHMA and the executives under its 2000 to 2003 and 2003 to 2006 policies with respect to the counterclaims in the underlying action; (2) the \u201cother insurance\u201d provisions contained in the insurers\u2019 respective policies require Cincinnati to pay one-half of all reasonable and necessary defense expenses for the counterclaims as they are incurred by AHMA and the executives going forward; (3) Federal is entitled to recover from Cincinnati one-half of the reasonable and necessary past defense costs it expended on behalf of AHMA and the executives for the counterclaims; and (4) there is no just reason for delaying either enforcement of the judgment or appeal of the order under Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)).\nOn January 4, 2008, Cincinnati filed a notice of appeal under number 1 \u2014 08\u20140085, challenging the circuit court\u2019s August 10, 2006, and December 14, 2007, orders to add Federal as a third-party defendant and grant Federal summary judgment on the issue of Cincinnati\u2019s duty to defend. On March 19, 2008, the court granted Federal\u2019s motion to certify the August 10, 2006, order as final and appealable. Cincinnati then filed a second notice of appeal on April 14, 2008, under number 1 \u2014 08\u20140995. On May 8, 2008, this court granted Cincinnati\u2019s motion to consolidate the appeals.\nII. ANALYSIS\nOn appeal, Cincinnati argues as a threshold issue that Federal has neither contractual nor equitable rights to pursue Cincinnati for defense fees. Cincinnati asserts that the circuit court erred by finding that Federal has standing to participate in the declaratory judgment action as a party based on the assignment agreement. Cincinnati contends that the assignment of rights from AHMA and the executives to Federal is void because it lacks consideration. Cincinnati also maintains that the assignment agreement is void because partial assignments are void absent the obligor\u2019s consent. According to Cincinnati, its anti-assignment clause prohibited AHMA\u2019s and the executives\u2019 assignment of their rights under the Cincinnati policies to Federal. Additionally, Cincinnati argues that public policy precludes the assignment agreement. Further, Cincinnati contends that the court erred by granting Federal\u2019s summary judgment motion and denying its cross-motion on the issue of duty to defend. Finally, Cincinnati asserts that Federal has no rights under the doctrine of equitable contribution to pursue Cincinnati for defense costs.\nFederal responds that Cincinnati must defend AHMA and the executives because Cincinnati\u2019s policies potentially cover several offenses alleged in the counterclaims. Federal maintains that Illinois law entitles it to recover one-half of the insureds\u2019 defense costs from Cincinnati. Federal asserts that the circuit court correctly held that Cincinnati is required to reimburse Federal for one-half of the expenses it has incurred in defending AHMA and the executives and also to pay one-half of the insureds\u2019 defense expenses going forward.\nA. Standard of Review\nThe construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court which are appropriate subjects for disposition by summary judgment. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Summary judgment should be granted only if the pleadings, depositions, admissions and affidavits, construed liberally and in favor of the nonmoving party, demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2006); see also Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill. 2d 102, 106 (2007). Review of an order granting summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).\nIllinois courts have not addressed the standard of review for a motion to substitute parties due to a change of interest under section 2 \u2014 1008(a) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1008(a) (West 2006)). Illinois courts have held that when determining whether there was error in permitting a party substitution under section 2 \u2014 1008(b) due to the death of a party, \u201cthe overriding consideration on appeal is whether substantial justice is being done between the litigants and whether it was reasonable, under the circumstances, to compel the other party to proceed on the merits.\u201d Senese v. Climatemp, Inc., 289 Ill. App. 3d 570, 583 (1997), citing Sickler v. National Dairy Products Corp., 67 Ill. 2d 229, 234 (1977). The court in Senese noted that \u201cthe ultimate question on review is whether the [circuit] court properly exercised its discretion in an attempt to serve justice.\u201d 289 Ill. App. 3d at 583. Ultimately, the Senese court found that the language of section 2 \u2014 1008(b) \u201cuses the permissive \u2018may\u2019 rather than the mandatory \u2018shall\u2019; therefore, the court has discretion as to whether to dismiss the action.\u201d 289 Ill. App. 3d at 583.\nIn this case, section 2 \u2014 1008(a) also contains permissive language, stating that \u201con motion an order may be entered that the proper parties be substituted or added, and that the cause or proceeding be carried on with the remaining parties and new parties, with or without a change in the title of the cause.\u201d (Emphasis added.) 735 ILCS 5/2\u2014 1008(a) (West 2006). Accordingly, this court likewise will review the circuit court\u2019s decision to grant Federal\u2019s motion under section 2 \u2014 1008(a) for abuse of discretion \u201cin an attempt to serve justice.\u201d Senese, 289 Ill. App. 3d at 583.\nFinally, assignments are governed by contract law and, as such, are reviewed de novo. Henderson v. Roadway Express, 308 Ill. App. 3d 546, 548 (1999).\nB. The Validity of the Assignment Agreement\nCincinnati initially argues that the assignment agreement was invalid because (1) the agreement lacked consideration; (2) partial assignments are prohibited absent the obligor\u2019s consent; (3) Cincinnati\u2019s anti-assignment clauses in its policies prohibit assignment of AHMA\u2019s and the executives\u2019 rights to Federal; and (4) public policy precludes the assignment.\n1. Whether the Assignment Agreement was Supported by Consideration\nCincinnati argues that the assignment agreement lacked consideration because it contained a boilerplate recital stating that \u201cin consideration of the foregoing and mutual promises and representations set forth below and other good and valuable consideration, the adequacy of which is hereby acknowledged, AHMA, the Executives, and Federal hereby agree as follows.\u201d Cincinnati asserts that this language does not amount to proper consideration. Cincinnati also contends that Federal\u2019s agreement to pay AHMA\u2019s legal fees was not proper consideration.\nFederal responds that the assignment agreement provided adequate consideration, including a recital stating that \u201cFederal has agreed to advance to, or on behalf of AHMA, AHMA\u2019s and the Executives\u2019 Defense Expenses subject to reservation of rights letters\u201d and that \u201cFederal has agreed to pay to, or on behalf of, AHMA, over $466,000 of AHMA\u2019s and the Executives\u2019 Defense Expenses in the Underlying Action.\u201d During oral argument before this court, Federal stated that it withdrew its reservation of rights as part of its consideration. In addition, Federal asserts that there was proper consideration because the assignment agreement stated that \u201cFederal agrees to pay AHMA\u2019s and the Executives\u2019 past, present and future Defense Expenses related to the Counterclaims,\u201d and also agreed to reimburse AHMA and the executives for expenses \u201crelated to or arising out of their reasonable cooperation\u201d with Federal in defending the counterclaims. Federal maintains that it shouldered the substantial burden of pursuing the insureds\u2019 claims on their behalf in the declaratory judgment action with a correspondingly substantial benefit to AHMA and the executives. Federal claims that, as of the date it filed its response brief, the total defense costs amount to $5.6 million. Federal notes that the boilerplate recital that Cincinnati refers to provides that the assignment agreement was made \u201cin consideration of the foregoing,\u201d which includes the other recitals included in the agreement.\n\u201cAn assignment occurs when \u2018there is a transfer of some identifiable interest from the assignor to the assignee.\u2019 \u201d Brandon Apparel Group v. Kirkland & Ellis, 382 Ill. App. 3d 273, 283 (2008), quoting Klehm v. Grecian Chalet, Ltd., 164 Ill. App. 3d 610, 616 (1987). \u201c \u2018Generally, no particular form of assignment is required; any document which sufficiently evidences the intent of the assignor to vest ownership of the subject matter of the assignment in the assignee is sufficient to effect an assignment.\u2019 \u201d Brandon Apparel, 382 Ill. App. 3d at 283, quoting Stoller v. Exchange National Bank of Chicago, 199 Ill. App. 3d 674, 681 (1990). A valid assignment \u201cneeds only to assign or transfer the whole or a part of some particular thing, debt, or chose in action and it must describe the subject matter of the assignment with sufficient particularity to render it capable of identification.\u201d Klehm, 164 Ill. App. 3d at 616. An assignment operates \u201c \u2018to transfer to the assignee all the right, title or interest of the assignor in the thing assigned.\u2019 \u201d Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 350 (2000), quoting Litwin v. Timbercrest Estates, Inc., 37 Ill. App. 3d 956, 958 (1976). \u201cA basic principle of law applicable to all assignments is that they are void unless the assignor has either actually or potentially the thing which he attempts to assign.\u201d Owens, 316 Ill. App. 3d at 350. An assignee \u201ccan obtain no greater right or interest than that possessed by the assignor.\u201d Owens, 316 Ill. App. 3d at 350. \u201cWhether an assignment has occurred \u2018is dependent upon proof of intent to make an assignment and that intent must be manifested.\u2019 \u201d Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 387 (2004), quoting Strosberg v. Brauvin Realty Services, Inc., 295 Ill. App. 3d 17, 30 (1998). Assignments are \u201csubject to the same requisites for validity as are other contracts, such as intent, mutuality of assent, capacity to contract, legal subject matter, and consideration.\u201d Desai, 353 Ill. App. 3d at 387.\n\u201cAny act or promise that benefits one party or disadvantages the other is sufficient consideration to support the formation of a contract.\u201d Kalis v. Colgate-Palmolive Co., 337 Ill. App. 3d 898, 900 (2003). For example, a promise to forego pursuit of a legal claim will be determined to be adequate consideration to support formation of a contract even if the claim is invalid, provided that it is asserted in good faith. Kalis, 337 Ill. App. 3d at 900-01.\nIn F.H. Prince & Co. v. Towers Financial Corp., 275 Ill. App. 3d 792, 802 (1995), the court held that the release of an arguably uncollectible debt provided consideration to support a settlement agreement and highlighted an additional element of value provided by settlement of even a questionable claim. The court noted that \u201c[settlement of the [plaintiff\u2019s] litigation also relieved [defendants] of the need to continue to defend against that claim and to incur additional defense costs related thereto.\u201d F.H. Prince, 275 Ill. App. 3d at 802.\nIn Daugherty v. Blaase, 191 Ill. App. 3d 496, 499 (1989), the court held that \u201can insured may assign a cause of action to an insurance company in consideration of the insurance company\u2019s settlement before judgment of a claim against the insured.\u201d The court found that in the absence of fraud or bad faith, \u201ca claim assigned prior to judgment constitutes a sufficient potential claim to make the assignment valid.\u201d Daugherty, 191 Ill. App. 3d at 499-500. Furthermore, the court noted that \u201cpermitting assignments between an insured and an insurance company both encourages the early settlement of lawsuits and relieves our overburdened court system.\u201d Daugherty, 191 Ill. App. 3d at 500.\nIn this case, the insureds, AHMA and the executives, assigned to Federal their right to recover defense costs from Cincinnati for the underlying counterclaims. Federal is benefitted by obtaining a legal right to recover the defense expenses it has expended to date to defend its insureds in the counterclaims. AHMA and the executives likewise benefitted because they are relieved of the need to continue to defend against the counterclaims. Moreover, Federal is disadvantaged because it must continue to pay the ongoing defense costs and to reimburse AHMA and the executives for their expenses arising out of their cooperation with Federal in defending the counterclaims and Cincinnati\u2019s declaratory judgment action. As uncollectible debt has been held to be sufficient consideration in F.H. Prince, then for the purposes of this case, a collectible debt such as one-half of the defense expenses incurred to defend the insureds in the counterclaims likewise must serve as proper consideration for the assignment agreement. Based on the foregoing, we find that adequate consideration supports the assignment agreement. See Kalis, 337 Ill. App. 3d at 900-01; F.H. Prince, 275 Ill. App. 3d at 802.\n2. Whether the Assignment Agreement Is a Prohibited Partial Assignment\nCincinnati next argues that the assignment agreement is a partial assignment that is prohibited absent the obligor\u2019s consent. Essentially, Cincinnati asserts that the assignment is partial because AHMA and the executives only assigned their right to recover defense expenses, but not their rights related to indemnity.\nFederal responds that Cincinnati\u2019s argument improperly conflates its separate duties to defend and indemnify under its policies. Federal argues that, because the duties to defend and indemnify are separate, the insureds\u2019 assignment of their rights in their entirety to Federal with respect to one of these duties \u2014 the duty to defend \u2014 constitutes a complete assignment of such rights. Federal also points out that if this court were to rule otherwise, the purpose underlying the rule against partial assignments \u2014 avoidance of multiple suits \u2014 would be frustrated.\nIn Illinois, \u201c[a] partial assignment of an instrument is not binding on the obligor absent the obligor\u2019s consent.\u201d Service Adjustment Co. v. Underwriters at Lloyd\u2019s, London, 205 Ill. App. 3d 329, 335 (1990). Illinois courts have applied this rule to prevent the obligor from \u201c \u2018belong] vexed twice by the same action.\u2019 \u201d Service Adjustment, 205 Ill. App. 3d at 335, quoting Bain v. Financial Security Life Insurance Co., 53 Ill. App. 3d 702, 706 (1977). The Service Adjustment court, however, noted that application of this rule \u201cis no longer compelling because of the civil practice rules requiring joinder of necessary parties.\u201d 205 Ill. App. 3d at 335.\nBased on Service Adjustment, Cincinnati\u2019s argument on this issue is misplaced because the rule against partial assignments refers to the division of interest in a right among multiple persons or entities, not division of the right that was assigned. In other words, if AHMA and the executives assigned their rights to recover defense costs to Federal and other persons, that would be considered a partial assignment under Illinois law. The Service Adjustment court\u2019s reference to the civil practice rules requiring joinder of necessary parties supports this interpretation. The bar against partial assignment appears to be logistical for the purposes of fairness to multiple parties that share an interest in the thing that was assigned. Bain is illustrative here.\nIn Bain, the defendant, Financial Security Life Insurance Company (Financial), had purchased certain real property and improvements from Metromodular Corporation (Metromodular). Financial paid part of the purchase price in cash at closing and the balance by its interest-bearing promissory note in the principal amount of $120,000, payable to Metromodular. Thereafter, 100% of the interests in the promissory note were sold and assigned by Metro-modular to the 36 plaintiffs and the individual defendant, Alva Rauch. The 36 plaintiffs were holders of 119/120th interests in the note, while Rauch held l/120th interest. Thereafter, Metromodular filed for bankruptcy. The 36 plaintiffs, as assignees of 119/120ths of the interests in Metromodular, sued Financial on the note and named Rauch as an additional party. The circuit court granted the plaintiffs\u2019 summary judgment motion and entered judgment on the note against Financial. Damages were calculated against Financial on the basis of 119/120ths of the amount due. On appeal, Financial questioned the standing of the 36 plaintiffs to sue on partial assignments of a chose in action.\nThe Bain court\u2019s findings illustrate the proper context of a \u201cpartial assignment\u201d:\n\u201cAt the time the [circuit] court entered its order for summary judgment, the plaintiffs complaint did name all of the assignees of the note and, therefore, all parties were before the trial court. We note, too, that the trial court itself could have brought the defendant Rauch into the case pursuant to section 25(1) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 25(1)) which provides:\nTf a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in. If a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party.\u2019\nThe procedure was not herein followed and the effect of plaintiffs\u2019 act in naming Rauch a party defendant is, quite frankly, to force, at plaintiffs\u2019 unfettered discretion, the defendant Rauch and the defendant Insurance Company to either litigate a claim, which either or both of them may very well not wish to litigate, or, in the case of defendant Rauch, face the real possibility of being collaterally estopped at a later date and, in the case of defendant Insurance Company, face the real possibility of being vexed twice by the same action. This is exactly the posture in which we find this case at this time in light of the fact that the trial court did not enter any order with regard to defendant Rauch, although it did find the amount due defendant Rauch on the note in question.\u201d Bain, 53 Ill. App. 3d at 706.\nUltimately, the Bain court held that in cases where in excess of 99% of the holders of an interest in an assignment involved wish to seek an adjudication of their rights, \u201cthe ends of equity would not be adequately served by denying them an adjudication because the holder of l/120th of that interest does not choose to join.\u201d Bain, 53 Ill. App. 3d at 706.\nAccordingly, based on Service Adjustment and Bain, the assignment agreement in this case does not qualify as a partial assignment prohibited under Illinois law. See Service Adjustment, 205 Ill. App. 3d at 335; Bain, 53 Ill. App. 3d at 706. We find that the assignment agreement was a full assignment of interest to one assignee \u2014 Federal.\n3. Whether Cincinnati\u2019s Anti-Assignment Clause Prohibits Assignment\nCincinnati next argues that its policies each contain an unambiguous anti-assignment clause that specifically states, \u201cfy]our rights and duties under this policy may not be transferred without our written consent except in the case of death of an individual named insured.\u201d Cincinnati contends that the anti-assignment clause is enforceable here, but also concedes in its brief that \u201c [a]nti-assignment clauses do not prohibit assignment of rights to an insurance recovery for a loss made after that loss has taken place.\u201d Cincinnati maintains that, because the counterclaims are still pending, the exception to the enforcement of anti-assignment clauses for assignments after loss is not applicable here.\nFederal responds that Cincinnati cannot rely on its anti-assignment clause because it has wrongfully denied coverage to AHMA and the executives, citing Navlyt v. State Farm Fire & Casualty Co., 62 Ill. App. 3d 387, 392 (1978). Federal argues that Cincinnati cannot disclaim all obligations under its policies and simultaneously insist that the insureds obtain its consent to transfer rights that Cincinnati contends do not exist. In addition, Federal asserts that the exception to the enforcement of anti-assignment clauses for assignments after loss is applicable here because the claim arose after the counterclaims were filed. According to Federal, the defense costs arose when the allegations contained in the counterclaims triggered a duty to defend.\nIn Young v. Chicago Federal Savings & Loan Ass\u2019n, 180 Ill. App. 3d 280 (1989), the defendant, Chicago Federal Savings & Loan Association (Chicago Federal), received a mortgage from a nonparty to secure a note for $21,500. Thereafter, the title company issued its loan policy insuring the mortgage. During the term of the policy, the real estate taxes on the mortgaged property became delinquent. The taxes were paid by a third party who eventually acquired a tax deed for the property, which extinguished Chicago Federal\u2019s mortgage interest. Once Chicago Federal discovered that the third party had been granted a tax deed for the property, it informed the title company, which denied coverage under its policy because it did not cover liens attaching after the date of the policy. Chicago Federal then assigned the mortgage to the plaintiff, who paid $5,000 in consideration. After the assignment, the title company contacted Chicago Federal and stated that it would reimburse Chicago Federal in the amount of $14,362.86 in order to maintain a sound business relationship. The plaintiff filed a lawsuit to recover these proceeds. The circuit court granted summary judgment in favor of the plaintiff and entered judgment in her favor for $14,362.86.\nOn appeal, Chicago Federal argued that its assignment to the plaintiff was invalid because the title company did not consent to the assignment. The Young court affirmed the circuit court\u2019s decision. The court held that, when Chicago Federal assigned its policy to the plaintiff while its claim was still pending before the title company, \u201cit assigned its right to the policy proceeds, a chose in action.\u201d Young, 180 Ill. App. 3d at 285. The court stated, \u201c[a]n insurance policy that is assigned after a claim arises is an assignment of the policy proceeds; such a transaction results in assignment of a chose in action which does not require the insurer\u2019s consent.\u201d Young, 180 Ill. App. 3d at 285.\nThe court also referred to Couch on Insurance in support of its holding:\n\u201c \u2018[T]he great weight of authority supports the rule that general stipulations in policies prohibiting assignments thereof except with the consent of the insurer apply to assignments before loss only, and do not prevent an assignment after loss, for the obvious reason that the clause by its own terms ordinarily prohibits merely the assignment of the policy, as distinguished from a claim arising thereunder, and the assignment before loss involves a transfer of a contractual relationship while the assignment after loss is the transfer of a right to a money claim.\u2019 \u201d Young, 180 Ill. App. 3d at 285, quoting 16 Couch on Insurance \u00a763:40, at 763-65 (2d rev. ed. 1983).\nPertinent here, the Ohio Supreme Court further elaborated on this issue:\n\u201cThe negation of the anti-assignment clause does not produce an unjust result for the insurer. The idea that an insurer would have to defend both the transferor and the transferee for the same risk is not sound. If the right to a defense has been transferred to a successor, the transferor no longer has that right. The right cannot both be transferred and retained.\u201d Pilkington North America, Inc. v. Travelers Casualty & Surety Co., 112 Ohio St. 3d 482, 496, 861 N.E.2d 121, 143 (2006).\nIn this case, as Cincinnati correctly points out, the counterclaims are still pending. AHMA and the executives assigned to Federal their rights to the policy proceeds, namely, the defense costs, after the counterclaims were filed. The assignment was the transfer of a right to a \u201cmoney claim\u201d asserted after the loss has taken place because the defense costs can be defined and are not contingent, even though the amount of defense costs continues to grow. As in Young, this transaction resulted in the assignment of a chose in action, which does not require Cincinnati\u2019s consent. Young, 180 Ill. App. 3d at 285. Therefore, we find that Cincinnati\u2019s anti-assignment clause did not prohibit the assignment agreement. See Young, 180 Ill. App. 3d at 285.\n4. Whether the Assignment Agreement Violates Public Policy\nCincinnati next contends that the assignment agreement violates public policy because it allows \u201can impermissible intrusion by a stranger into the attorney-client relationship.\u201d Cincinnati relies upon Clement v. Prestwich, 114 Ill. App. 3d 479 (1983), in support of its argument. Cincinnati asserts that the holding in Clement is applicable because AHMA and the executives assigned to Federal their rights against Cincinnati with regard to Cincinnati\u2019s duty to provide a legal defense for the counterclaims.\nFederal responds that Cincinnati\u2019s argument is without merit because it fails to cite any authority precluding an assignment agreement such as the one in this case. Federal argues that Clement is inapplicable because the assignment in that case involved a legal malpractice claim. Federal asserts that an insurer\u2019s contractual obligation to defend its insured is not analogous to or equivalent with an attorney\u2019s fiduciary duties to his client, citing Nielsen v. United Services Automobile Ass\u2019n, 244 Ill. App. 3d 658 (1993).\n\u201cIn Illinois, there is no fiduciary relationship between an insurance company and an insured.\u201d Nielsen, 244 Ill. App. 3d at 666. Here, the assignment involved recovery of defense costs arising from an insurer\u2019s duty to defend and not a legal malpractice claim as in Clement.\nA client\u2019s claim for legal malpractice arises from a personal relationship between client and attorney and involves a claim that the attorney has breached a personal duty to the client. See Clement, 114 Ill. App. 3d at 480. In holding that assignment of legal malpractice claims violate public policy, the Clement court reasoned:\n\u201c \u2018It is the unique quality of legal services, the personal nature of the attorney\u2019s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty, and who have never had any prior connection with the assignor or his rights. *** The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.\u2019 \u201d 114 Ill. App. 3d at 481, quoting Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83, 87 (1976).\nThe public policy concerns raised by the assignment of legal malpractice claims do not arise under the circumstances of this case. The record supports that Federal is not attempting to intrude into any attorney-client relationship, rather, it seeks reimbursement of defense expenses it incurred while defending mutual insureds under both the Cincinnati and Federal insurance policies. Therefore, Clement is inapplicable. We find that the assignment agreement in this case raises no public policy concerns. See Nielsen, 244 Ill. App. 3d at 666.\nC. The Duty to Defend\nCincinnati next argues that the circuit court erred by finding that it has a duty to defend AHMA and the executives in the underlying counterclaims. Cincinnati asserts that the duty to defend has not been triggered because there is no potential for coverage. Cincinnati maintains that the counterclaims allege nonfortuitous loss, which is not covered under its policies. In addition, Cincinnati contends that Federal has not established that Cincinnati has a duty to defend.\nFederal responds that the counterclaims allege several offenses potentially covered under Cincinnati\u2019s policies, thereby triggering Cincinnati\u2019s duty to defend. Federal argues that Cincinnati cannot conclusively eliminate any potential coverage by application of express or purportedly implicit policy exclusions. Federal asserts that Cincinnati\u2019s attempts to negate the duty to indemnify cannot be used to avoid its duty to defend.\nAn insurer\u2019s duty to defend is determined by comparing the allegations in the underlying complaint to the relevant provisions of the insurance policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 107-08 (1992). The threshold for pleading a duty to defend is minimal. Management Support Associates v. Union Indemnity Insurance Co. of New York, 129 Ill. App. 3d 1089, 1096 (1984). If an underlying complaint alleges facts within or potentially within coverage, the insurer is obligated to defend its insured even if the allegations are groundless, false or fraudulent. Hartford Fire Insurance Co. v. Whitehall Convalescent & Nursing Home, Inc., 321 Ill. App. 3d 879, 888 (2001). This court recently held that consideration of a third-party complaint in determining a duty to defend is in line with the general rule that a circuit court may consider evidence beyond the underlying complaint if in doing so, the circuit court does not determine an issue critical to the underlying action. American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017, 1031-32 (2008). The insurer justifiably refuses to defend the insured if it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the cause within or potentially within coverage. Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 439 (1994); Outboard Marine, 154 Ill. 2d at 125. If several theories of recovery are alleged in the underlying complaint against the insured, the insurer\u2019s duty to defend arises even if only one of several theories is within the potential coverage of the policy. Hartford Fire Insurance, 321 Ill. App. 3d at 888, citing Bituminous Casualty Corp. v. Fulkerson, 212 Ill. App. 3d 556, 564 (1991). \u201cFurthermore, if the insurer relies on an exclusionary provision, it must be clear and free from doubt that the policy\u2019s exclusion prevents coverage.\u201d Hartford Fire Insurance, 321 Ill. App. 3d at 888.\n1. Whether the Fortuity Doctrine is Applicable\nCincinnati contends that the defamation and libel counts alleged in the counterclaims do not allege any fortuitous loss and, therefore, no duty to defend was triggered. Cincinnati asserts that its 2003 to 2006 policy does not cover a lawsuit that alleges nonfortuitous loss. Relying on Board of Education of Maine Township High School District 207 v. International Insurance Co., 292 Ill. App. 3d 14 (1997), and Viking Construction Management, Inc. v. Liberty Mutual Insurance Co., 358 Ill. App. 3d 34 (2005), Cincinnati argues that all insurance is subject to the limitation that it is only applicable to fortuitous loss. In addition, Cincinnati maintains that it has no duty to defend intentional torts such as defamation and libel.\nFederal responds that Cincinnati has conflated intentional acts with intentionally caused injuries. Federal argues that the assertion of intentional acts does not run afoul of the fortuity requirement. Federal notes that none of the cases cited by Cincinnati involve the personal and advertising injury coverage at issue here. Federal asserts that, to expressly grant coverage for intrinsically intentional conduct and at the same time disclaim a duty to defend because the underlying allegations assert intentional conduct suggests that the Cincinnati policies either provide virtually nonexistent coverage or contain a fatal ambiguity. Federal contends that, if Cincinnati\u2019s reasoning is correct\u2014 that personal and advertising injury coverage does not apply to the intentional acts of the insured \u2014 the coverage would be illusory.\n\u201cFortuitous\u201d means happening by chance or accident, or occurring unexpectedly or without known cause. Johnson Press of America, Inc. v. Northern Insurance Co. of New York, 339 Ill. App. 3d 864, 872 (2003). The Restatement of Contracts defines a fortuitous event as one that, as far as the parties are aware, is dependent on chance. Johnson Press, 339 Ill. App. 3d at 872, citing Restatement of Contracts \u00a7291, Comment a, at 430-31 (1932). \u201cThe determination of whether a loss is fortuitous is a legal question for the court to determine.\u201d Johnson Press, 339 Ill. App. 3d at 872.\nIllinois courts consider that defamation is now generally governed by two standards of fault and proof \u2014 negligence and actual malice. See St. Paul Insurance Co. of Illinois v. Landau, Omahana & Kopka, Ltd., 246 Ill. App. 3d 852, 858 (1993). Actual malice need not be equated with an intention to do an act from which injury may be expected. St. Paul, 246 Ill. App. 3d at 858. Significantly for the purposes of this case, the St. Paul court held that \u201c[allegations of recklessness may bring a defamation claim within the potential coverage of a policy which covers defamation but excludes knowing falsehoods.\u201d 246 Ill. App. 3d at 859.\nInitially, it should be noted that Cincinnati\u2019s reliance upon Board of Education and Viking Construction is misplaced. Contrary to Cincinnati\u2019s argument, Board of Education does not hold that all insurance is subject to the limitation that it is only applicable to fortuitous losses. The pertinent portion of that case refers to \u201call risk\u201d policies: \u201c \u2018Generally, an \u201call risk\u201d insurance policy creates a special type of coverage extending to risks not usually covered under other insurance, and recovery under an \u201call risk\u201d policy will, as a rule, be allowed for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding the loss from coverage.\u2019 [Citation.]\u201d Board of Education, 292 Ill. App. 3d at 17. The Board of Education case involves latent defect claims for asbestos-related property damage, which are not at issue here.\nFurthermore, Cincinnati improperly contends that Viking Construction stands for the proposition that coverage provided for fortuitous losses is a \u201crequirement implicit in every liability insurance policy.\u201d The pertinent portion of Viking Construction discusses three approaches in its analysis of whether faulty construction is covered under a CGL policy. The Viking Construction court lists the three approaches, the second of which concerns \u201capplication of the \u2018business risk,\u2019 \u2018ordinary and natural consequences,\u2019 or \u2018breach of contract doctrine.\u2019 \u201d Viking Construction, 358 Ill. App. 3d at 43, quoting W. Lyman, Is Defective Construction Covered Under Contractors\u2019 and Subcontractors\u2019 Commercial General Liability Insurance Policies?, 491 Practising Law Institute, Real Estate Law and Practice Course Handbook Series 505, 513 (April 2003). The Viking Construction court then states, \u201c[t]he rationale for the second approach is \u2018the requirement implicit in every liability insurance policy \u2014 specifically, that coverage is provided only for fortuitous losses.\u2019 \u201d 358 Ill. App. 3d at 43, quoting J. Yang, No Accident: The Scope of Coverage for Construction Defect Claims, 690 Practising Law Institute, Litigation and Administrative Practice Course Handbook Series 7, 25 (April 2003). In short, Viking Construction, like Board of Education, is a faulty construction case and is inapplicable here.\nCincinnati has not cited to any cases involving the fortuitous doctrine based on the allegations contained in the underlying counterclaim. Based on the holding in St. Paul, the fortuity doctrine does not apply in this case. See St. Paul, 246 Ill. App. 3d at 858-59. Nevertheless, an issue remains regarding whether Cincinnati has a duty to defend claims that the insureds intended, or expected, to cause the alleged harm in question.\n2. Whether the Duty to Defend Was Triggered\nIn this case, the counterclaims assert, inter alia, causes of action for defamation and libel against AHMA and the executives. As previously discussed, the St. Paul court held that a defamation complaint set forth allegations which were within or potentially within coverage and, as such, the insurer was required to defend the action. St. Paul, 246 Ill. App. 3d at 859. In addition to the holding in St. Paul, two notable decisions from federal courts, applying Illinois law, are pertinent here.\nIn Tews Funeral Home, Inc. v. Ohio Casualty Insurance Co., 832 F.2d 1037, 1045 (7th Cir. 1987), the defendant, Ohio Casualty Insurance Company (Ohio Casualty), issued a comprehensive general liability policy to the plaintiff, Tews Funeral Home (Tews). Within the policy period, Tews was named as a defendant in a case alleging that it conspired with other funeral homes in an attempt to maintain artificially high prices for their burial services and products. In addition, Tews was accused of conspiring to make false, misleading and defamatory statements disparaging the underlying plaintiff and violating the Uniform Deceptive Trade Practices Act.\nOhio Casualty hired an attorney to represent Tews and conducted the defense under a reservation of rights. Tews retained independent counsel, who requested an acknowledgment from Ohio Casualty that it had a duty to pay the fees and costs of independent counsel in defending the suit. Ohio Casualty refused this demand. Tews then filed a declaratory judgment action regarding its rights and Ohio\u2019s duties. Tews alleged that, regardless of whether Ohio Casualty had a duty to indemnify Tews for any damages that might arise from the underlying lawsuit, Ohio Casualty had a duty to defend Tews because the claims were potentially within the scope of coverage under Ohio Casualty\u2019s policy.\nOhio Casualty argued that its policy explicitly excluded coverage for intentional acts. The United States Court of Appeals, Seventh Circuit, held that Ohio Casualty\u2019s policy was, at best, ambiguous. The court noted that an \u201cadvertising offense\u201d was defined in the policy to include \u201cmany torts that characteristically require intent, maliciousness or willfulness, such as libel, slander, defamation or the various forms of unfair competition.\u201d Tews, 832 F.2d at 1045. The court stated that an ambiguity arose in the policy\u2019s definition of \u201coccurrence,\u201d which stated that only unintentional acts from the standpoint of the insured are covered. The Tews court pointed out that, in effect, one part of the policy insured against intentional torts or acts, while another part of the policy attempted to exclude coverage for those same acts. The Tews court resolved this ambiguity against Ohio Casualty and held that Ohio Casualty was required to defend Tews in the underlying complaint because the policy potentially covered the conduct alleged there. 832 F.2d at 1045. In addition, the Tews court found that claims for violations of the Uniform Deceptive Trade Practices Act and Illinois Consumer Fraud Act were sufficient to state a cause of action for libel, which potentially was covered under Ohio Casualty\u2019s policy. 832 F.2d at 1044.\nAnother Seventh Circuit case, Hurst-Rosche Engineers, Inc. v. Commercial Union Insurance Co., 51 F.3d 1336 (7th Cir. 1995), involved a Cincinnati insurance policy and the same argument Cincinnati makes here. The plaintiff, Hurst-Rosche Engineers, Inc. (HurstRosche), was Cincinnati\u2019s policyholder. Cincinnati had issued to HurstRosche an umbrella commercial liability policy that expressly covered defamation claims. In the underlying action, a granite company sued Hurst-Rosche for libel and tortious interference with contract. Cincinnati informed Hurst-Rosche that it would not provide a defense to the underlying suit because the duty to defend belonged to the primary carrier. After Hurst-Rosche was found liable for damages in the underlying case, it filed an action against Cincinnati seeking damages, recovery of attorneys\u2019 fees and declaratory relief for breach of contract and vexatious refusal to pay insurance benefits. The district court granted summary judgment in favor of Cincinnati.\nThe Seventh Circuit noted that the Cincinnati policy defined covered personal injury claims to include claims for, inter alia, libel, slander and defamation of character, and that these torts, by definition, require proof of intent or willfulness. The court also noted that, despite the apparent coverage for the specified intentional torts, the Cincinnati policy\u2019s definition of an \u201coccurrence\u201d limited coverage only to those claims resulting from unintentional conduct. The Seventh Circuit found that these definitions created an internal inconsistency because, \u201con the one hand Cincinnati purports to provide coverage for intentional tort claims, and on the other hand Cincinnati denies coverage for those same claims.\u201d Hurst-Rosche, 51 F.3d at 1345. The court further found that the Cincinnati policy\u2019s definitions were similar to those provisions in Tews. The court held that the ambiguity in the Cincinnati policy must be resolved in favor of the insured. Hurst-Rosche, 51 F.3d at 1346. The Cincinnati policy\u2019s \u201coccurrence\u201d language did not preclude coverage for the underlying action\u2019s claims for libel with malice and tortious interference with contract.\nOn October 7, 2008, we granted Cincinnati\u2019s motion to cite additional authority, which included a recent decision from the United States District Court, Central District of Illinois, entitled, Cincinnati Insurance Co. v. Shanahan, No. 07\u20143164 (C.D. Ill. September 26, 2008). In Shanahan, each count of the underlying defamation complaint alleged intentional conduct. The Shanahan court, in contrast to Tews and Hurst-Rosche, found no internal inconsistencies in the pertinent Cincinnati policies because (1) the injury as alleged was not caused by an \u201coccurrence,\u201d and (2) the underlying complaint only alleged intentional conduct. The Shanahan court held that the insured was not entitled to coverage for the allegations contained in the underlying complaint. In addition, Cincinnati, citing Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 761 (2005), asserts that the duty to defend is dependent upon conduct actually pled in the complaint and not a hypothetical version, and that in this case, the conduct pled only involved intentional acts.\nThe reasoning in Hurst-Rosche, rather than Shanahan and Care-mark, is on point for the instant case. Here, unlike Shanahan and Caremark, the Cincinnati policies\u2019 definition of occurrence is broader and the underlying complaint included allegations of both negligent and intentional conduct.\nThe injuries alleged in the underlying counterclaims occurred between July 2003 and April 2004, which potentially triggered both Cincinnati\u2019s 2000 to 2003 and 2003 to 2006 policies. The counterclaims\u2019 defamation and libel counts were not limited to allegations of intentional conduct, but also claimed that AHMA and Timothy Farrell \u201cexhibited a reckless disregard for the falsity of these statements.\u201d The 2000 to 2003 policy provided coverage for personal and advertising injuries including \u201c[o]ral or written publication of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services.\u201d The 2003 to 2006 personal and advertising injury liability coverage defined covered claims for injury arising out of \u201c[o]ral or written publication, in any manner, of material that slanders or libels a person or organization.\u201d The exclusions in both policies excluded coverage for \u201cknowing violation of rights of another\u201d and \u201cmaterial published with knowledge of falsity.\u201d In addition, the Cincinnati policies\u2019 definition of \u201coccurrence\u201d limited coverage only to those claims resulting from unintentional conduct.\nIn short, the Cincinnati policies purport to provide coverage for defamation and libel, but the 2003 to 2006 policy and the definition of \u201coccurrence\u201d provide coverage only for unintentional conduct. Accordingly, as in Hurst-Rosche, the Cincinnati policies contain internal inconsistencies because, \u201con the one hand Cincinnati purports to provide coverage for intentional tort claims, and on the other hand Cincinnati denies coverage for those same claims.\u201d Hurst-Rosche, 51 F.3d at 1345. Based on the well-reasoned decisions in Tews and HurstRosche, we find that the ambiguity in the Cincinnati policies must be resolved in favor of the insureds or, in this case, the assignee of the insureds, Federal. Furthermore, as in Hurst-Rosche, we find the Cincinnati policies\u2019 \u201coccurrence\u201d language did not preclude coverage for the underlying counterclaims for defamation and libel. 51 F.3d at 1346.\nThe allegations in the underlying counterclaims also are of key importance to our analysis because the duty to defend is determined by comparing the allegations in the underlying complaint to the relevant provisions of the insurance policy. Outboard Marine, 154 Ill. 2d at 107-08. Significantly, alleged deliberate misconduct does not always bring a claim within an intentional conduct exclusion:\n\u201c[I]t is important to this case that the exclusion is not of intentional torts as such (nor is defamation an intentional tort in any simple sense), but of tortious conduct in which there is an intent to injure or an expectation of injuring. And in the case of defamation, at least, the exclusion does not track the tort. *** [D]efamation is often not intended or expected to injure anyone.\u201d Cincinnati Insurance Co. v. Eastern Atlantic Insurance Co., 260 F.3d 742, 746 (7th Cir. 2001).\nIn other words, an intent to injure or expectation of injury is not an element of the tort of defamation. Eastern Atlantic, 260 F.3d at 746-47. For the purposes of this case, the underlying counterclaims alleged reckless conduct that \u201cmay bring a defamation claim within the potential coverage of a policy which covers defamation but excludes knowing falsehoods.\u201d St. Paul, 246 Ill. App. 3d at 859.\nIn sum, we find that Cincinnati\u2019s duty to defend was triggered because the underlying counterclaims\u2019 defamation claims fall within the terms of Cincinnati\u2019s policies. St. Paul, 246 Ill. App. 3d at 859. Although the threshold for pleading a duty to defend is minimal (Management Support, 129 Ill. App. 3d at 1096), Cincinnati\u2019s duty to defend, at a minimum, is clear from the face of the alleged defamation claims asserted in the counterclaims. Therefore, Cincinnati cannot justifiably refuse to defend its insureds. Dixon Distributing, 161 Ill. 2d at 439; Outboard Marine, 154 Ill. 2d at 125. Accordingly, Cincinnati has a duty to defend AHMA and the executives in the underlying counterclaims. Consequently, Cincinnati also is obligated to reimburse Federal one-half of the defense expenses incurred to date in the defense of the underlying counterclaims and to pay Federal one-half of the defense expenses going forward. Based upon this ruling, we need not address whether the duty to defend was triggered from the remainder of the counterclaims because the insurer\u2019s duty to defend arises even if only one of several theories is within the potential coverage of the policy. Hartford Fire Insurance, 321 Ill. App. 3d at 888, citing Bituminous Casualty Corp., 212 Ill. App. 3d at 564.\nD. The Doctrine of Equitable Contribution\nFinally, Cincinnati asserts that Federal has no right under the doctrine of equitable contribution to pursue Cincinnati for defense costs because the subject policies do not insure the same risk. Cincinnati asserts that its policies provide commercial general liability on an occurrence basis, while the Federal policy provides coverage under a claims-made, not-for-profit liability policy and that the terms within these policies have different meanings.\nFederal responds that it possesses a right of equitable contribution from Cincinnati for Cincinnati\u2019s share of the defense expenses incurred in defending the counterclaims. Federal asserts that the substantial overlap of the risks encompassed by the offenses defined in the respective policies asserted in the counterclaims establish that Federal and Cincinnati are co-primary insurers of AHMA and the executives.\n\u201cThe doctrine of equitable contribution permits an insurer that has paid the entire loss to be reimbursed by other insurers that are also liable for the loss.\u201d Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill. App. 3d 49, 52 (1998). The doctrine of equitable contribution \u201carises from a right which is independent from the rights of the insured, to recover from a co-obligor who shares the same liability as the party seeking contribution.\u201d Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill. App. 3d 1, 10-11 (2004). This doctrine may arise where the insurance policies at issue \u201ccover a risk on the same basis and there is an identity between the policies as to parties and insurable interests and risks.\u201d Home Indemnity Co. v. General Accident Insurance Co. of America, 213 Ill. App. 3d 319, 321 (1991). The court in Schal Bovis, Inc. v. Casualty Insurance Co., 315 Ill. App. 3d 353, 363 (2000) further elaborated upon the requirement that there be an identity of parties, insurable interests and risks:\n\u201c \u2018It is not necessary that the policies provide identical coverage in all respects in order for the two policies to be considered concurrent, and each insurer entitled to contribution from the other; as long as the particular risk actually involved in the case is covered by both policies, the coverage is duplicate, and contribution will be allowed.\u2019 \u201d 315 Ill. App. 3d at 363, quoting 15 L. Russ & P. Segella, Couch on Insurance \u00a7218:16, at 218 \u2014 11 (3d ed. 1999).\nThe holding in Schal Bovis was cited with approval by our supreme court in Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 318-22 (2004).\nEquitable contribution does not apply to primary/excess insurance issues because they cover different risk by their very definitions. Home Insurance Co., 213 Ill. 2d at 321. Accordingly, the key question here is whether the policies establish a sufficient commonality of risks to support an equitable contribution claim.\nIn this case, the record shows, and the parties do not dispute, that the policies at issue all afford primary coverage to the same insureds. Cincinnati\u2019s argument that the policies insure different risks because they are either occurrence-based or claims-made is unavailing because whether a policy is occurrence-based or claims-made refers to how the policy is triggered rather than the type of risk it insures. Here, the respective insurance policies each cover the same risks as sought in the counterclaims, inter alia, defamation, libel and trademark infringement. Cincinnati\u2019s policies insure against injury arising out of the oral or written publication of material that slanders or libels a person or organization. Federal\u2019s policy includes coverage for injuries arising out of \u201ca Wrongful Act,\u201d including, for example, defamation and trademark infringement.\nFurther, the \u201cother insurance\u201d provisions in each of the subject policies reinforce the conclusion that Cincinnati and Federal provide coverage on the same basis. Notably, Cincinnati\u2019s policies state that, \u201c[i]f all of the other insurance permits contribution by equal shares, we will follow this method also.\u201d Federal\u2019s \u201cother insurance\u201d provision states, \u201c[i]f Loss arising from a Claim made against any Insured is insured under any other valid policy, prior or current, then this policy shall cover such Loss *** only to the extent that the amount of such Loss is in excess of the amount of payment from such other insurance,\u201d whether primary or excess.\nIn sum,, the record shows that each of the respective policies share significant, fundamental commonalities of risk that support a finding that the equitable contribution doctrine is applicable in this case. Accordingly, we find that the circuit court correctly held that Cincinnati must reimburse Federal for one-half of the defense expenses it has incurred to date in defending AHMA and the executives and also pay Federal one-half of the insureds\u2019 defense expenses going forward.\nIII. CONCLUSION\nIn conclusion, we find that the circuit court of Cook County properly granted Federal\u2019s motion for addition of parties under section 2 \u2014 1008 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1008 (West 2006)). In addition, we find that the circuit court properly granted summary judgment in favor of Federal and against Cincinnati on the issue of duty to defend AHMA and the executives under its 2000 to 2003 and 2003 to 2006 policies with respect to the counterclaims in the underlying action. Furthermore, we affirm the circuit court\u2019s ruling that the \u201cother insurance\u201d provisions contained in the insurers\u2019 respective policies require Cincinnati to pay one-half of all reasonable and necessary defense expenses for the counterclaims as they are incurred by AHMA and the executives going forward. Finally, as a matter of equitable contribution, we find that Federal is entitled to recover from Cincinnati one-half of the reasonable and necessary past defense costs it expended on behalf of AHMA and the executives for the counterclaims.\nAffirmed.\nGREIMAN and THEIS, JJ., concur.\nThe record does not make clear when AHMA and the executives attempted to tender the defense of the counterclaims to Cincinnati.\nFederal claims it has paid defense expenses totaling $5,632,999.62 in its response brief, but the record does not contain a current itemization of defense expenses matching that amount. Accordingly, the record does not make clear the amount of defense costs expended at the time this appeal was filed.\nCincinnati also asserted it had no duty to defend or indemnify AHMA and the executives under an umbrella policy, which is not at issue in this case.", "type": "majority", "author": "JUSTICE QUINN" } ], "attorneys": [ "Litchfield Cavo, LLI) of Chicago (Daniel G. Litchfield, Patrick J. Sullivan, and Daniel P. Johnston, of counsel), for appellant.", "Wiley Rein, LLP, of Washington, D.C. (Dale E. Hausman and Gary P. Seligman, of counsel), and Meckler Bulger & Tilson, LLP, of Chicago (Janet R. Davis and Gary L. Gassman, of counsel), for appellee." ], "corrections": "", "head_matter": "CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. AMERICAN HARDWARE MANUFACTURERS ASSOCIATION et al., Defendants (Federal Insurance Company, Defendant-Counterclaimant and Third-Party PlaintiffAppellee).\nFirst District (3rd Division)\nNos. 1 \u2014 08\u20140085, 1 \u2014 08\u20140995 cons.\nOpinion filed November 12, 2008.\nLitchfield Cavo, LLI) of Chicago (Daniel G. Litchfield, Patrick J. Sullivan, and Daniel P. Johnston, of counsel), for appellant.\nWiley Rein, LLP, of Washington, D.C. (Dale E. Hausman and Gary P. Seligman, of counsel), and Meckler Bulger & Tilson, LLP, of Chicago (Janet R. Davis and Gary L. Gassman, of counsel), for appellee." }, "file_name": "0085-01", "first_page_order": 101, "last_page_order": 132 }