{ "id": 4290713, "name": "FARMERS AUTOMOBILE INSURANCE ASSOCIATION, Plaintiff-Appellant, v. MICHAEL C. DANNER et al., Defendants-Appellees, (David D. Winkler, Defendant)", "name_abbreviation": "Farmers Automobile Insurance v. Danner", "decision_date": "2009-09-03", "docket_number": "No. 4-08-0905", "first_page": "403", "last_page": "413", "citations": [ { "type": "official", "cite": "394 Ill. App. 3d 403" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "908 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "1101" } ], "opinion_index": 0 }, { "cite": "391 Ill. App. 3d 295", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4286698 ], "year": 2009, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0295-01" ] }, { "cite": "515 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "152", "parenthetical": "\"an admission in an unverified pleading is merely an admission against interest which may be contravened or explained\" while an admission in a verified pleading is \"binding on the pleader\"" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467568 ], "year": 1987, "pin_cites": [ { "page": "672-73", "parenthetical": "\"an admission in an unverified pleading is merely an admission against interest which may be contravened or explained\" while an admission in a verified pleading is \"binding on the pleader\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0664-01" ] }, { "cite": "536 N.E.2d 959", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "962" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498270 ], "year": 1989, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0232-01" ] }, { "cite": "491 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "18" }, { "page": "18" } ], "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 675", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495820 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0675-01" ] }, { "cite": "832 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "358 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730754 ], "year": 2005, "pin_cites": [ { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0912-01" ] }, { "cite": "458 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "630", "parenthetical": "trial court erred by entering judgment on the pleadings in favor of the plaintiff where the complaint and exhibits contradicted each other and, therefore, did not establish the plaintiffs right to contribution as a matter of law" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592746 ], "year": 1983, "pin_cites": [ { "page": "949", "parenthetical": "trial court erred by entering judgment on the pleadings in favor of the plaintiff where the complaint and exhibits contradicted each other and, therefore, did not establish the plaintiffs right to contribution as a matter of law" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0937-01" ] }, { "cite": "773 N.E.2d 707", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "713", "parenthetical": "language in the insurance policy was incorporated into the complaint by virtue of its attachment to the complaint" } ], "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 326", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034009 ], "year": 2002, "pin_cites": [ { "page": "335", "parenthetical": "language in the insurance policy was incorporated into the complaint by virtue of its attachment to the complaint" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0326-01" ] }, { "cite": "804 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "610", "parenthetical": "containing identical duty-to-defend language but finding no duty to defend suit brought against insured for \"her participatory conduct resulting in the sexual abuse of the minors\"" } ], "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833270 ], "year": 2003, "pin_cites": [ { "page": "124", "parenthetical": "containing identical duty-to-defend language but finding no duty to defend suit brought against insured for \"her participatory conduct resulting in the sexual abuse of the minors\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0113-01" ] }, { "cite": "578 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "930", "parenthetical": "\"If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent\" (emphasis in original)" } ], "opinion_index": 0 }, { "cite": "144 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592135 ], "year": 1991, "pin_cites": [ { "page": "73", "parenthetical": "\"If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent\" (emphasis in original)" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0064-01" ] }, { "cite": "830 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 955", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135450 ], "year": 2005, "pin_cites": [ { "page": "963" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0955-01" ] }, { "cite": "886 N.E.2d 1166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "pin_cites": [ { "page": "1178", "parenthetical": "considering the insured's counterclaim alleging self-defense, finding a genuine issue of material fact regarding whether the insured acted in self-defense, and concluding that the insurance company had a duty to defend" } ], "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276944 ], "year": 2008, "pin_cites": [ { "page": "1031", "parenthetical": "considering the insured's counterclaim alleging self-defense, finding a genuine issue of material fact regarding whether the insured acted in self-defense, and concluding that the insurance company had a duty to defend" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/1017-01" ] }, { "cite": "909 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "385" }, { "page": "388" } ], "opinion_index": 0 }, { "cite": "391 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4286763 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "510" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0505-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "1212" }, { "page": "1220" }, { "page": "1212-13" } ], "opinion_index": 0 }, { "cite": "740 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "517", "parenthetical": "de novo review of a decision on a motion for judgment on the pleadings" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026040 ], "year": 2000, "pin_cites": [ { "page": "571", "parenthetical": "de novo review of a decision on a motion for judgment on the pleadings" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0569-01" ] }, { "cite": "912 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "392 Ill. App. 3d 589", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4287455 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "593" }, { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0589-01" ] }, { "cite": "842 N.E.2d 1268", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "1273", "parenthetical": "noting that the appellate court denied the insurance company's request to supplement the record with the copy of a transcript that purportedly supported its claim that it did not have a duty to defend where that transcript was not considered by the trial court" }, { "page": "1275", "parenthetical": "the appellate court may affirm the trial court on any basis in the record" } ], "opinion_index": 0 }, { "cite": "363 Ill. App. 3d 493", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766434 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "499", "parenthetical": "noting that the appellate court denied the insurance company's request to supplement the record with the copy of a transcript that purportedly supported its claim that it did not have a duty to defend where that transcript was not considered by the trial court" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0493-01" ] }, { "cite": "704 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "753", "parenthetical": "\"matters not properly part of the record and not considered by the trial court will not be considered on review even though included in the record\"" } ], "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257143 ], "year": 1998, "pin_cites": [ { "page": "843-44", "parenthetical": "\"matters not properly part of the record and not considered by the trial court will not be considered on review even though included in the record\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0839-01" ] }, { "cite": "807 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3950158 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "180" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0176-01" ] }, { "cite": "411 N.E.2d 1157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1160" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 617", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5539340 ], "year": 1980, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0617-01" ] } ], "analysis": { "cardinality": 952, "char_count": 24827, "ocr_confidence": 0.754, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14426034104691046 }, "sha256": "685253690d8d90f2b12769b28443db5f422388e3f1b74d2a5ded65f2fd550b2a", "simhash": "1:0fbcb900b74d1757", "word_count": 4046 }, "last_updated": "2023-07-14T19:46:22.265343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FARMERS AUTOMOBILE INSURANCE ASSOCIATION, Plaintiff-Appellant, v. MICHAEL C. DANNER et al., Defendants-Appellees, (David D. Winkler, Defendant)." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nPlaintiff, Farmers Automobile Insurance Association (Farmers), appeals the trial court\u2019s order finding Farmers had a duty to defend defendants, Michael C. Danner and Tracy Watson, in a lawsuit filed by defendant David D. Winkler. We reverse and remand.\nI. BACKGROUND\nA. The Declaratory-Judgment Action In December 2007, Farmers filed a complaint for declaratory judgment. The complaint alleged that Danner and Watson were insureds under separate policies of insurance issued by Farmers. Danner and Watson tendered the defense of an action, Winkler v. Danner, No. 07\u2014 L \u2014 90 (Cir. Ct. Vermilion Co.) (the underlying lawsuit), to Farmers.\nIn the underlying lawsuit, Winkler alleged that on May 28, 2006, Danner and Watson committed battery against Winkler when Winkler entered Danner\u2019s property to retrieve a baseball accidently hit onto Danner\u2019s property by Winkler\u2019s son. Specifically, count I alleged that when Winkler entered Danner\u2019s property, Danner got into his pickup truck, drove it at a high rate of speed, steered his truck off the lane, and struck Winkler. Winkler alleged that \u201cDanner intended that his actions harm Winkler.\u201d Count I further alleged that Danner then exited the vehicle and struck Winkler three times with a golf club, breaking three of Winkler\u2019s ribs. Winkler attempted to subdue Danner by wrestling him to the ground.\nCount II alleged that while Winkler was struggling to subdue Dan-ner, Watson came to the scene and kicked Winkler in the back and the ribs, causing one of Winkler\u2019s ribs to puncture his lung. Watson also allegedly struck Winkler about his body with her hands. Winkler alleged that \u201cWatson intended that her actions harm Winkler.\u201d Winkler sought compensatory damages in excess of $50,000.\nIn the declaratory-judgment complaint, Farmers sought a judgment that Farmers had no duty to defend Danner or Watson in the underlying lawsuit and that the policies of insurance did not apply to the claims raised in the underlying lawsuit.\nB. The Relevant Policy Provisions Farmers attached to its declaratory-judgment complaint Danner\u2019s and Watson\u2019s respective insurance policies. The policies are identical in all material respects. No one has disputed that the policies attached to the declaratory-judgment action are the relevant policies.\nThe insurance policies contain the following language: Under \u201cSection II, Liability Coverages,\u201d the policies provide as follows:\n\u201cCoverage E \u2014 Personal Liability\nIf a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:\n1. pay up to our limit of liability for the damages for which the insured is legally liable; and\n2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false[,] or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.\u201d\nUnder the \u201cDEFINITIONS\u201d section, the policies define the term \u201coccurrence\u201d as follows:\n\u201c \u2018occurrence\u2019 means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:\na. bodily injury.\u201d\nThe policies define the term \u201cbodily injury\u201d as follows:\n\u201c \u2018bodily injury\u2019 means bodily harm, sickness[,] or disease, including required care, loss of services[,] and death that results.\u201d The record is conflicting about the applicable exclusionary provision contained in the policies. In its declaratory-judgment complaint, Farmers cites an exclusionary provision that cannot be found in the insurance policies:\n\u201cCoverage E \u2014 Personal Liability And Coverage F \u2014 Medical Payment to Others\nCoverages E and F do not apply to the following:\n1. Expected Or Intended Injury\n\u2018Bodily injury\u2019 or \u2018property damage\u2019 which is expected or intended by an \u2018insured\u2019 even if the resulting \u2018bodily injury\u2019 or \u2018property damage\u2019:\na. Is of a different kind, quality[,] or degree than initially expected or intended; or\nb. Is sustained by a different person, entity, real or personal property, than initially expected or intended.\nHowever, this Exclusion E.l does not apply to \u2018bodily injury\u2019 resulting from the use of reasonable force by an \u2018insured\u2019 to protect persons or property[.]\u201d\nIn their answer, Danner and Watson neither admitted nor denied this allegation in the complaint, asserting lack of sufficient information.\nIn contrast, the two policies in the record contain the following exclusionary provision:\n\u201c1. Coverage E \u2014 Personal Liability and Coverage F \u2014 Medical Payments to Others do not apply to bodily injury or property damage:\na. which is expected or intended by the insured[.]\u201d\nC. The Motion for Judgment on the Pleadings\nIn June 2008, Farmers filed a motion for judgment on the pleadings. In the motion, Farmers argued it had no duty to defend Danner or Watson on the underlying lawsuit because (1) the actions of Danner and Watson were not accidental in nature and did not amount to an occurrence under the policies and (2) coverage for the actions as alleged in Winkler\u2019s complaint were barred by exclusions contained in the policies. The exclusionary provision cited by Farmers in its motion for judgment on the pleadings does not match the one alleged in the complaint or the one contained in the insurance policies attached to the complaint.\nWatson and Danner did not file a response to the motion for judgment on the pleadings. However, at the October 21, 2008, hearing on the motion, counsel for Watson and Danner asserted that in the underlying lawsuit, both Watson and Danner had raised self-defense. Watson and Danner\u2019s counsel (1) argued that the exclusion for intentional acts did not apply when reasonable force was used by the insured to protect persons and property and \u201cthat defense would kick the exclusion in *** that we have pled in the answer [in the underlying lawsuit]\u201d and (2) asked the trial court to reserve ruling on counts III and IV\u00a1 which were negligence counts recently added to the complaint in the underlying lawsuit.\nCounsel for Farmers admitted receipt of the amended complaint the previous day but asked the trial court to consider only the pleadings that were a matter of record as of the date of the hearing. The court refused to reserve ruling on something not pleaded in the declaratory-judgment action and apparently did not consider the amended complaint in the underlying lawsuit.\nAfter hearing argument, the trial court found as follows:\n\u201cIt does appear to me the allegations of the *** complaint *** present intentional acts. [W]hich I realize are not covered. However, under your *** argument[,] the [c]ourt is bound to refer to the eight (8) corners of not only the pleadings but the policy itself. *** I\u2019m troubled, troubled by the provision that I\u2019ve earlier cited to you under the Coverage E personal liability [(\u2018provide a defense *** even if the suit is groundless, false[,] or fraudulent\u2019)]. *** I think there is a duty to provide [a] defense and let, you know, it may[ ]be \u2014 the outcome may[ ]be intentional but I\u2019m not sure of that and I don\u2019t think anybody can be. And on that basis, I\u2019m going to deny the motion for judgment on the pleadings.\nAnd again, the gist of my ruling is that language that the company will provide a defense *** even where this \u2014 even if it\u2019s determined the suit is groundless, false, or fraudulent.\u201d\nIn November 2008, the trial court entered its written order. The order provided as follows:\n\u201c1. That the underlying [c]omplaint filed as Cause No. 07[ \u2014 ] L[ \u2014 ]90 by David D. Winkler against Michael C. Danner and Tracy Watson set forth allegations that are intentional in nature and, as such, are otherwise excluded from coverage under Farmers Homeowner\u2019s policies of insurance.\n2. That, notwithstanding the above finding by this [c]ourt, the relevant provision of the Farmers Homeowners policies of insurance issued to Michael C. Danner and Tracy Watson, specifically, Coverage E \u2014 Personal Liability, states that Farmers owes a duty to defend its insureds, \u2018even if the suit is groundless, false[,] or fraudulent.\u2019 \u201d\nThe order further provided that the motion for judgment on the pleadings was denied and that Farmers had a duty to defend. The court entered judgment in favor of Danner and Watson, against Farmers, and terminated the cause.\nThis appeal followed.\nII. ANALYSIS\nBefore turning to the merits of the appeal, this court must first address Danner and Watson\u2019s motion to supplement the record on appeal.\nA. Motion To Supplement the Record Is Denied\nDanner and Watson filed a motion to supplement the record on appeal with the following documents from the underlying lawsuit: (1) the amended complaint containing the two counts of negligence; (2) the stipulation agreeing to the filing of the amended complaint; (3) the October 21, 2008, order allowing the filing of the amended complaint; and (4) the docket sheet. Danner and Watson concede the trial court did not consider these documents but argue that this court can consider them because (1) this court may affirm on any basis in the record and (2) Farmers was aware of the amendment at the time of the hearing in the instant action. Danner and Watson cite Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 621, 411 N.E.2d 1157, 1160 (1980), for the proposition that the insurer has a duty to defend when the complaint alleges facts that bring the claim within or potentially within policy coverage \u201cunless the insurer has knowledge of true although unpleaded facts which, when taken together with the complaint\u2019s allegations, indicate that the claim is within or potentially within the policy coverage.\u201d\nSupreme Court Rule 329 (210 Ill. 2d R. 329) \u201cprovides that a party may supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court.\u201d Jones v. Ford Motor Co., 347 Ill. App. 3d 176, 180, 807 N.E.2d 520, 523 (2004). However, the record on appeal can be \u201csupplemented only with evidence actually before the trial court.\u201d Jones, 347 Ill. App. 3d at 180, 807 N.E.2d at 523; see also Avery v. Sabbia, 301 Ill. App. 3d 839, 843-44, 704 N.E.2d 750, 753 (1998) (\u201cmatters not properly part of the record and not considered by the trial court will not be considered on review even though included in the record\u201d). Here, the trial court did not admit or consider the documents Danner and Watson now seek to include in the record. Therefore, the motion to supplement the record is denied. See, e.g., Allstate Insurance Co. v. Kovar, 363 Ill. App. 3d 493, 499, 842 N.E.2d 1268, 1273 (2006) (noting that the appellate court denied the insurance company\u2019s request to supplement the record with the copy of a transcript that purportedly supported its claim that it did not have a duty to defend where that transcript was not considered by the trial court).\nB. Cause Must Be Remanded for Further Proceedings\nFarmers argues on appeal that the trial court erred by finding a duty to defend because (1) the complaint in the underlying lawsuit does not allege a covered occurrence and the court misconstrued the language concerning \u201cgroundless, false[,] or fraudulent\u201d suits as a basis for finding a duty to defend and (2) the allegations in the complaint in the underlying lawsuit are excluded by the intentional-acts exclusion.\nAs is relevant to the issues addressed in this appeal, Danner and Watson argue that (1) the trial court did not err by finding, as a matter of law, that a duty to defend existed on the grounds stated by the court and (2) this court can affirm on any basis and should affirm on the basis that the claims potentially fall within coverage under the self-defense provision contained in the exclusionary provision cited by Farmers in its declaratory-judgment complaint. Danner and Watson also ask this court to find that Farmers has a conflict of interest in directing Danner\u2019s and Watson\u2019s defense.\n1. Standard of Review Is De Novo\nIn this case, the trial court granted judgment in favor of Danner and Watson on Farmer\u2019s declaratory-judgment complaint. Our review is de novo. When the sole basis for the court\u2019s declaratory judgment involves legal determinations and not factual determinations, our review of the decision is de novo. See Pekin Insurance Co. v. Hallmark Homes, L.L.C., 392 Ill. App. 3d 589, 593, 912 N.E.2d 250, 254 (2009). \u201cMoreover, the interpretation of a contract such as an insurance policy is a purely legal matter subject to de novo review.\u201d Hallmark Homes, 392 Ill. App. 3d at 593, 912 N.E.2d at 254; see also Board of Trustees of the University of Illinois v. City of Chicago, 317 Ill. App. 3d 569, 571, 740 N.E.2d 515, 517 (2000) (de novo review of a decision on a motion for judgment on the pleadings).\n2. The Trial Court Erred by Entering Judgment in Favor of Danner and Watson\nAt issue here is whether the trial court correctly determined that Farmers had a duty to defend Danner and Watson in the underlying lawsuit.\nAn insurer\u2019s duty to defend arises if the \u201cfacts alleged in the underlying complaint fall within, or potentially within, the policy\u2019s coverage.\u201d Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 III. 2d 90, 108, 607 N.E.2d 1204, 1212 (1992). The duty to defend is much broader than the duty to indemnify. Outboard Marine Corp., 154 Ill. 2d at 125, 607 N.E.2d at 1220.\n\u201c[T]o determine whether the insurer has a duty to defend the insured, the court must initially look to the allegations in the underlying complaint and compare those allegations to the relevant provisions of the insurance policy.\u201d Pekin Insurance Co. v. Wilson, 391 Ill. App. 3d 505, 510, 909 N.E.2d 379, 385 (2009). However, a trial court \u201cmay look beyond the allegations of the complaint in the underlying lawsuit in order to determine an insurance company\u2019s duty to defend its insured\u201d so long as the \u201c \u2018court does not determine an issue critical to the underlying action.\u2019 \u201d Wilson, 391 Ill. App. 3d at 513, 909 N.E.2d at 388, quoting American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017, 1031, 886 N.E.2d 1166, 1178 (2008) (considering the insured\u2019s counterclaim alleging self-defense, finding a genuine issue of material fact regarding whether the insured acted in self-defense, and concluding that the insurance company had a duty to defend). \u201cAs the threshold for pleading a duty to defend is low, any doubt with regard to such duty is to be resolved in favor of the insured.\u201d United Services Automobile Ass\u2019n v. Dare, 357 Ill. App. 3d 955, 963, 830 N.E.2d 670, 678 (2005).\nIn Outboard Marine Corp., 154 Ill. 2d at 108-09, 607 N.E.2d at 1212-13, the Illinois Supreme Court set forth the proper means of interpreting an insurance contract:\n\u201cIn construing an insurance policy, the court must ascertain the intent of the parties to the contract. [Citations.] To ascertain the meaning of the policy\u2019s words and the intent of the parties, the court must construe the policy as a whole [citations], with due regard to the risk undertaken, the subject matter that insured[,] and the purposes of the entire contract [citation]. If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. [Citations.] However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous [citation] and will be construed in favor of the insured and against the insurer who drafted the policy. [Citations.]\u201d (Emphasis omitted.)\na. Trial Court Erred by Finding a Duty to Defend Based on the Coverage E Provision\nThe policies attached to Farmers\u2019 declaratory-judgment complaint provided that Farmers had a duty to provide a defense to its insureds under the following circumstances:\n\u201cCoverage E- \u2014 Personal Liability\nIf a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:\n2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false[,] or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.\u201d\nThe trial court found that the duty-to-defend language in the insurance policies required Farmers to defend Danner and Watson in the underlying lawsuit. The court interpreted the language \u201cprovide a defense at our expense by counsel of our choice, even if the suit is groundless, false[,] or fraudulent\u201d to mean that Farmers had a duty to defend any claims, regardless of whether it was a suit brought against an insured for bodily injury caused by an occurrence to which the coverage applied.\nHere, construing the policy as a whole, the duty-to-defend provision clearly provides that Farmers will defend an otherwise covered claim or suit even if the allegations are groundless, false, or fraudulent. See, e.g., United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73, 578 N.E.2d 926, 930 (1991) (\u201cIf the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent\u201d (emphasis in original)); Westfield National Insurance Co. v. Continental Community Bank & Trust Co., 346 Ill. App. 3d 113, 124, 804 N.E.2d 601, 610 (2003) (containing identical duty-to-defend language but finding no duty to defend suit brought against insured for \u201cher participatory conduct resulting in the sexual abuse of the minors\u201d). The language in the policies does not impose a duty to defend a claim or suit against an insured for damages because of bodily injury that were not caused by an \u201coccurrence to which this coverage applies.\u201d Therefore, the trial court erred by reading the duty-to-defend language to impose a duty to defend any groundless, false, or fraudulent suit regardless of whether the bodily injury was caused by an \u201coccurrence to which this coverage applies.\u201d\nb. Remand Is Required for Consideration of the Amended Complaint and Actual Exclusionary Provision\nOn appeal, Farmers argues that the intentional-acts exclusion provides that Farmers has no duty to defend against allegations of bodily injury \u201cwhich is expected or intended by the insured.\u201d Danner and Watson rely on the exclusionary provision cited by Farmers in its declaratory-judgment complaint, which provides as follows:\n\u201cCoverage E \u2014 Personal Liability And Coverage F \u2014 Medical Payment to Others\nCoverages E and F do not apply to the following:\n1. Expected Or Intended Injury\n\u2018Bodily injury\u2019 or \u2018property damage\u2019 which is expected or intended by an \u2018insured\u2019 even if the resulting \u2018bodily injury\u2019 or \u2018property damage\u2019:\na. Is of a different kind, quality[,] or degree than initially expected or intended; or\nb. Is sustained by a different person, entity, real or personal property, than initially expected or intended.\nHowever, this Exclusion E.l does not apply to \u2018bodily injury\u2019 resulting from the use of reasonable force by an \u2018insured\u2019 to protect persons or property.\u201d (Emphasis added.) (Hereinafter, the self-defense provision.)\nDanner and Watson argue that this court should affirm the trial court on the basis that they raised self-defense in the underlying lawsuit and, therefore, the claims in the underlying lawsuit fall within, or potentially within, coverage. See Kovar, 363 Ill. App. 3d at 500, 842 N.E.2d at 1275 (the appellate court may affirm the trial court on any basis in the record).\nAs noted, the policies attached to the declaratory-judgment complaint do not contain the self-defense provision cited in the declaratory-judgment complaint. Generally, when the \u201callegations in a pleading conflict with the facts disclosed in an exhibit, the exhibit controls.\u201d Employers Reinsurance Corp. v. E. Miller Insurance Agency, Inc., 332 Ill. App. 3d 326, 335, 773 N.E.2d 707, 713 (2002) (language in the insurance policy was incorporated into the complaint by virtue of its attachment to the complaint); Laue v. Leifheit, 120 Ill. App. 3d 937, 949, 458 N.E.2d 622, 630 (1983) (trial court erred by entering judgment on the pleadings in favor of the plaintiff where the complaint and exhibits contradicted each other and, therefore, did not establish the plaintiffs right to contribution as a matter of law). However, that rule \u2014 that the exhibits trump the allegations \u2014 is most commonly seen in the context of a motion to dismiss. That is, a motion to dismiss does not admit allegations in the complaint that are in conflict with the facts disclosed in the exhibits. R&B Kapital Development, LLC v. North Shore Community Bank & Trust Co., 358 Ill. App. 3d 912, 922, 832 N.E.2d 246, 255 (2005). Those are not the circumstances here.\nEven if the exhibits do not trump the allegation that such a provision existed in the policies, the allegation may constitute a judicial admission. \u201cAllegations in a pleading are formal, conclusive judicial admissions withdrawing a fact from issue, provided the pleading has not been amended, abandoned!,] or withdrawn.\u201d DiBenedetto v. County of Du Page, 141 Ill. App. 3d 675, 681, 491 N.E.2d 13, 18 (1986). \u201c[I]f the pleading is verified, the admission is binding even after amendment\u201d (DiBenedetto, 141 Ill. App. 3d at 681, 491 N.E.2d at 18) unless the admission was the product of mistake or inadvertence (Rynn v. Owens, 181 Ill. App. 3d 232, 235, 536 N.E.2d 959, 962 (1989)). But see also Chavez v. Watts, 161 Ill. App. 3d 664, 672-73, 515 N.E.2d 146, 152 (1987) (\u201can admission in an unverified pleading is merely an admission against interest which may be contravened or explained\u201d while an admission in a verified pleading is \u201cbinding on the pleader\u201d).\nIn this case, Farmers has not amended the unverified complaint. At oral argument, counsel for Farmers asserted that the provision was either contained in an endorsement or the inclusion of the provision in the declaratory-judgment complaint was a mistake. We leave to the trial court to determine whether the allegation regarding the self-defense provision should be considered a judicial admission.\nThis court also notes that at the hearing on the motion for judgment on the pleadings, counsel for Farmers and the trial court clearly had knowledge of the amended complaint from the underlying lawsuit, yet the court chose not to address that issue. The trial judge stated:\n\u201cWell, I don\u2019t have [counts] 3 and 4. They\u2019re not referred to in these particular pleadings in the MR case.\n\u2756 \u2756 ^\nWell, I\u2019m not going to reserve ruling on something that\u2019s not pled. Uh, it\u2019s not part of the \u2014 ***.\u201d\nCounsel for Farmers, while stating that the counts had not been added or filed, acknowledged receiving a \u201ccopy of this\u201d the day before the hearing. The motion for leave to file the amended complaint in the underlying lawsuit was filed the day before the hearing in this case, the motion was granted the day of the hearing (October 21, 2008), and the amended complaint was actually filed November 24, 2008. Consequently, in the interest of judicial economy, this court remands to the trial court to reconsider the motion for judgment on the pleadings in light of the current state of the pleadings in the underlying lawsuit. Upon remand, the parties may file the appropriate motions and attach the appropriate documents from which the trial court can determine whether the claims potentially fall within coverage and whether Farmers has a duty to defend or indemnify Danner and Watson in the underlying lawsuit. See, e.g., Country Mutual Insurance Co. v. Olsak, 391 Ill. App. 3d 295, 305, 908 N.E.2d 1091, 1101 (2009) (\u201ceven in cases of criminal conduct, a potential for coverage has been found\u201d where the interests of the parties were diametrically opposed and presented the insurance company with an ethical conflict because it could not choose a defense strategy in the underlying litigation without harming one of the parties).\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for further proceedings.\nReversed and remanded.\nTURNER and POPE, JJ., concur.", "type": "majority", "author": "JUSTICE MYERSCOUGH" } ], "attorneys": [ "Robert Marc Chemers (argued), Darryl L. Awick, and Scott L. Howie, all of Pretzel & Stouffer Chartered, of Chicago, for appellant.", "Steven A. Amjad (argued), of Meyer Capel, P.C., of Champaign, for appellees." ], "corrections": "", "head_matter": "FARMERS AUTOMOBILE INSURANCE ASSOCIATION, Plaintiff-Appellant, v. MICHAEL C. DANNER et al., Defendants-Appellees, (David D. Winkler, Defendant).\nFourth District\nNo. 4\u201408\u20140905\nOpinion filed September 3, 2009.\nRobert Marc Chemers (argued), Darryl L. Awick, and Scott L. Howie, all of Pretzel & Stouffer Chartered, of Chicago, for appellant.\nSteven A. Amjad (argued), of Meyer Capel, P.C., of Champaign, for appellees." }, "file_name": "0403-01", "first_page_order": 421, "last_page_order": 431 }