Pekin Insurance Co. v. McKeown Classic Homes, Inc.

Digitally signed by
Reporter of
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Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.02.01
14:09:15 -06'00'

Pekin Insurance Co. v. McKeown Classic Homes, Inc.,
2020 IL App (2d) 190631

Appellate Court PEKIN INSURANCE COMPANY, Plaintiff-Appellee, v.
Caption McKEOWN CLASSIC HOMES, INC.; JEROME McKEOWN;
JANET H. HULA, MICHELLE HULA-MILLER; and ERIC B.
MILLER, Defendants (McKeown Classic Homes, Inc., and Jerome
McKeown, Defendants-Appellants).

District & No. Second District
No. 2-19-0631

Rule 23 order filed June 16, 2020
Motion to
publish allowed July 29, 2020
Opinion filed July 29, 2020

Decision Under Appeal from the Circuit Court of Du Page County, No. 18-MR-1322;
Review the Hon. Paul M. Fullerton, Judge, presiding.

Judgment Affirmed.

Counsel on Anthony G. Barone, Jason W. Jochum, and Zachary McGourty, of
Appeal Barone Law Group, P.C., of Oakbrook Terrace, for appellants.

Robert Marc Chemers, Richard M. Burgland, and Paula K. Villela, of
Pretzel & Stouffer, Chtrd., of Chicago, for appellee.
 Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Presiding Justice Birkett and Justice Schostok concurred in the
judgment and opinion.

OPINION

¶1 Defendants, McKeown Classic Homes, Inc., and Jerome McKeown (collectively,
McKeown), appeal the trial court’s entry of summary judgment in favor of plaintiff, Pekin
Insurance Company (Pekin), finding that Pekin had no duty to defend McKeown in the
underlying action. Additionally, McKeown appeals the trial court’s denial of its motion to
reconsider the grant of summary judgment to Pekin. For the reasons that follow, we affirm the
judgment of the trial court.

¶2 I. BACKGROUND
¶3 On April 9, 2018, Janet Hula, Michelle Hula-Miller, and Eric Miller (collectively,
claimants) filed the underlying action, a two-count complaint against McKeown alleging
breach of contract and conversion stemming from McKeown’s work on claimants’ property
pursuant to a construction agreement. 1 Relevant here, count II (conversion) alleged that, in
July 2013, McKeown, “without authority and knowledge of [claimants], took hundreds of
planks of knotty pine wood, a Dutch door, a hand sink, four windows and [a] glass door
knowingly belonging to the [claimants] without [claimants’] consent.” Count II alleged that
claimants demanded McKeown return the above items, but it refused to do so. Count II stated
that, as a proximate result of McKeown’s conversion, claimants suffered $25,000 in damages.
Claimants further alleged that McKeown’s acts were “willful, wanton, malicious, and
oppressive and were undertaken with the intent to defraud” and that they “justify the awarding
of punitive damages.”
¶4 On September 17, 2018, after refusing to accept McKeown’s tendered defense to
claimants’ complaint, Pekin filed a complaint for a declaratory judgment that it had no duty to
defend McKeown in the underlying action. Pekin stated that the commercial general liability
insurance policy (the policy) it issued to McKeown contained certain exclusions applicable to
the claimants’ conversion claim. Pekin attached to the complaint a copy of the policy issued to
McKeown.
¶5 Section I of the policy provides, in relevant part, as follows:
“1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as
damages because of ‘bodily injury’ or ‘property damage’ to which this insurance
applies. We will have the right and duty to defend the insured against any ‘suit’ seeking
those damages. However, we will have no duty to defend the insured against any ‘suit’
1
Count I of the underlying complaint alleged breach of contract and listed 191 instances of
McKeown’s improper construction, poor workmanship, or damage to various parts of the claimants’
property. McKeown does not contend in this appeal that Pekin had a duty to defend the allegations
contained within count I.

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 seeking damages for ‘bodily injury’ or ‘property damage’ to which this insurance does
not apply. We may, at our discretion, investigate an ‘occurrence’ and settle any claim
or ‘suit’ that may result.
***
b. This insurance applies to ‘bodily injury’ and ‘property damage’ only if:
(1) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence that
takes place in the coverage territory[.]’ ”
The policy defined “occurrence” as “an accident, including continuous or repeated exposure
to substantially the same general or harmful conditions.” The policy defined “property
damage” as
“a. Physical injury to tangible property, including all resulting loss of use of that
property. All such loss of use shall be deemed to occur at the time of the ‘occurrence’
that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of
use shall be deemed to occur at the time of the ‘occurrence’ that caused it.”
¶6 On October 24, 2018, McKeown filed an answer to Pekin’s complaint for declaratory
judgment, contending that the damages sought and the allegations contained in claimants’
conversion claim were covered by the policy. On October 26, 2018, McKeown filed a
counterclaim for declaratory judgment in which it contended that the “materials at issue were
mistakenly removed by a subcontractor involved in the demolition of the prior home located
at the Subject Property.” McKeown’s counterclaim stated that the “alleged wrongful removal
by subcontractor *** of these materials amounts to ‘property damage’ as claimants have
alleged a resulting ‘loss of use of that property’ as defined by the policy.” McKeown further
stated that “this loss is a clearly covered ‘occurrence’ as defined by the policy as the
subcontractor’s mistake in removing property allegedly belonging to [claimants] was an
‘accident.’ ” Thus, McKeown alleged, Pekin had a duty to defend it in the underlying action.
¶7 On January 4, 2019, Pekin filed a motion for summary judgment stating that it had no duty
to defend McKeown against claimants’ underlying complaint for conversion. Pekin argued in
its motion that the conversion claim did not allege an “occurrence” as defined in the policy
but, rather, an intentional act to deprive claimants of their own property.
¶8 McKeown filed a cross-motion for summary judgment on February 19, 2019, arguing that
claimants’ conversion claim did not clearly delineate whether McKeown negligently or
intentionally converted their property. Thus, according to McKeown’s motion, an issue of fact
existed as to its potential liability for conversion, and Pekin must defend it under the terms of
the policy. Further, McKeown argued that the conversion claim alleged $25,000 in damages
that could be considered “property damage” as defined in the policy, as claimants alleged a
resulting “loss of use of that property.”
¶9 To support its position that the allegedly converted items were taken by “mistake” and,
thus, as the result of an “occurrence” under the terms of the policy, triggering Pekin’s duty to
defend, McKeown attached claimants’ following answer to an underlying interrogatory:
“Identify each and every communication with McKeown related to McKeown’s
alleged conversion of the ‘hundreds of planks of knotty pine wood, a Dutch door, a
hand sink, four windows and a glass door’ as you allege in Count II of the Complaint.
For each communication identified, state whether the communication was oral or

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 written; the date of the communication; the name and affiliation of each individual
involved in the communication; and the content of the communication.
Answer: Regarding Count II of the complaint. Before the existing house on the lot
was demoed[,] Eric Miller spent a couple of weekends removing planks of knotty pine
wood, a Dutch door, a hand sink, four windows and glass door knobs from the house.
We talked to Jerry McKeown about this because the wood was in good condition and
we thought that it would be good to use these items in a club house ***. At Jerry
McKeown’s direction, Eric Miller loaded the items onto an existing playset in the rear
of the property and covered the items with a blue tarp. When we were on vacation,
[McKeown] had the property demoed. When we viewed the pictures sent by Michele
Hula’s brother, we noticed the playset was not in any of the pictures. We immediately
contacted [McKeown] to find out what happened *** with the items we stored in the
playset. [McKeown] informed us that the demo company took those items away along
with the playset. He then told us that ‘I will build a better clubhouse than I demo[ed]’
to assure us that he would take care of this miscommunication that occurred on his
watch. At the end of construction, we revisited the clubhouse issue and [McKeown’s]
stance changed drastically. He started to back pedal on the promise he made to us and
refused to build the clubhouse. We ended up having the landscaper *** erect a
clubhouse/shed structure in our backyard at our own expense.”
¶ 10 On March 22, 2019, claimants, who had been joined as defendants in Pekin’s declaratory
judgment action, stipulated and agreed to be bound by any judgment. The trial court granted
Pekin’s motion to voluntarily dismiss claimants pursuant to their stipulation.
¶ 11 On March 26, 2019, the trial court heard arguments from the remaining litigants on their
cross-motions for summary judgment. The trial court found that, in their conversion claim,
claimants
“allege intentional conduct, and they allege that once that conduct was brought to
McKeown’s attention, [he] refused to return [the items]. And there is nothing in here
that tells me that there is negligence or an accident. What I have got to go on are the
allegations of the complaint. *** There is a refusal to return [items] once they are
known. And I go back to the duty to defend in this case is what you are asking the Court
to rule on. It rests upon the allegations of the complaint.”
The trial court granted Pekin’s motion for summary judgment and found that there was no duty
to defend McKeown under the terms of the policy.
¶ 12 On April 16, 2019, McKeown filed a motion to reconsider the trial court’s March 26, 2019,
ruling in favor of Pekin. McKeown argued in its motion that the trial court misapplied the law
in granting Pekin’s motion because the underlying complaint’s allegations could leave it liable
for conversion, potentially covered by the policy. The trial court held a hearing on McKeown’s
motion to reconsider on June 17, 2019, whereupon it was denied. McKeown timely filed this
appeal.

¶ 13 II. ANALYSIS
¶ 14 In this appeal, McKeown contends that the trial court erred in (1) granting Pekin’s motion
for summary judgment and finding no duty to defend under the terms of the policy and
(2) denying its motion to reconsider. We will address each of McKeown’s contentions in turn.

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¶ 15 The trial court’s grant of summary judgment, based on its finding that Pekin owed no duty
to defend in the underlying action, presents a legal question, which we review de novo. Pekin
Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010) (legal issues related to insurance contracts
require de novo review); State Farm Mutual Automobile Insurance Co. v. Murphy, 2019 IL
App (2d) 180154, ¶ 21 (we review the trial court’s grant of summary judgment de novo).
¶ 16 “Summary judgment is proper where, when viewed in the light most favorable to the
nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.” Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004);
see 735 ILCS 5/2-1005(c) (West 2016). A genuine issue of material fact exists when the
material facts are disputed or when the material facts are undisputed but reasonable persons
might draw different inferences from those undisputed facts. Carney v. Union Pacific R.R. Co.,
2016 IL 118984, ¶ 25. “Although summary judgment can aid in the expeditious disposition of
a lawsuit, it remains a drastic means of disposing of litigation and, therefore, should be allowed
only where the right of the moving party is clear and free from doubt.” Williams v. Manchester,
228 Ill. 2d 404, 417 (2008).
¶ 17 In a declaratory judgment action where the issue is whether the insurer has a duty to defend,
a court looks first to the allegations in the underlying complaint and compares those allegations
to the relevant provision of the insurance policy. Wilson, 237 Ill. 2d at 455; Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 107-08 (1992). An insurer’s duty to
defend arises when (1) the complaint is brought against an insured and (2) the facts as alleged
in the complaint fall, or potentially fall, within the policy’s coverage. Wilson, 237 Ill. 2d at
455.
¶ 18 When construing an insurance policy, a court’s primary objective is to ascertain and give
effect to the intentions of the parties as expressed in their insurance contract. Id. If the words
of the policy are clear and unambiguous, the court must afford them their plain and ordinary
meaning. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001);
Outboard Marine, 154 Ill. 2d at 108. Where ambiguity exists, the policy will be construed
strictly against the insurer, who drafted the policy, and liberally in favor of coverage for the
insured. Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 417
(2006).
¶ 19 If the underlying complaint alleges facts within or potentially within policy coverage, the
insurer is obligated to defend its insured even if the allegations are groundless, false, or
fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73
(1991). “It is the allegations of the complaint, not the findings of the underlying litigation, that
are dispositive of the duty to defend.” Northbrook Property & Casualty Insurance Co. v.
Transportation Joint Agreement, 309 Ill. App. 3d 261, 264 (1999). Courts must determine
whether the alleged conduct arguably falls within at least one of the categories of wrongdoing
listed in the policy. Lexmark International, Inc. v. Transportation Insurance Co., 327 Ill. App.
3d 128, 135-36 (2001) (citing La Grange Memorial Hospital v. St. Paul Insurance Co., 317
Ill. App. 3d 863, 869 (2000)).
¶ 20 In support of its first contention, McKeown argues that the trial court incorrectly made its
finding in favor of Pekin based solely on the allegations in the underlying complaint and
without any consideration of the facts plead by McKeown in its counterclaim for declaratory
judgment. It directs this court to our supreme court’s holding in Wilson.

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¶ 21 In Wilson, the plaintiff in the underlying action filed a lawsuit against Wilson alleging
causes of action for assault, battery, and intentional infliction of emotional distress stemming
from two separate incidents. Wilson, 237 Ill. 2d at 449. Wilson tendered his defense to Pekin,
with whom he had a commercial general liability policy. Id. Pekin and another of Wilson’s
insurers filed a complaint for declaratory judgment, each seeking a finding that it owed no duty
to defend Wilson. Id. Wilson’s policy with Pekin contained an exclusion from coverage for
intentional conduct, but the exclusion included an exception for self-defense.
¶ 22 The plaintiff in the underlying suit subsequently filed an amended complaint that added a
count of negligence against Wilson. Id. at 449-50. Pekin filed an amended complaint for
declaratory judgment, again seeking a finding that it owed no duty to defend Wilson in the
underlying suit. Id. at 451. Wilson filed an answer to the amended complaint in the underlying
suit as well as a counterclaim against the underlying plaintiff in which he claimed self-defense
and alleged that the underlying plaintiff was the aggressor in one of the subject altercations.
Id.
¶ 23 Wilson then filed an answer to Pekin’s amended complaint for declaratory judgment,
denying that Pekin had no duty to defend him in the underlying lawsuit. Id. at 452. Pekin filed
a motion for judgment on the pleadings, pursuant to section 2-615(e) of the Code of Civil
Procedure (735 ILCS 5/2-615(e) (West 2006)), arguing that the underlying amended
complaint’s added negligence count did not bring the underlying suit within the policy’s
coverage because that count merely articulated in negligence terms the allegations of
intentional conduct by Wilson. Wilson, 237 Ill. 2d at 452. Wilson filed a response to Pekin’s
motion, arguing that Pekin was aware that he denied any intentional harm to the underlying
plaintiff and that the allegations of negligence were sufficient to raise a duty to defend. Id. at
453. The trial court granted Pekin’s motion and declared that Pekin had no duty to defend
Wilson in the underlying suit. Id. The appellate court found that the facts alleged in the
underlying complaint were inconsistent with allegations of negligence, even though labeled as
such. Id. at 454. However, the appellate court reversed the trial court’s order, holding that, in
addition to relying upon the allegations in the underlying complaint to ascertain Pekin’s duty
to defend, the trial court could consider whether the allegations that Wilson raised in his
counterclaim against the underlying plaintiff triggered the self-defense exception in the policy.
Id.
¶ 24 In affirming the appellate court’s holding, our supreme court concluded that a trial court
may look beyond the underlying complaint in order to determine an insurer’s duty to defend.
Id. at 459. Wilson’s counterclaim in the underlying suit alleged self-defense and contained
detailed allegations of the underlying plaintiff’s aggression. Id. at 463. Additionally, Wilson’s
memorandum response to Pekin’s motion for judgment on the pleadings in the declaratory
judgment action revealed that he had “consistently denied that he improperly harmed or
intended to harm” the underlying plaintiff. Id. at 464. Our supreme court held that “it was
incumbent upon the trial court, for purposes of resolving Pekin’s motion for judgment on the
pleadings, to consider as admitted all well-pleaded facts set forth in the pleadings of the
nonmoving party, and the fair inferences drawn therefrom.” Id. (citing Employers Insurance
of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999)). Our supreme court held
that, unless Wilson was allowed to plead facts alleging that the underlying plaintiff’s injury
occurred through Wilson’s use of self-defense, the self-defense exclusion could never be
triggered and the coverage would be illusory. Id. at 465.

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¶ 25 Our supreme court’s holding in Wilson does not support McKeown’s argument in the
present case. McKeown’s assertion that the trial court erred in ignoring “facts pled by the
nonmoving party” finds no help in Wilson, wherein the pleadings considered appeared in the
underlying case, not in the subsequent declaratory judgment action. The explanation that the
allegedly converted items were “mistakenly removed by a subcontractor” does not appear in
the record until McKeown’s counterclaim for declaratory judgment. McKeown’s position is
not supported by Wilson.
¶ 26 Nor does this court’s jurisprudence on the “true-but-unpleaded-facts doctrine” aid
McKeown. In Shriver Insurance Agency v. Utica Mutual Insurance Co., 323 Ill. App. 3d 243,
246 (2001), Shriver Insurance Agency (Shriver) filed a declaratory judgment action against its
insurer, Utica Mutual Insurance Company (Utica), after Utica declined to defend Shriver in an
underlying lawsuit. Utica moved to dismiss Shriver’s complaint, in light of a policy exclusion.
Id. The parties filed opposing motions for summary judgment. Id. Shriver attached an affidavit
from its president as well as his letter sent to Utica informing it of the underlying action and
the facts leading to the underlying lawsuit. Id. The trial court granted Shriver’s motion for
summary judgment and found that Utica had a duty to defend Shriver because the letter
constituted true but unpleaded facts known to Utica. Id. at 246-47.
¶ 27 On appeal, this court discussed the true-but-unpleaded-facts doctrine:
“An insurer must defend only if the complaint alleges facts within or potentially within
the coverage of the policy, unless the insurer possesses knowledge of true but unpleaded
facts that, when taken together with the allegations in the complaint, indicate that the
claim is within or potentially within the policy coverage.” (Emphasis added.) Id. at 247.
We determined that the complaint in the underlying action alleged the type of risk that Utica
intended to exclude from coverage. Id. at 249. Additionally, we stated that we did not believe
that the true-but-unpleaded-facts doctrine “was meant to be applied to situations such as existed
in this case, i.e., where the only extraneous facts the insurer possessed were supplied by the
insured. In such a situation the insurer has no way of knowing whether the facts are true unless
it conducts an independent investigation.” Id. at 251. “Typically, in cases where the ‘true but
unpleaded facts’ doctrine has been applied to show that an insurer had the duty to defend, the
extraneous facts possessed by the insurer and known to be true were facts the insurer
discovered during its own investigation of the underlying action.” Id.
¶ 28 In Pekin Insurance Co. v. Precision Dose, Inc., 2012 IL App (2d) 110195, this court
elaborated further on the true-but-unpleaded-facts doctrine articulated in Shriver. There we
said,
“Shriver teaches that unpleaded facts that the insured gives the insurer should be
viewed with suspicion when determining the duty to defend, because the insurer has no
way of knowing whether the facts are true without conducting its own investigation or
otherwise verifying the information independently.” Id. ¶ 44.
In Precision Dose, the insured defendants were sued for breach of fiduciary duty by the
underlying plaintiffs, minority shareholders of Precision Dose, Inc.’s predecessor company.
Id. ¶ 1. The directors of the predecessor company allegedly formed Precision Dose, Inc., which
dealt in the same type of business. Id. Following the defendants’ tender of the underlying
lawsuit, the insurer, Pekin, denied that the policy covered any of the claims alleged, and it filed
a declaratory judgment action seeking a declaration that it had no duty to defend. Id. ¶ 2. The

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 policy provided that Pekin had a duty to defend against any suit seeking damages for “personal
injury” or “advertising injury.” Id. ¶ 15.
¶ 29 After the defendants’ filed an answer, affirmative defense, and counterclaim to Pekin’s
declaratory judgment complaint, the parties filed cross-motions for summary judgment. Id.
¶¶ 18-19. The defendants argued that the underlying complaint’s claims contained allegations
triggering the duty to defend an “advertising injury.” Id. ¶ 19. The defendants supported the
motion with an affidavit from Precision Dose’s director, attesting that the company took over
its predecessor’s marketing and advertising brochures, which it used to target the same types
of customers as alleged in the underlying complaint. Id. ¶ 20. Pekin moved to strike the
affidavit because the defendants had failed to show that Pekin knew of the attestations
contained in the affidavit when it denied coverage under the policy. Id. ¶ 21. The trial court
struck the affidavit and granted summary judgment in favor of Pekin, and defendants appealed.
Id. ¶ 22.
¶ 30 On appeal, the defendants relied on Wilson and argued that the trial court erroneously
rejected the affidavit when determining Pekin’s duty to defend. Id. ¶ 41. This court held that
the true-but-unpleaded-facts doctrine articulated in Shriver did not apply, as the affidavit was
not plead in the underlying action. Id. ¶ 43. We further found that the defendants’ failure to
disclose the facts in the affidavit until they filed their cross-motion for summary judgment
provided more reason for striking it. Id. ¶ 45. “By delaying the disclosure of additional facts
bearing on Pekin’s duty to defend, defendants left Pekin without knowledge of true but
unpleaded facts that, when taken together with the allegations in the complaint, indicated that
the claims were potentially covered by the policy.” Id.
¶ 31 Returning to the case at bar, McKeown’s explanation that the allegedly converted items
were “mistakenly removed by a subcontractor” was not known to Pekin until McKeown
included the explanation in its counterclaim for declaratory judgment. McKeown never
provided an affidavit or other communication to inform Pekin of the identity of the
subcontractor purportedly responsible for taking the items from claimants’ property, further
hindering any prospect of investigating the validity of McKeown’s claim for coverage under
the policy. Where the insurer is unaware of a purportedly true but unpleaded fact, that fact may
not be considered in determining the duty to defend. Id. (citing Konstant Products, Inc. v.
Liberty Mutual Fire Insurance Co., 401 Ill. App. 3d 83, 88 (2010)). Based on this court’s
holdings in both Shriver and Precision Dose, McKeown’s explanatory allegations may not be
considered in determining Pekin’s duty to defend. McKeown’s assertion that the trial court
needed to consider claimants’ answer to its interrogatory (see supra ¶ 9) is misguided for the
same reason, as the answer was attached to its cross-motion for summary judgment and our
review of the record reveals that it was not known by Pekin until that time. Therefore, under
the well-established principles of the true-but-unpleaded-facts doctrine articulated by this
court, McKeown’s argument on this issue must fail.
¶ 32 McKeown further argues that the trial court erroneously drew inferences from the
allegations in the underlying complaint when the court inferred that the conversion claim
alleged an intent to injure claimants. McKeown asserts that the trial court improperly construed
the facts alleged because the underlying complaint does not allege that McKeown acted with
knowledge of a lack of authorization or consent or that it had the ability to return the items
allegedly converted. This inference of intent to injure, McKeown argues, was inconsistent with
the trial court’s duty to liberally construe the allegations in favor of the insured in determining

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 whether the facts alleged fell within the policy’s scope. See Wilson, 237 Ill. 2d at 455-56;
Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 363 (2006).
¶ 33 McKeown directs this court to Insurance Corp. of Hanover v. Shelborne Associates, 389
Ill. App. 3d 795 (2009), to support its argument that a claim for conversion can still trigger a
duty to defend when the insured asserts that it had no intent to injure. Notwithstanding the
timing of McKeown’s revelations that the conversion of claimants’ items was an accident, the
facts of the above-cited cases do not support McKeown’s position.
¶ 34 In Shelborne, the underlying complaint contained two counts alleging the possibility of
intentional or negligent conduct, in that, “[the insured] knew or should have known” that its
action was “wrongful and without authorization.” (Internal quotation marks omitted.) Id. at
803. Based on the underlying complaint’s allegations, there was the possibility that the
insured’s liability could be found through an intentional act or negligence. Id. Because the
underlying complaint alleged facts potentially within the policy’s coverage, the insurer’s duty
to defend was triggered. Id. In contrast, the allegations in the underlying complaint in the case
at bar contain no such facts to raise the possibility of any liability not rooted in McKeown’s
intentional act of conversion.
¶ 35 In paragraphs 20 and 21 of the underlying complaint, claimants allege the following facts
regarding McKeown’s conversion of items:
“20. On or about July 2013, [McKeown], without authority and knowledge of the
[claimants], took hundreds of planks of knotty pine wood, a Dutch door, a hand sink,
four windows and [a] glass door knowingly belonging to the [claimants] without
[claimants’] consent.
21. On or about July 2013, [claimants] demanded that the hundreds of planks of
knotty pine wood, a Dutch door, a hand sink, four windows and [a] glass door be
returned to them and [McKeown] refused.”
We cannot agree with McKeown’s assertion that “refused” is an ambiguous term in the
complaint that must be resolved in its favor because it could describe “a willful decision not to
return items when fully capable of doing so, but just as reasonably could describe informing
the claimants that it was not possible to return the items.”
¶ 36 The complaint must be read as a whole to assess its true nature. American Family Mutual
Insurance Co. v. Roth, 381 Ill. App. 3d 760, 766 (2008). The facts alleged in the complaint
reveal whether the insurer has a duty to defend, not arguments as to the semantics of those
facts. Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons, 315 Ill.
App. 3d 552, 563 (2000). Here, in addition to the allegations in paragraphs 20 and 21, the
underlying complaint alleged that McKeown’s taking of, and refusal to return, the items was
“willful, wanton, malicious, and oppressive and undertaken with the intent to defraud.”
Reading the complaint as a whole, the facts alleged do not lead to a reasonable interpretation
that McKeown’s alleged conversion was a mistake. Claimants unambiguously alleged an
intentional tort of conversion.
¶ 37 As the underlying complaint clearly alleged an intentional act on the part of McKeown, the
“property damage” was not caused by an “occurrence” as defined in the policy. “ ‘The use of
the word “occurrence” in insurance policies broadens coverage and eliminates the need to find
an exact cause of damages as long as they are neither intended nor expected by the insured.’ ”
Rock v. State Farm Fire & Casualty Co., 395 Ill. App. 3d 145, 149 (2009) (quoting Indiana

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 Insurance Co. v. Hydra Corp., 245 Ill. App. 3d 926, 929 (1993)). The occurrence must still be
accidental. Id. An “accident” is “ ‘an unforeseen occurrence, usually of an untoward or
disastrous character or an undesigned sudden or unexpected event of an inflictive or
unfortunate character.’ ” Id. (quoting Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d
617, 619 (1980)). “The natural and ordinary consequences of an act do not constitute an
accident.” West Bend Mutual Insurance Co. v. People, 401 Ill. App. 3d 857, 865 (2010).
¶ 38 Based on the clear and unambiguous allegations of intentional conduct by McKeown in
claimants’ underlying claim for conversion, no accident or “occurrence” as defined by the
policy triggered Pekin’s duty to defend. The trial court did not err in granting summary
judgment to Pekin, as there is no reasonable interpretation of claimants’ allegations other than
one of intentional conversion against McKeown.
¶ 39 We now turn to McKeown’s final contention. McKeown contends that the trial court erred
in denying its motion to reconsider the grant of summary judgment to Pekin because the court
misapplied the law in ruling that the allegations in the underlying complaint established no
possibility that an accident occurred giving rise to Pekin’s duty to defend under the terms of
the policy. McKeown argues that the underlying complaint makes no allegation that an injury
was intended but rather raises the possibility that any injury to claimants was an accident and,
thus, could be considered an “occurrence” under the policy.
¶ 40 A motion to reconsider must bring to the trial court’s attention (1) newly discovered
evidence, (2) changes in the law, or (3) errors in the court’s previous application of existing
law. Liceaga v. Baez, 2019 IL App (1st) 181170, ¶ 25. We review for an abuse of discretion
the trial court’s disposition of a motion to reconsider that is based on new evidence, facts, or
legal theories not presented in prior proceedings. Horlacher v. Cohen, 2017 IL App (1st)
162712, ¶ 80. An abuse of discretion occurs only when the court acts so arbitrarily that no
reasonable person would take the court’s position. Payne v. Hall, 2013 IL App (1st) 113519,
¶ 12.
¶ 41 McKeown’s argument here is also unpersuasive. The underlying complaint is clearly
predicated on an intentional act, the alleged taking of claimant’s property “without consent”
and with “intent to defraud.” Generally, an insurance company is under no duty to defend an
insured when the nature of the conduct alleged conclusively established as a matter of law that
the insured expected or intended to injure the plaintiff. See Westfield National Insurance Co.
v. Continental Community Bank & Trust Co., 346 Ill. App. 3d 113, 119 (2003). Based on the
underlying complaint’s allegations of conduct that was “willful, wanton, malicious, and
oppressive and *** undertaken with the intent to defraud,” the above-cited general rule of no
duty to defend is operative here. Therefore, the trial court’s denial of McKeown’s motion to
reconsider the grant of summary judgment to Pekin was not an abuse of discretion.

¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 44 Affirmed.

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