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FIFTH DIVISION
June 13, 2003

MODIFIED UPON REHEARING

JUSTICE QUINN delivered the opinion of the court:

In the underlying action in this case, plaintiff, a police officerpedestrian, was struck by a taxicab. The driver was convicted ofmisdemeanor battery as a result of that occurrence. Plaintiff filed suit against the taxicab driver and the taxicab company, allegingnegligence. The insurer of both the driver and the cab companyundertook the defense of the personal injury case.

While the tort action was pending, the driver-insured filed suitseeking a declaration that the insurer was obligated to provide him withindependent counsel because of a conflict of interest. Plaintiff fromthe underlying suit was granted leave to intervene. The insurer fileda counterclaim naming plaintiff, the driver and Yellow Cab, seeking adeclaration that it had no duty to defend the driver. On cross-motionsfor summary judgment, the trial court granted the insurer's motion forsummary judgment. The plaintiff in the underlying suit filed a motionto reconsider which was denied. Plaintiff in the underlying suit nowappeals. The insured driver has not appealed.

For the following reasons, we affirm in part, reverse in part, andremand for further proceedings.

I. BACKGROUND

On October 31, 1996, Herman Davila, an Illinois State Policeofficer, was on duty outside the Thompson Center in Chicago. ThomasWilliams, was driving a taxicab east on Lake Street adjacent to theThompson Center. While another police officer was directing traffic onLake Street, Davila observed Williams repeatedly blowing his car horn. Davila approached Williams' cab, opened the door and leaned inside thecab. While Davila was leaning inside the cab, Williams began driving,forcing Davila to run alongside the cab for 15 feet. Davila sufferedinjuries.

Williams was charged with misdemeanor battery as a result of hisactions on October 31, 1996. Transcripts provided in the record onappeal establish that on October 9, 1997, following a jury trial,Williams was convicted of battery and sentenced to community service andprobation.

On May 12, 1998, Davila filed a civil complaint naming Williams andYellow Cab Company (Yellow Cab) as defendants. Both Yellow Cab andWilliams were insured by American Country Insurance Company (American). At the time of the occurrence, American and Yellow Cab were bothsubsidiaries of a company known as Great Dane Holdings. The complaintalleged that Williams was the agent and servant of Yellow Cab and wasoperating a taxicab owned by Yellow Cab. The complaint alleged thatWilliams and Yellow Cab were negligent in failing to yield to Davila,in driving recklessly, in failing to keep a proper lookout and inoperating a vehicle with defective brakes and steering. Americanundertook the defense in this case, retaining Johnson & Bell torepresent Williams and Jesmer & Harris to represent Yellow Cab. Priorto retaining counsel, American notified Williams by mail that it was"handling this matter under a complete reservation of rights under theterms and conditions of your policy." The letter informed Williams thatan investigation revealed that Williams was cited with criminal batteryand that his policy provided an exclusion for intentional injury. Inhis answer to Davila's complaint, Williams' attorney denied thatWilliams was an agent of Yellow Cab.

In an affidavit, Williams averred that the defense provided byAmerican was inadequate and represented a conflict of interest. Williams averred that on July 21, 1999, he complained about theinadequacy to American and requested appointment of alternative counsel. Williams averred that Johnson & Bell failed to conduct discovery toassist in his defense. Williams averred that American denied thisrequest.

On October 1, 1999, Williams filed the instant declaratory actionagainst American. In count I of the complaint, Williams alleged thatAmerican failed to warn Williams of an actual or potential conflict ofinterest in defending the underlying action. Williams further allegedthat there was a conflict of interest in that proof of intentionalconduct on the part of Williams would shift responsibility from Americanto Williams. In count II, Williams alleged that American breached itsduty to defend by failing to provide him with access to the East BankHealth Club, in order to locate a potential witness. Williams alsolisted numerous acts and omissions that constituted breaches ofAmerican's duty to defend. Williams sought a court order requiringAmerican to provide Williams independent counsel and access to the EastBank Health Club.

On November 1, 1999, American filed a motion to dismiss Williams'declaratory judgment complaint. American alleged that Williams had notpled the type of conflict of interest that would require American togive up the right to control Williams' defense. Namely, Americanalleged that the intentional acts exclusion of the insurance policycould not give rise to a conflict of interest where the underlying casesounded in negligence. American further alleged that it owed no dutyto give Williams access to the East Bank Health Club. The trial courtdenied American's motion to dismiss with respect to count I, and grantedthe motion with respect to count II. The dismissal of count II has notbeen raised on appeal.

On December 13, 1999, Davila was granted leave to intervene inWilliams' declaratory action. The parties then filed cross-motions forsummary judgment. Williams alleged that his battery conviction createda coverage defense, therefore presenting a conflict of interest. American's motion maintained that Illinois law has recognized that aconflict of interest arises out of the intentional acts exclusion of aninsurance policy only where the underlying complaint alleges bothnegligence and battery and where punitive damages were sought. Following argument on the motions, the trial court entered an orderstating that, in light of the recent decision in American Family MutualInsurance Co. v. Savickas, 193 Ill. 2d 378 (2000), it could not addressthe cross-motions until a duty to defend had been determined. The courtinvited briefs in support of or in opposition to the applicability ofSavickas to the case at bar.

American subsequently filed a counterclaim alleging that Williams'battery conviction established that his conduct was intentional and thathe was excluded from coverage under the intentional acts exclusion ofhis policy. The policy provided:

"B. EXCLUSIONS

1. EXPECTED OR INTENDED INJURY

'Bodily injury' or 'property damage' expected or intendedfrom the standpoint of the 'insured.' "

Williams responded that American was estopped from denying coverage byreason of prejudice to Williams caused by American directly defendingthe underlying suit. American then filed a second motion for summaryjudgment based on its counterclaim. American also filed a motion todismiss the declaratory action claiming that it was moot where Americanhad agreed, by letter dated January 25, 2001, to relinquish control ofthe underlying suit under certain conditions.

On June 29, 2001, the trial court granted American's motion forsummary judgment as to the counterclaim and its motion to dismiss. Thecourt relied upon the holding in Savickas. In Savickas, the supremecourt held a murder conviction collaterally estopped an insured fromlater contesting the applicability of the intentional acts exclusion ofhis policy. As all the elements for collateral estoppel had been met,the trial court held that Williams was estopped from denying his conductwas intentional because of his criminal conviction. Applying theholding in Savickas to the facts of this case, the trial court held thatAmerican had no duty to defend or indemnify Williams.

On July 21, 2001, Davila filed a motion to reconsider. Williamsdid not file a motion to reconsider. The trial court denied Davila'smotion. Davila now appeals that ruling.

We also note that on June 21, 2000, Yellow Cab filed a motion forsummary judgment in the underlying suit contending that Williams was notYellow Cab's agent at the time of the occurrence. The trial court inthat case granted Yellow Cab's motion. Davila appealed that ruling tothis court. In an opinion, this court reversed the ruling of the trialcourt and remanded the case. Davila v. Yellow Cab Co., 333 Ill. App.3d 592 (2002)(Davila I). In Davila I, we held that the dispositiveissue was not whether Williams acted intentionally but whether hisintentional, negligent or criminal acts were performed within the scopeof employment. Davila I, 333 Ill. App. 3d at 600. Therefore, becausematerial questions of fact existed as to whether Williams was anemployee or agent of Yellow Cab, the summary judgment ruling on theissue of agency was erroneous.

II. ANALYSIS

Davila argues that the trial court erred in granting summaryjudgment to American. Specifically, Davila maintains that the trialcourt erred in failing to address whether American was estopped fromasserting its coverage defenses where American participated in thedefense of the underlying suit when it had a conflict of interest withWilliams. Davila also maintains that although the three thresholdrequirements for application of the collateral estoppel doctrine underSavickas are present in this case, the trial court erred in applyingSavickas to these particular facts.

Our review of the trial court's grant of summary judgment is denovo. Natale v. Gottlieb Memorial Hospital, 314 Ill. App. 3d 885, 888(2000). Summary judgment is properly granted " 'where the pleadings,affidavits, depositions, admissions, and exhibits on file, when viewedin the light most favorable to the nonmovant, reveal that there is nogenuine issue as to any material fact and that the movant is entitledto judgment as a matter of law.' " Natale, 314 Ill. App. 3d at 888,quoting Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). Thefunction of a reviewing court on appeal from a grant of summary judgmentis limited to determining whether the trial court correctly concludedthat no genuine issue of material fact was raised and, if none wasraised, whether judgment as a matter of law was correctly entered.Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997).

First, we note that American has advanced an argument that Daviladoes not have standing in this case. American, relying on WesternCasualty & Surety Co. v. Brochu, 105 Ill. 2d 486 (1985), argues thatDavila's only basis to estop American from asserting the intentionalacts exclusion to the policy is rooted in conflicts arising fromAmerican's representation of Williams, Davila is not a party to thatconflict and, therefore, Davila lacks standing. We disagree.

In Brochu, an insurer brought an action seeking a judicialdeclaration that the general comprehensive liability policy which itissued to a home builder did not apply to a property damage claimbrought against the builder by home purchasers. The trial court grantedsummary judgment against the insurer. Our supreme court affirmed. Inrefusing to address the home purchasers' contention that the insurer'sreservation of rights letter gave rise to a conflict of interest thecourt stated:

"The issue is raised in this court for the first time by theBrochus. Certainly, even if the issue were properlypreserved, the Brochus are not the proper party to contestSullivan's actions, as no attorney-client relationshipexisted between them. Rather, Sullivan represented Mark III,the Brochus' adversary, in the underlying action." Brochu,105 Ill. 2d at 501.

American points to this language as support for its argument.

American's reliance on Brochu is unpersuasive. First we note, asAmerican itself concedes, that the quoted language upon which Americanrelies is dicta. Second, the supreme court in Brochu initially foundthe Brochus' conflict of interest claim was waived on the separateground that the record clearly established that the issue was neverraised in the circuit court or in the appellate court. Our case isdistinguishable where the record establishes that the conflict ofinterest issue, one of the primary contentions on appeal, was clearlyraised in the trial court below. Furthermore, recent case law supportsfinding standing in this case. In Dial Corp. v. Marine Office ofAmerica, 318 Ill. App. 3d 1056 (2001), we noted:

"In Zurich Insurance Co. v. Baxter International, Inc.,173 Ill. 2d 235, 670 N.E.2d 664 (1996), and Flashner MedicalPartnership v. Marketing Management, Inc., 189 Ill. App. 3d45, 545 N.E.2d 177 (1989), the tort claimants were found tobe necessary parties in a declaratory judgment action betweenthe insured tortfeasor and the insurer. In Hapag-Lloyd(America), Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087,1094, 729 N.E.2d 36 (2000), this court stated: 'It isIllinois public policy that underlying claimants have asubstantial interest in how insurance questions are resolved. The Illinois Supreme Court found that "this interest is bestprotected by having the claimants participate directly in thelitigation between the insurance carrier and the insured,rather than by allowing the claimants to sue the carrierindependently."' Hapag-Lloyd, 312 Ill. App. 3d at 1094,quoting Zurich Insurance Co. v. Baxter International, Inc.,173 Ill. 2d at 246; see also Flashner Medical Partnership v.Marketing Management, Inc., 189 Ill. App. 3d at 53-53(holding that tort claimants have a real and substantialinterest in the outcome of the insurance coverage controversybecause the coverage determination could eliminate a sourceof funds)." Dial Corp., 318 Ill. App. 3d at 1062.

Therefore we find that Davila has standing in this case.

The issue before this court is limited to the coverage actionbrought by Williams. More specifically, this court must only decidewhether the trial court was correct in holding that American had no dutyto defend Williams in the underlying suit where he was, in a priorhearing, convicted of criminal battery. We are not here to decide theunderlying liability of Williams and Yellow Cab in this case.

In Davila I, we held that the trial court erred in granting summaryjudgment to Yellow Cab on the issue of agency where material questionsof fact existed as to whether Williams was an employee or agent ofYellow Cab. We noted that in making its ruling, the trial court did notmake any specific findings as to whether Williams was acting within thescope of his employment, but questioned whether Yellow Cab could be heldliable for Williams' conduct after Williams was convicted of anintentional crime. Davila I, 333 Ill. App. 3d at 599. On appeal, werejected the notion that the holding in Savickas provided a basis forgranting summary judgment to Yellow Cab. We first noted that there wasno evidence in the record that Williams was convicted of battery. Davila I, 333 Ill. App. 3d at 599. Further, we noted that under thedoctrine of respondeat superior, Yellow Cab could still be heldvicariously liable for the tortious acts of Williams, whether those actswere negligent, wilful, malicious, or even criminal if such acts werecommitted in the course of Williams' employment and in furtherance ofthe business of Yellow Cab. Davila I, 333 Ill. App. 3d at 600. Therefore, the dispositive issue in determining liability was notwhether the act was intentional, but whether the act was within thescope of employment. We held that, based on the evidence in the record,this should be decided by the finder of fact at trial. Davila I, 333Ill. App. 3d at 600.

However, in the instant case, where coverage is at issue, Savickasis directly on point. In Savickas, Michael Savickas was convicted offirst degree murder. The administrator of the victim's estate suedSavickas for wrongful death and survival. American Family Insurancefiled a declaratory judgment action to determine whether it had todefend or indemnify Savickas, contending that it should be excused fromdoing so where Savickas' policy contained an exclusion for intentionalinjury. The trial court granted American Family summary judgment. Theappellate court reversed. The supreme court reversed the decision ofthe appellate court.

The supreme court stated that collateral estoppel is an equitabledoctrine, the application of which precludes a party from relitigatingan issue decided in a prior proceeding. Savickas, 193 Ill. 2d at 387;citing Talarico v. Dunlap, 177 Ill. 2d 185, 191 (1997). The courtcontinued:

"There are three threshold requirements which must be metbefore the doctrine may be applied. First, the issue decidedin the prior adjudication must be identical with the onepresented in the suit in question. Second, there must havebeen a final judgment on the merits in the prioradjudication. Third, the party against whom estoppel isasserted must have been a party or in privity with a party tothe prior adjudication." Savickas, 193 Ill. 2d at 387,citing People v. Nance, 189 Ill. 2d 142, 147 (2000).

Also, the party sought to be bound must have actually litigated theissue and a decision on the issue must have been necessary to thejudgment in the first litigation. Savickas, 193 Ill. 2d at 387. Inaddition to the threshold requirements, the supreme court instructedthat collateral estoppel should not be applied unless it is clear thatno unfairness will result to the party sought to be estopped. Savickas,193 Ill. 2d at 388. The right of the plaintiff in the underlying tortaction to recover from the insurer is wholly derivative of the insured'sright to indemnity and the plaintiff can have no greater rights againstthe insurer than the insured. Savickas, 193 Ill. 2d at 392. A party'sincentive to litigate the issue in the prior action is also potentiallyrelevant. Savickas, 193 Ill. 2d at 388.

The court held that Savickas could be estopped with his murderconviction. The court initially noted that all three threshold criteriawere met in the case. In finding Savickas guilty of first degreemurder, the jury necessarily found Savickas to have either intended tokill the victim, or at least to have known there was a strongprobability his acts would result in death or great bodily harm. Thedirect issue in the declaratory action, whether Savickas " 'intended orexpected' " the result of his actions, was therefore established by theguilty finding. Savickas, 193 Ill. 2d at 388. The court also statedthat it did not see any potential unfairness to Savickas where he hada full and fair opportunity to litigate all relevant issues in hiscriminal trial and did so. Savickas, 193 Ill. 2d at 389. Savickas hadfull incentive to litigate his criminal charge as well where he "wasfacing charges of first degree murder for the shooting death of hisvictim, a charge with a minimum penalty of 20 years' imprisonment anda potential maximum penalty of 60 years' imprisonment even in theabsence of any aggravating factors." Savickas, 193 Ill. 2d at 389. Thecourt ruled that American had no duty to defend or indemnify Savickasagainst a judgment in the underlying case. Savickas, 193 Ill. 2d at 391. The court's ruling in Savickas overruled the portion of Thorton v. Paul,74 Ill. 2d 132 (1978), which held that a criminal conviction merelyconstituted prima facie evidence of the facts on which it is based. Savickas, 193 Ill. 2d at 38.

One of the issues in the instant case is whether Williams "intendedor expected" to cause bodily injury to Davila. If Williams intended todo so, his acts would be excluded from coverage under the policy. Davila concedes in his brief that the three threshold criteria forcollateral estoppel are met in this case. Contrary to the recordpresented to this court in Davila I, the record on appeal in thisdeclaratory action contains the trial transcript from Williams' batteryconviction. The record shows that Williams had a full opportunity tolitigate the criminal charge. The transcript clearly shows thatWilliams was present at trial, he had an attorney represent him attrial, he testified at that trial, his attorney cross-examined witnessesand presented both an opening statement and a closing argument, andWilliams was clearly convicted by a jury of battery. We find Davila'sclaim that Williams' lawyer did not conduct any investigation in thebattery case unpersuasive where it is not supported by the record. Itis also evident that Williams had every incentive to litigate thecharge. The battery conviction was a class A misdemeanor (720 ILCS5/12-3 (West 1996)) and carried a possible sentence of up to one yearin jail (730 ILCS 5/5-8-3(a)(1) (West 1996)). In addition, as the trialcourt noted, it is persuasive that Williams himself was an attorney andtherefore it can be assumed he knew the gravity of the charge and knewthat he had the right to appeal if he felt the trial was unfair, butchose not to. Also, as American aptly points out, Davila essentiallycreated his current dilemma. Davila decided to press charges againstWilliams for battery and ultimately the jury convicted Williams of thecrime.

American argues that applying collateral estoppel is fair whereDavila has no right to claim greater rights than Williams in contestingcoverage. The injury plaintiff's rights against an insurer are whollyderivative of the insured's contractual right to indemnity andconsequently, the injury plaintiff can have no greater contractualrights against the insurer. See Savickas, 193 Ill. 2d at 392. Therefore, as in Savickas, collateral estoppel is appropriate in thiscase. In convicting Williams of battery, the jury found that he"knowingly and by any means caused bodily harm to another person." Battery is an intentional crime. Williams is therefore estopped fromfurther litigating whether his acts were intentional and the intentionalacts exclusion of the policy applies in this case.

In response, Davila contends that after determining that theintentional act exclusion applied, the trial court erred in failing toconsider whether American should be estopped from asserting its coveragedefenses, or failing to hold that American waived those coveragedefenses, because it represented Williams in the underlying action whenconflicts of interest were present.

The insurance policy at issue conferred a duty upon American todefend Williams in the underlying action. It provided, in relevantpart:

"We have the right and duty to defend an 'insured' against a'suit' asking for such damages. However, we have no duty todefend any 'insured' against a 'suit' seeking damages for'bodily injury' or 'property damage' to which this insurancedoes not apply."

The general rule in Illinois is that an insurer is obligated todefend an action against an insured when the complaint containsallegations which bring the claim actually or potentially within thepolicy. Konami (America), Inc. v. Hartford Insurance Co. of Illinois,326 Ill. App. 3d 874, 878 (2002). The test of whether a conflict ofinterest exists, allowing the insured to assume control of the defense,is if, in comparing the allegations of the complaint to the terms of thepolicy, the insurer's interests would be furthered by providing a lessthan vigorous defense to the allegations. Illinois Masonic MedicalCenter v. Turegum Insurance Co., 168 Ill. App. 3d 158, 163 (1988). Theinsurer facing a conflict of interest with its insured in the conductof the insured's defense is not obligated or even permitted toparticipate in the defense. Murphy v. Urso, 88 Ill. 2d 444, 454 (1981). The exception to the general rule requiring that an insurer defend aninsured only applies where an actual conflict of interest appears, ifthe conflict is merely potential, the general rule applies. Murphy, 88Ill. 2d at 458.

We agree with Davila that under Murphy v. Urso, 88 Ill. 2d 444, aconflict of interest could exist in this case where agency issuespossibly influenced American to present defenses diametrically opposedto Williams' interests. Namely, it would be in Williams' best interestto present a defense that he was an agent of Yellow Cab, while it wouldbe in Yellow Cab's best interest to establish the exact opposite. American asserts that there is no conflict of interest arising out ofthe issue of agency where "[c]overage either existed as to bothdefendants, or coverage was excluded as to both defendants" under theintentional acts exclusion of the policy.

In response, Davila asserts that this argument misconstrues theinsurance policy at issue. Specifically, Davila cites the language ofthe intentional acts exclusion: "'Bodily injury' or 'property damage'expected or intended from the standpoint of the 'insured.'" Davilaargues that this language allows coverage to be excluded as to oneinsured (Williams) and remain in effect as to the other insured (YellowCab). While intentional conduct on the part of Williams would causecoverage to be excluded as to Williams, it would exclude coverage as toYellow Cab only if Yellow Cab expected or intended the injury to Davila. Therefore, American could be liable for Williams' intentional conductas the insurer for Yellow Cab if Williams is Yellow Cab's agent underthe doctrine of respondeat superior. In fact, in Davila I wespecifically found that Yellow Cab may be liable under this theory. Davila, 333 Ill. App. 3d at 600-01.

We note that Davila failed to raise this argument before the trialcourt. An argument not raised in the trial court is generallyconsidered waived for purposes of appeal. Nasrallah v. Davilla, 326Ill. App. 3d 1036, 1046 (2001). However, as we are remanding this case,the parties may argue this point in the trial court.

American argues that even if a conflict of interest existed,summary judgment was still proper in this case where Davila failed toestablish prejudice. American relies on Western Casualty & Surety Co.v. Brochu, 105 Ill. 2d 486. In Brochu, an insurer brought an actionseeking a judicial declaration that a general comprehensive liabilitypolicy which it had issued to a home builder did not apply to a propertydamage claim brought against the builder by purchasers of the home. Thebuilder, Mark III, asserted that the insurance company had waived theright to deny coverage by undertaking the defense of the case while ithad a conflict of interest. The appellate court held that waiver hadnot been established under the facts of the case, yet it remanded thecause to the trial court, finding a factual dispute remained as toestoppel.

The supreme court affirmed the remandment, stating:

"An insurer may be estopped from asserting a defense ofnoncoverage if it undertakes the defense of an action andthat undertaking results in some prejudice to the insured.[Citation.] Estoppel refers to an abatement, raised by law,of rights and privileges of the insurer where it would beinequitable to permit their assertion; such relinquishmentneed not be voluntary, intended, or desired by the insurer,but it necessarily requires prejudicial reliance on the partof the insured. [Citation.] Whether the insured has beenprejudiced is a question of fact. [Citation.] The burden ofestablishing that fact rests with the insured and must beproved by clear, concise, and unequivocal evidence.[Citation.] Prejudice will not be presumed. [Citation.]." Brochu, 105 Ill. 2d at 499-500.

The court, in finding that genuine issues of material fact remainedbetween the parties, held that the appellate court was correct inremanding the cause for a determination on the issues. Brochu, 105 Ill.2d at 500.

Although American relies on Brochu for the proposition that noprejudice was established in this case, we find that Brochu dictatesthat this case must be remanded to the trial court to determine whetherthere was a conflict of interest between American and Williams, and ifso, whether Williams (and consequently Davila) was prejudiced byAmerican's failure to retain independent counsel to represent Williams. Here, the conflict of interest issue was clearly raised before the trialcourt. In arguing that there was a conflict of interest, Williamspointed out that in his answer to plaintiff's complaint in theunderlying action, the attorney retained by American to representWilliams denied that Williams was an agent of Yellow Cab, even thoughthis would ultimately relieve Yellow Cab of liability, leaving Williamsto pay any judgment. The trial court, in ruling on the motion forsummary judgment, found that the holding in Savickas made this pointmoot. We disagree.

As Davila asserts, the Savickas court expressly noted that itsholding was not intended to alter the insurer's obligation when facedwith a potential conflict of interest.

"We reiterate that by our holding here we overrule onlythat portion of Thornton [Thornton v. Paul, 74 Ill. 2d 132(1978)] regarding the effect of a prior conviction in asubsequent civil case. The Thornton analysis of whatconstitutes fulfillment of an insurer's duty to defend whenthere is a conflict of interest between the insurer and theinsured remains good law." Savickas, 193 Ill. 2d at 387.

Therefore, the issue of whether American's defense of this case resultedin prejudice is not moot. We also reject American's assertion that thisissue is moot where it offered to allow Williams to retain independentcounsel. This offer was not made until January 25, 2001, and theinstant suit was filed on May 12, 1998. In Brochu, the supreme courtheld that the appellate court was correct in remanding the case for ahearing to determine whether the insured was prejudiced by the insurer'srepresentation for a period of 11 months. Brochu, 105 Ill. 2d at 499-500. Since material questions of fact exist as to whether a conflictof interest is present here and whether Williams was prejudiced byAmerican's representation, the trial court improperly granted summaryjudgment to American without deciding these issues.

Consequently, we affirm the trial court's holding that Savickasprecludes Williams (and Davila) from contesting the fact that Williams'battery conviction established that his conduct in injuring Davila wasintentional. We vacate the trial court's grant of summary judgment andremand this case to the trial court to determine whether a conflict ofinterest is present and whether Williams was prejudiced by American'sfailure to pay for independent counsel to represent Williams.

Upon remand, Davila shall be allowed to assert Williams' conflictof interest claim in his effort to estop American from denying coverage.

For the foregoing reasons, we affirm in part, reverse in part, andremand for further proceedings.

Affirmed in part and reversed in part; cause remanded.

CAMPBELL, P.J., and REID, J., concur.