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THIRD DIVISION

December 4, 2002

JUSTICE WOLFSON delivered the opinion of the court:

This dispute is about the extent of coverage provided to alaw firm in a general liability policy.

Gould & Ratner, a law firm, purchased the insurance policyfrom Vigilant Insurance Company doing business as Chubb Group ofInsurance Companies (Vigilant). Gould & Ratner was sued by DavidCarmell for defamation and breach of fiduciary duty (theunderlying suit). Gould & Ratner notified Vigilant of the suit. Vigilant said it had no duty to defend or indemnify Gould &Ratner in the underlying suit because Carmell's claims wereexcluded from coverage. Gould & Ratner defended itself andeventually settled the underlying suit.

Gould & Ratner then sued Vigilant for breach of theinsurance contract. Vigilant filed a countercomplaint for adeclaratory judgment. Vigilant also filed an answer andaffirmative defenses. On Vigilant's motion, the trial courtgranted summary judgment in Vigilant's favor on both Gould &Ratner's suit and Vigilant's countersuit.

Gould & Ratner appeals, contending: (1) Vigilant breachedits duty to defend by neither defending Gould & Ratner under areservation of rights nor filing a timely declaratory judgmentaction; and (2) Vigilant's countercomplaint was untimely as amatter of law and an improper basis for summary judgment. Weaffirm.

FACTS

The Insurance Policy

Gould & Ratner purchased a commercial insurance policy fromVigilant for the term July 15, 1996, to July 15, 1997. Thepolicy included coverage for "personal injury *** if caused by anoffense committed during the policy period." "Personal injury"was defined in the policy as

"injury, other than bodily injury, arising out of one ormore of the following offenses committed in the course ofyour business, other than your advertising activities:

***

4. oral or written publication of material that slandersor libels a person or organization or disparages aperson's or organization's goods, products or services***."

The insurance policy contained a "Professional Exclusion." This exclusion provided:

"With respect to bodily injury, property damage, personalinjury or advertising injury or any obligations assumed bycontract:

This insurance does not apply to any claim or suit againstthe Insured for:

a. rendering or failing to render written or oralprofessional legal services or advice; or

b. rendering or failing to render any other written ororal services or advice that are not ordinary to thepractice of law;

whether or not the Insured is acting in the capacity of alawyer." (Emphasis in original.)

The insurance policy also contained an exclusion for:

"Personal injury or advertising injury:

1. arising out of oral or written publication of material,if done by or at the direction of the insured with knowledgeof its falsity; ***." (Emphasis in original.)

The Underlying Suit

On February 13, 1997, Carmell filed a six-count complaintagainst Gould & Ratner and Jonathan Backman, a partner at Gould &Ratner, for defamation and breach of fiduciary duty.

According to the complaint, Carmell was a client of Gould &Ratner. In 1996, Apex Automotive Warehouse, L.P. (Apex) filedbankruptcy. During the bankruptcy proceedings, Gould & Ratneralso represented Apex.

In the complaint, Carmell alleged that on August 14, 1996,Backman faxed to several people a letter containing unfavorablestatements about Carmell. Carmell alleged the statements wereuntrue. On August 27, 1996, Backman called Carmell as an adversewitness in the Apex bankruptcy proceedings and cross-examinedCarmell utilizing information that was protected by the attorney-client privilege. On November 5, 1996, Backman faxed to variouspeople another letter containing unfavorable statements aboutCarmell. Carmell alleged those statements were not true.

Gould & Ratner promptly tendered the complaint to Vigilantrequesting confirmation of coverage. On March 18, 1997, Vigilantrefused to defend or indemnify Gould & Ratner. Vigilant said theinsurance policy did not cover the breach of fiduciary claims. The defamation claims, Vigilant said, fell within the scope ofboth the Professional Exclusion and the Intentional FalsehoodExclusion.

Gould & Ratner subsequently settled the suit with Carmell;the Carmell suit was dismissed with prejudice on July 27, 2000.

On January 8, 2001, Gould & Ratner filed suit againstVigilant for breach of contract. On February 26, 2001, Vigilantfiled a countercomplaint for declaratory judgment seeking adeclaration of noncoverage and no duty to defend.

Gould & Ratner filed a motion to dismiss. Gould & Ratnercontended Vigilant's countercomplaint was untimely as a matter oflaw, citing Employers Insurance of Wausau v. Ehlco LiquidatingTrust, 186 Ill. 2d 127, 708 N.E.2d 1122 (1999), and Clemmons v.Travelers Insurance Company, 88 Ill. 2d 469, 430 N.E.2d 1104(1981) in support of its contention.

On August 10, 2001, the court granted Gould & Ratner'smotion to dismiss Vigilant's countercomplaint, holding thecountercomplaint was "untimely as a matter of law."

On September 7, 2001, Vigilant filed an answer andaffirmative defenses. In its affirmative defenses, Vigilant saidCarmell's suit was not covered under the policy because it fellwithin the scope of both the Professional Exclusion and theIntentional Falsehood Exclusion.

Gould & Ratner unsuccessfully moved to strike and dismissVigilant's affirmative defenses. Gould & Ratner contendedVigilant was estopped from raising these affirmative defensesbecause it refused to either defend under a reservation of rightsor timely file a suit for declaratory judgment.

On October 24, 2001, Vigilant filed a motion to reconsiderthe court's August 10 order dismissing its countercomplaint.

On December 19, 2001, the court, relying on Pekin InsuranceCompany v. L.J. Shaw & Company, 291 Ill. App. 3d 888, 684 N.E.2d853 (1997), said, "[T]he allegations of the Carmell complaint fitsquarely and unambiguously within [the Professional Exclusion]and as a result Vigilant had no duty to defend." Based on thisfinding, the court granted Vigilant's motion to reconsider,vacated its August 10, 2001, order dismissing Vigilant'scountercomplaint, and denied Gould & Ratner's motion to dismissthe countercomplaint.

On February 7, 2002, Vigilant filed a motion for summaryjudgment, relying primarily on Pekin Insurance Company and thetrial court's ruling on the motion to reconsider. On April 9,2002, the trial court granted Vigilant's motion for summaryjudgment on both Gould & Ratner's suit and Vigilant'scountersuit. This appeal followed.

DECISION

The Professional Services Exclusion

Gould & Ratner contends the trial court erred in grantingsummary judgment in favor of Vigilant. Gould & Ratner saysVigilant breached its duty to defend Gould & Ratner because theunderlying claim potentially fell within the coverage of theinsurance policy. In addition, says Gould & Ratner, sinceVigilant failed to either defend under a reservation of rights orfile a timely declaratory judgment action, Vigilant is estoppedfrom asserting policy defenses.

Vigilant says the doctrine of estoppel does not apply herebecause Vigilant had no duty to defend. According to Vigilant,the policy clearly provided no coverage or potential for coveragefor the claims raised in the underlying suit. For this reason,Vigilant says, the trial court did not err in granting summaryjudgment in its favor.

Summary judgment is proper where there are no genuine issuesof material fact and the moving party is entitled to judgment asa matter of law. Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1993). Theinterpretation of insurance policy provisions is a question oflaw suitable for summary judgment. Lexmark International, Inc.v. Transportation Insurance Co., 327 Ill. App. 3d 128, 134-35,761 N.E.2d 1214 (2001). We review a trial court's ruling on amotion for summary judgment de novo. Outboard Marine Corp., 154Ill. 2d at 102.

If an underlying complaint alleges facts within orpotentially within coverage and the policy includes a duty todefend, the insurer is obliged to defend the insured. EhlcoLiquidating Trust, 186 Ill. 2d at 153. But an insurer has noduty to defend where it is "clear from the facts of theunderlying complaint[] that the allegations failed to state factswhich bring the case within, or potentially within, the policy'scoverage." (Emphasis in original.) Ehlco Liquidating Trust, 186Ill. 2d at 153 (quoting U.S. Fidelity & Guaranty Co. v. WilkinsInsulation Co., 144 Ill. 2d 64, 74, 578 N.E.2d 926 (1991)).

The doctrine of estoppel provides that:

"an insurer which takes the position that a complaintpotentially alleging coverage is not covered under a policythat includes a duty to defend may not simply refuse todefend the insured. Rather, the insurer has two options:(1) defend the suit under a reservation of rights or (2)seek a declaratory judgment that there is no coverage. Ifthe insurer fails to take either of these steps and is laterfound to have wrongfully denied coverage, the insurer isestopped from raising policy defenses to coverage.[Citations.]" (Emphasis added.) Ehlco Liquidating Trust,186 Ill. 2d at 150-51.

This doctrine does not apply if the insurer has no duty todefend. Ehlco Liquidating Trust, 186 Ill. 2d at 151.

To determine whether the underlying complaint alleges factsthat potentially fall within the policy's coverage, we must"ascertain and give effect to the intentions of the parties asexpressed in [the policy]." American States Insurance Co. v.Koloms, 177 Ill. 2d 473, 479, 687 N.E.2d 72 (1997). If thepolicy terms are clear and unambiguous, "they must be given theirplain and ordinary meaning." Koloms, 177 Ill. 2d at 479. But ifthey are subject to more than one meaning, they will be construedagainst the insurer. Koloms, 177 Ill. 2d at 479. Provisionsthat limit or exclude coverage also are to be construed againstthe insurer. Koloms, 177 Ill. 2d at 478. However, we will notsearch for nonexistent ambiguities. Pekin Insurance Co., 291Ill. App. 3d at 892.

In Pekin Insurance Company v. L.J. Shaw & Company, we werefaced with a case similar to this one. Pekin Insurance Companyprovided L.J. Shaw & Company with a businessowners policy thatalso covered its employee, William Hall. Pekin Insurance Co.,291 Ill. App. 3d at 889. The insurance policy provided coveragefor personal injury. The policy defined "personal injury" as:

" 'injury *** arising out of one or more of the followingoffenses:

***

d. Oral or written publication of material that slandersor libels a person or organization or disparages aperson's or organization's goods, products orservices[.]' " Pekin Insurance Co., 291 Ill. App. 3dat 890-91.

The policy also contained a professional services exclusion,which excluded:

" 'j. 'Bodily injury', 'property damage', 'personal injury'or 'advertising injury' due to rendering or failure torender any professional service.' " Pekin Insurance Co.,291 Ill. App. 3d at 890.

Litho Productions, Inc., suffered a loss. Shaw and Hallrepresented Litho's insurers in the initial discussions withLitho over the claim. Litho was represented by Joseph P.Caufield & Associates, Inc., to negotiate the claim. PekinInsurance Co., 291 Ill. App. 3d at 889.

Caufield later sued Shaw and Hall for, among other things,intentional interference with contract and civil conspiracy forfalsely representing that Caufield overstated the damages. PekinInsurance Co., 291 Ill. App. 3d at 890. The underlying complaintalleged that the torts occurred during Shaw's and Hall'snegotiations over Litho's claim. Pekin Insurance Co., 291 Ill.App. 3d at 890.

Shaw and Hall tendered the complaint to Pekin InsuranceCompany. Pekin refused coverage and filed an action seeking adeclaration it had no duty defend or indemnify Shaw and Hall. Pekin contended the allegations in the underlying complaint fellwithin the insurance policy's professional services exclusion. Shaw and Hall contended the underlying claims were coveredbecause the policy covered personal injury and the claims fellwithin the definition of personal injury. Pekin Insurance Co.,291 Ill. App. 3d at 890.

On cross-motions for summary judgment, the trial courtgranted summary judgment in favor of Shaw and Hall, holding Pekinhad a duty to defend because the professional services exclusioncreated an ambiguity. Pekin Insurance Co., 291 Ill. App. 3d at891. The trial court said the exclusion did not apply to theunderlying complaint and was not intended to apply to thirdparties other than Shaw's and Hall's clients. Pekin InsuranceCo., 291 Ill. App. 3d at 891. We reversed and entered judgmentin favor of Pekin.

We found the underlying complaint alleged Shaw and Hall wereretained to render professional services, and during the courseof rendering those services, Shaw and Hall caused Caufield tosuffer damages. Pekin Insurance Co., 291 Ill. App. 3d at 896. We also concluded "the applicability of a professional servicesexclusion is not limited to actions brought by the client of theinsured." Pekin Insurance Co., 291 Ill. App. 3d at 896. Whetherthe underlying plaintiff is the client of the insured does notmatter. He may allege injuries falling within the terms of theexclusion. We concluded the clear and unambiguous language ofthe policy relieved Pekin of any duty to defend Shaw and Hall. Pekin Insurance Co., 291 Ill. App. 3d at 897.

In Pekin Insurance Company, we relied on the analysis andholdings in Hurst-Rosche Engineers v. Commercial Union InsuranceCompany, 51 F.3d 1336 (7th Cir. 1995) and Erie Insurance Group v.Alliance Environmental, Inc., 921 F. Supp. 537 (S.D. Ind. 1996).

In Hurst-Rosche Engineers, the insured, an engineering firm,was sued for libel and tortious interference with contract basedon the contents of a letter the firm issued to a party that wasnot its client concerning a performance bond. The insured soughtcoverage under the definition of "personal injury" in its generalliability policy. Hurst-Rosche Engineers, 51 F.3d at 1340. Theinsurer denied coverage based on the professional servicesexclusion, which excluded injuries " 'arising out of therendering or failure to render any professional services ***.' " Hurst-Rosche Engineers, 51 F.3d at 1340.

Applying Illinois law, the Seventh Circuit Court of Appealsconcluded the underlying claims arose from the insured'srendering of professional services. Hurst-Rosche Engineers, 51F.3d at 1343. The court also found the underlying claims fell"squarely within the professional services exclusion." Hurst-Rosche Engineers, 51 F.3d at 1344.

In Erie Insurance Group, a school contracted SearCorporation to remove asbestos from the building. The schoolalso hired the insureds to investigate the source of theasbestos. The insureds reported Sear failed to remove all theasbestos and was negligent in failing to do so. Sear sued theinsureds for tortious interference with a contractualrelationship, defamation, and civil rights violations. Theinsureds submitted the claim to the insurer, and the insurerdenied coverage and filed suit. Erie Insurance Group, 921 F.Supp. at 540.

The issue before the District Court for the SouthernDistrict of Indiana was whether the policy exclusion for damages" 'due to *** any service of a professional nature' " applied tothe underlying suit. Erie Insurance Group, 921 F. Supp. at 541. The court rejected the insureds' contention that the exclusionwas limited to claims brought by the recipient of the insureds'professional services. Erie Insurance Group, 921 F. Supp. at542. The court said the exclusion did "not require privitybetween the insured and the claimant." Erie Insurance Group, 921F. Supp. at 542.

The proper inquiry was "whether the claimant is seeking toimpose liability for acts which were taken in the course ofproviding professional services and which drew upon (or at leastshould have drawn upon) the professional's training, skill,experience, or knowledge." Erie Insurance Group, 921 F. Supp. at 543. Employing this standard, the court concluded theprofessional services exclusion applied to the underlying suit. Erie Insurance Group, 921 F. Supp. at 547.⁽¹⁾

Gould & Ratner contends Pekin Insurance Company does notapply here because the language of the exclusion in this casediffers from the policy language in Pekin Insurance Company. Byemploying "due to" in its professional services exclusion, PekinInsurance Company intended its exclusion to encompass not onlyactions for "(1) rendering or (2) failing to render" professionalservices, but also actions "ancillary to such actions." Here,the exclusion precludes coverage for "claims *** for rendering orfailing to render written or oral professional legal services oradvice ***." Gould & Ratner says Carmell's complaint did notallege claims for rendering or failing to render professionalservices. Rather, the complaint alleges claims "as a result ofwritten statements made by Backman in the course of representinga third party, Apex." (Emphasis added.) (Gould & Ratner's Br. Atp.11.)

Gould & Ratner is arguing about a distinction without adifference. The American Heritage College Dictionary (3d ed.2000) defines both "for" and "due to" as "because of." AmericanHeritage College Dictionary, at 424, 531. Although thedictionary provides many other definitions for the word "for,"none of the ones that may be applicable in this instance supportGould & Ratner's narrow interpretation.⁽²⁾

Gould & Ratner provides no support for its attempt todistinguish the language in Pekin Insurance Company, Hurst-RoscheEngineers, and Erie Insurance Group from the language employedhere. We were unable to find a case that analyzed the scope of aprofessional services exclusion that used the word "for." Giventhe lack of support for Gould & Ratner's theory as well as thedictionary definitions of the terms at issue here, we concludethat in this instance, "for" should be accorded the same meaningas "due to." Dictionary or not, we do not see any difference.

Gould & Ratner contends Vigilant's subsequent change of thelanguage in the exclusion is evidence that "for" as used in thepolicy exclusion is narrower than "due to" and "arising out of." (After Pekin Insurance Company was issued, Vigilant changed thelanguage of its exclusion to exclude claims "arising out of, orin any way related to: professional legal services or advice.")

Gould & Ratner's contention has no bearing on this case. Whether Vigilant changed its Professional Exclusion after PekinInsurance Company was decided does not affect our interpretationof the policy language currently before us. The change couldhave been made for many reasons, none of which has any particularbearing on this dispute.

Because the professional services exclusion in this case isessentially the same as that in Pekin Insurance Company, theholding in Pekin Insurance Company governs here.

In Carmell's complaint, he alleged Backman and Gould &Ratner represented Apex. The alleged defamatory statements werecontained in two letters that were attached to the complaint. The letters, printed on firm letterhead, show that Backman wasresponding to a request for documents and information fromanother attorney representing Carmell. Carmell's breach offiduciary claims arose from Backman's cross-examination ofCarmell during judicial proceedings.

Carmell's complaint alleges Backman committed the acts ofdefamation and breach of fiduciary duty while renderingprofessional services. It has been suggested the exclusionapplies only to situations where a client is suing his or herlawyer for malpractice or some other misconduct. But we believethe exclusion is broader than that. The final words of theProfessional Exclusion are: "whether or not the Insured is actingin the capacity of a lawyer." That phrase takes the exclusionbeyond lawyer-client relationships and to the facts of this case. Backman was not acting as Carmell's lawyer when the allegeddefamatory statements were made. The exclusion clearly embracesBackman's conduct.

Because there was no coverage for the underlying claims, weconclude Vigilant had no duty to defend Gould & Ratner.Timeliness of Declaratory Judgment Action

Gould & Ratner contends Vigilant's action for declaratoryjudgment is untimely as a matter of law because Vigilant did notfile this action until seven months after the underlying suit wassettled and dismissed with prejudice.⁽³⁾ Gould & Ratner relies onthe following passage from Ehlco Liquidating Trust:

"Where an insurer waits to bring its declaratory judgmentaction until after the underlying action had been resolvedby a judgment or a settlement, the insurer's declaratoryjudgment action is untimely as a matter of law." EhlcoLiquidating Trust, 186 Ill. 2d at 157.

Vigilant contends the insurer's duty to file a declaratoryjudgment action is tied to its duty to defend. Conversely, wherethe insurer clearly has no duty to defend, he has no obligationto file a declaratory judgment action before the underlying suitis resolved.

We agree with Vigilant. In Ehlco Liquidating Trust, theinsured tendered the defense of an underlying suit to theinsurer, Wausau. Ehlco Liquidating Trust, 186 Ill. 2d at 134. Wausau did not defend the underlying suit, nor did it promptlyfile a suit for declaratory judgment. Ehlco Liquidating Trust,186 Ill. 2d at 134. Wausau eventually filed a declaratoryjudgment action, four months after the underlying suit wasresolved. Ehlco Liquidating Trust, 186 Ill. 2d at 157. One ofthe issues on appeal with whether the doctrine of estoppel barredWausau from raising policy defenses. Ehlco Liquidating Trust,186 Ill. 2d at 157.

The rule Gould & Ratner relies on in support of itscontention was part of the court's analysis of the application ofthe estoppel doctrine to Wausau. In an attempt to avoid theapplication of the doctrine, Wausau contended it timely filed itsdeclaratory judgment action. Ehlco Liquidating Trust, 186 Ill.2d at 157. The court held the declaratory judgment action filedafter the underlying suit had been resolved was untimely as amatter of law. Ehlco Liquidating Trust, 186 Ill. 2d at 157. Because Wausau had a duty to defend, and neither defended under areservation of rights nor timely filed a declaratory judgmentaction, estoppel applied in that case. Ehlco Liquidating Trust,186 Ill. 2d at 150-59. The court said:

"This estoppel doctrine applies only where an insurer hasbreached its duty to defend. Thus, a court inquires whetherthe insurer had a duty to defend and whether it breachedthat duty. [Citation.] Application of the estoppeldoctrine is not appropriate if the insurer had no duty todefend, or if the insurer's duty to defend was not properlytriggered. These circumstances include where the insurerwas given no opportunity to defend; where there was noinsurance policy in existence; and where, when the policyand the complaint are compared, there clearly was nocoverage or potential for coverage. [Citations.]" EhlcoLiquidating Trust, 186 Ill. 2d at 151.

Here, we do not have to consider whether Vigilant timelyfiled its declaratory judgment action as a matter of law becauseVigilant had no duty to defend and the doctrine of estoppel doesnot apply.

Absent a clear duty to defend, an insurer would have noreason or obligation to file a declaratory judgment before theunderlying suit is resolved. To hold to the contrary would leadto an illogical result: insurers would be required to promptlyfile actions for declaratory judgments to preserve their rightsevery time they are informed of a claim from an insured, evenwhere there clearly is no potential for coverage.

CONCLUSION

We conclude the Professional Exclusion in this case isanalogous to the one we reviewed in Pekin Insurance Company. Following our analysis and holding in Pekin Insurance Company andcomparing the allegations in the underlying complaint to theProfessional Exclusion, Vigilant had no duty to defend Gould &Ratner. Absent a duty to defend, the doctrine of estoppel doesnot apply here, and Vigilant's suit for declaratory judgment wasnot untimely. The trial court did not err in granting summaryjudgment in favor of Vigilant.

We affirm.

SOUTH, P.J., concurs.

HOFFMAN, J., dissents. JUSTICE HOFFMAN, dissenting:

Resolution of this appeal requires the construction of theprofessional services exclusion contained within a generalliability policy of insurance issued by Vigilant Insurance Company(Vigilant). The majority has correctly set forth the generalstandards to be applied in construing an insurance policy. However, I am compelled to dissent because I believe that themajority has misapplied those standards by failing to interpretarguably ambiguous terms in the subject policy in favor ofcoverage. See Outboard Marine Corp. v. Liberty Mutual InsuranceCo., 154 Ill. 2d 90, 119, 607 N.E.2d 1204 (1993).

The majority has accurately set forth the facts of this case. Succinctly put, David Carmell filed a six-count complaint againstthe law firm of Gould & Ratner and one of its partners, JonathanBackman. Two of the counts in Carmell's complaint stated claimsfor defamation against Gould & Ratner by reason of certain lettersBackman wrote in the course of the firm's representation of ApexAutomotive Warehouse, L.P., in a bankruptcy proceeding. Gould &Ratner tendered the defense of the Carmell action to its insurer,Vigilant. Vigilant denied coverage under the general liabilitypolicy it had issued to Gould & Ratner, claiming, inter alia, thatthe defamation claims fell within the scope of a policy exclusionfor professional services. As a consequence, Vigilant refused todefend Gould & Ratner. After settling the Carmell suit, Gould &Ratner filed the instant action against Vigilant for breach ofcontract.

In affirming the summary judgment entered in favor ofVigilant, the majority relies primarily upon the holding in PekinInsurance Co. v. L.J. Shaw & Co., 291 Ill. App. 3d 888, 684 N.E.2d853 (1997) (Pekin) and finds that the defamation actions assertedagainst Gould & Ratner in the Carmell suit fall within theprofessional services exclusion at issue. I disagree. Rather, Ibelieve that the wording of the professional services exclusion inthe Vigilant policy is readily distinguishable from the exclusionat issue in Pekin.

In Pekin, the policy at issue excluded coverage for certaindamages "due to rendering or failure to render any professionalservices." The Pekin court held that the exclusion was applicableto actions brought by one whose damages were caused by theinsured's rendering or failing to render professional services andwas not limited to actions brought by a client of the insured. Pekin, 291 Ill. App. 3d at 894-97. In so holding, the court reliedupon the holdings in Hurst-Rosche Engineers, Inc. v. CommercialUnion Insurance Co., 51 F.3d 1336 (7th Cir. 1995) (Hurst-Rosche)and Erie Insurance Group v. Alliance Environmental, Inc., 921 F.Supp. 537 (S.D. Ind. 1996) (Erie). Pekin, 291 Ill. App. 3d at 892-97. In Hurst-Rosche, the court determined that actions for libeland tortious interference with contract asserted against theinsured engineering firm by a non-client and arising out of aletter which a firm employee wrote in the course of performingduties for a client fell within the scope of a policy provisionwhich excluded coverage for damages "arising out of the renderingor failure to render any professional services ***." Hurst-Rosche,51 F. 3d at 1343-44. In Erie, the policy provision at issueexcluded coverage for damages "due to *** any service of aprofessional nature". Erie, 921 F. Supp. at 542. Citing,inter alia, Hurst-Rosche, the Erie court concluded that claims ofdefamation and tortious interference with contract asserted againstthe insured by a non-client and arising from statements the insuredmade during the course of performing inspection services for aclient fell within the scope of the professional servicesexclusion. Erie, 921 F. Supp. at 541-47. The majority concludesthat the professional services exclusion contained in the policyissued by Vigilant, like the relevant provisions in Pekin, Erie andHurst-Rosche, is not limited to claims or suits brought by a clientof the insured. I disagree.

The professional service exclusions at issue in Pekin, Erieand Hurst-Rosche are framed in terms of injury or damage "due to"(see Pekin, 291 Ill. App. 3d at 890 and Erie, 921 F. Supp at 541)or "arising out of" (see Hurst-Rosche, 51 F.3d 1340) the renditionor failure to render professional services, not in terms of thelegal theory upon which the claim or suit for the damage or injuryis based. See Erie, 921 F. Supp at 542. As a consequence, theseexclusions do not require privity between the insured and theunderlying claimant and are not limited to injury or damagesuffered by a client of the insured professional. See Pekin, 291Ill. App. 3d at 894-97. In contrast, the professional serviceexclusion in the Vigilant policy at issue in this case states thatthe insurance provided does not apply to any "claim or suit"against the insured "for rendering or failing to render written ororal professional legal services or advice ***." I believe thatthe exclusion in the Vigilant policy can reasonably be interpretedas being applicable only to claims or suits brought by a client ofthe insured or a third-party beneficiary of a contract between theinsured and its client, since only a client or a third-partybeneficiary of an attorney-client relationship has a claim, or canmaintain a suit, against an attorney for rendering or failing torender legal services. See Pelham v. Griesheimer, 92 Ill. 2d 13,440 N.E.2d 96 (1982). There is, to my mind, a clear distinctionbetween the wording of the professional service exclusions at issuein Pekin, Erie and Hurst-Rosche and the one at issue in this case. Further, contrary to the declaration of the majority, I believethat the distinction is one with a difference.

In support of its conclusion that the professional serviceexclusion in the instant case is no different in scope than the oneat issue in Pekin, the majority notes that "[t]he American HeritageCollege Dictionary (3d ed. 2000) defines both 'for' and 'due to' as'because of'." I believe, however, that reliance upon dictionarydefinitions in many cases is akin to reliance upon experttestimony: you can always find one to say what you need said.

Webster's Third New International Dictionary (Webster's),which bills itself as "The Definitive Merriam-Webster UnabridgedDictionary of the English Language[,]" defines "for" as "on thisground." Webster's Third New International Dictionary 886 (1981). If one adopts Webster's definition of the word "for" and construesthe professional service exclusion in Vigilant's policy to apply toclaims or suits asserted against its insured on the grounds ofrendering or failing to render professional legal services, Gould& Ratner's assertion that the exclusion is only applicable toclaims or suits brought by a client is no longer easily dismissed.See Pelham, 92 Ill. 2d at 20-25. In any case, I believe that Gould& Ratner's suggested interpretation is a reasonable one.

As our supreme court stated in Outboard Marine Corp. v.Liberty Mutual Insurance Co., 154 Ill. 2d 90, 119, 607 N.E.2d 1204(1993):

"[I]n construing the terms of an insurance policy, thecourt must ascertain the intent of the parties.[Citation.] If the terms of the policy are clear andunambiguous, the court must give them their plain,ordinary, popular meaning. [Citation.] If a term in thepolicy is subject to more than one reasonableinterpretation within the context in which it appears, itis ambiguous. [Citation.] Ambiguous terms are construedstrictly against the drafter of the policy and in favoror coverage. [Citations.] This is especially true withrespect to exclusionary clauses. [Citation.]" (Emphasisadded.)

I believe that, at a minimum, the professional servicesexclusion contained in the Vigilant policy is ambiguous and canreasonably be interpreted as applying only to claims or suits forthe rendition of or failure to render legal services brought by aclient of the insured attorney or a third-party beneficiary of acontract between the insured attorney and a client. Since it isclear from the underlying complaint that Carmell's claims fordefamation against Gould & Ratner were not based upon his status asa client or a third-party beneficiary or based upon any legalservices rendered to him or for his benefit, they do not fallwithin the scope of the professional services exclusion. I would,therefore, reverse the judgment of the circuit court and remandthis matter for further proceedings.

1. The Seventh Circuit Court of Appeals affirmed this decisionin Erie Insurance Group v. Sear Corporation, 102 F.3d 889 (7thCir. 1996), but the scope of the professional services exclusionwas not at issue on appeal. Erie Insurance Group, 102 F.3d at891 n.1.

2. The full definition of "for" is: "1.a. Used to indicate theobject, aim, or purpose of an action or activity: for sale. b.Used to indicate a destination: headed for town. 2. Used toindicate the object of a desire, an intention, or a perception: anose for news. 3.a. Used to indicate the recipient or beneficiaryof an action: lunch for us. b. On behalf of: spoke for themembers. c. In favor of: Were they for the proposal? 4.a. Used toindicate equivalence or equality: ten dollars for a ticket. b.Used to indicate correlation or correspondence: two steps backfor every step forward. 5.a. Used to indicate amount, extent, orduration: walked for miles. b. Used to indicate a specific time:a date for two o'clock. 6.a. As being: take for granted. b. Usedto indicate an actual or implied listing or choosing: For onething, we can't afford it. 7. As a result of; because of: jumpedfor joy. 8. Used to indicate appropriateness or suitability: Itis for the judge to decide. 9. Notwithstanding; despite. 10.a. Asregards; concerning: a stickler for neatness. b. Considering thenature or usual character of: spry for his age. c. In honor of:named for her grandmother. -- conj. Because; since." AmericanHeritage College Dictionary, at 531.

3. Even if Vigilant's action were untimely, the ultimateoutcome of this case would be the same for Gould & Ratner: itwould not be able to recover for breach of contract fromVigilant. The trial court granted summary judgment in favor ofVigilant based not only on Vigilant's action, but also on Gould &Ratner's action. Summary judgment on Gould & Ratner's actionwould stand, regardless of whether Vigilant's action was timely.