author: JUSTICE LINN

text:
    SCOTT W. HOLZRICHTER, Plaintiff-Appellant, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—3372
    Opinion filed June 18, 1992.
    Rehearing denied October 27, 1992.

      Scott W. Holzrichter, of Chicago, appellant pro se.

    Wildman, Harrold, Allen & Dixon, of Chicago (Douglas R. Carlson, Elizabeth A. Sanders, Kirk B. Johnson, and Michael L. Ile, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Scott Holzrichter, was injured in an automobile accident and underwent corrective surgery in 1982. The pending, pro se lawsuit joins nine defendants. The medical malpractice aspect of his lawsuit joins Cook County Hospital and six individual physicians who operated upon him or otherwise treated him in 1982. Plaintiff also sues the law firm he retained to investigate his legal rights and remedies arising from the automobile accident that caused the traumatic injuries for which he underwent the surgeries in question. Plaintiff further joins the American Medical Association (AMA) in a count brought pursuant to the Illinois Antitrust Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 60 — 1 et seq.). The antitrust claim against the AMA was dismissed pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and it is from this dismissal that plaintiff appeals. The trial court held that plaintiff failed to state an antitrust cause of action and also held that any such claim was time-barred under the four-year statute of limitations found in the Act. The court then entered a finding pursuant to Supreme Court Rule 304(a) that there was no just cause to delay enforcement of or appeal from that ruling. 134 Ill. 2d R. 304(a).

On appeal, plaintiff contends that he states an actionable claim against the AMA under the Illinois Antitrust Act. He also asserts broad and wide-ranging challenges to trends or patterns in health care services and costs, which he attributes to the AMA’s control and influence over the marketplace of such services.

Because we agree with the trial court that plaintiff fails to state a legally recognizable cause of action against the AMA, we affirm the dismissal of the AMA from plaintiff’s lawsuit. We also hold that the claim is time-barred.

Background

In January 1982 plaintiff was injured in an automobile accident and spent three months at Cook County Hospital. He underwent a bilateral craniotomy. In his complaint he charges that defendant Cook County and its agents and employees were negligent in losing or failing to restore “one roughly four square-inch cranial-bone tissue specimen from above [his] left ear resulting in a craniectomy being performed.” Plaintiff alleges that this procedure was accomplished without authorization by a guardian and in violation of “the standard required guidelines.” Plaintiff alleges that he was not subsequently informed of the surgery. He also alleges that the attending physician failed to monitor and maintain proper positioning of his left clavicle (broken in the accident), which resulted in improper mending and an attendant impairment of the functioning of his left shoulder.

Plaintiff asserts that he discovered the surgical removal of the cranial bone a month after his release and that subsequent cosmetic cranioplasty to replace the bone resulted in the loss of “proximally located muscle.” Plaintiff alleges that during the first three months of 1982, when he was being treated by several different doctors, some of the doctors told him to wait five years before seeking further remedial procedures. They allegedly told plaintiff that no further medical intervention was needed at the time because natural healing was progressing normally.

In mid-1983, plaintiff retained a law firm, Paul B. Episcope, Ltd. Although a pleading in the record indicates the firm was hired to prosecute an action against the automobile driver involved in the collision, plaintiff also claims the firm was to analyze his medical malpractice claim and take whatever measures necessary to protect his rights. Plaintiff authorized the firm to acquire his medical records, which they obtained in November 1982. In January 1983 plaintiff met with members of the law firm to discuss his case.

Plaintiff alleges that he waited the suggested five years and determined that his physical recovery was unsatisfactory. He then contacted the law firm to add a count based on a theory of fraudulent concealment of malpractice claims. The law firm refused.

Plaintiff asserts that he discovered omissions and falsifications in his medical records, which the law firm had perused years earlier and should have discovered.

On December 22, 1989, plaintiff filed the pending lawsuit, pro se, in three counts. The AMA was joined in July 1990. In the amended complaint filed in 1990, plaintiff claimed that the law firm was negligent in its handling of the case. According to plaintiff, the firm failed to adequately investigate the facts surrounding the medical treatment he received and further failed to inform him in 1983 of the discovery rule and the outside four-year limitations provision applicable to medical malpractice actions. As a result, plaintiff claims that he lost all legal remedies and his ability to pursue the case other than as a pro se plaintiff.

Plaintiff’s claim against the AMA is not easy to state, or even completely understand. In essence, it appears that he accuses the AMA of promulgating or encouraging practices among its member physicians that led to a conspiracy of silence which in turn prevented plaintiff from learning about his possible causes of action against the doctors for medical malpractice. In support of his antitrust claim against the AMA, plaintiff cites a number of means by which he says the AMA restrains trade and “muddle[s] the healthcare marketplace toward taking virtually all control away from the ultimate consumer, i.e., the patient, in restraint of a free market in violation of Sections 3(l)(b) and 3(l)(c) of the Illinois Antitrust Act.” Using plaintiff’s labels and terms, we summarize these challenges as follows:

(1.) Uninformed, vulnerable health care consumers are easy prey for oppressive tactics. Plaintiff asserts that the individual doctor works in a marketplace with a large number of consumers who are often “routinely unenlightened” as to the services they need. One of the five elements of a market conducive to collusion, according to authority cited in plaintiff’s brief, is having “a large number of small, poorly informed buyers.” Presumably, this allows the doctors to set the rates and decide what the patient is to pay for treatment.

(2.) Public policy inveighs against perpetuation of “institutional negligence” in health care. Plaintiff cites a 1928 law review article regarding the tort liability of charities and the role of charities in society. He states that “to the extent the AMA membership is buffered and shielded from free-enterprise market forces is the extent that that institution takes on a semblance of charity status with the responsibilities it ushers.” Apparently, plaintiff is advocating judicial recognition of a public interest theory to hold the AMA responsible for the negligence of its member physicians.

(3.) The AMA is fostering a “trend to specialize” among its members that is responsible for a “reduction in the overall quality of healthcare.” This specialization allows the AMA to “pay short shrift to such public policy concerns.” As we understand plaintiff’s position, one danger of specialization is to curtail the number of general practitioners who may be better able to serve more patients by recognizing a wider range of symptoms and “predisposing causes” of diseases that might not produce illness for years.

(4.) The AMA “historically has controlled the supply of healthcare practitioners and has maintained a chronic shortage — conducive to collusion.” Doctors are being encouraged to specialize as they realize attendant benefits of specialization.

(5.) “The AMA influences the insurance industry’s payment policies.” Plaintiff suggests that insurance carriers may condition payment of certain claims on the patient’s being treated by a board-certified specialist, which further encourages the specialization of physicians.

(6.) “AMA controls its membership’s work environment.” Specialists enjoy such privileges that they may be less accountable to the patient population and therefore less responsive. Plaintiff suggests that specialists are out of touch with the range of health disorders in the community and have less concern with satisfying the patient. According to plaintiff, the AMA is responsible because it controls the governing boards of insurance companies and has an active legislative lobby. As a result there has been little incentive to reduce costs of health care.

(7.) The AMA influences “the price its membership pays for medical malpractice insurance which the Plaintiff suggests had a significant influence in prompting the tacit collusion of its membership against the Plaintiff in the 1982 concealment of Plaintiff’s cause of action while a consumer in the healthcare marketplace.” This argument is directed at a policy of determining malpractice insurance premiums based on medical specialties and geographic locations instead of an experience-based rate for individual doctors. Plaintiff suggests that the AMA has exerted a dominant force in this insurance rating system, which spreads the cost of malpractice insurance equally among its members in a given specialty and geographic area while eliminating an economic incentive that would otherwise reward a member who practiced “quality healthcare.” Apparently, the essence of this problem is to reward the incompetent at the expense of the competent. According to plaintiff, moreover, all physicians have an incentive to protect against malpractice claims brought against any doctor, so as to keep their own premiums lower.

(8.) The AMA’s control over the legislative lobby has resulted in the shortening of statutes of limitations.

Plaintiff’s concern centers on the “insidious” trend of doctors to specialize, which he believes promotes an out-of-touch attitude toward patients, less accountability, and a health care marketplace that is less responsive to patients’ needs. Legislation that shortens the time patients may sue further dilutes the rights of patients by providing a disincentive for doctors to provide quality health care. Doctors will conceal other doctors’ malpractice to keep their own premiums down. In conjunction with the control the AMA has over malpractice insurance ratings, these factors “ultimately minimize or eliminate the effects of economic market forces that would otherwise quash an insidious trend to specialize.”

Opinion

This appeal does not involve the merits of plaintiff’s medical malpractice action. Nor is the claim against the law firm in issue on appeal. Instead, we must determine whether the complaint alleges conduct on the part of the AMA that is actionable under the Illinois Antitrust Act. The timeliness of the antitrust count is also in issue. The trial court, holding that the four-year limitations period barred the action, also rejected plaintiff’s attempt to toll the running of the limitations period based on fraudulent concealment or equitable estoppel.

In granting the motion to dismiss the AMA, the trial court stated that what plaintiff had “basically and essentially [was] a cause of action against the doctors who treated [him].” Whatever deficits there may have been in plaintiff’s medical treatments were attributable to the individual acts and omissions of individual doctors. Similarly, if the defendant law firm rendered negligent legal advice and thereby foreclosed an action under the pertinent statutes of limitation, the law firm’s failure to discover a cause of action cannot be attributed to the AMA. Plaintiff seems to say that the AMA itself fraudulently concealed his cause of action by encouraging a conspiracy among AMA members. Under the conspiracy, which was motivated by a desire to keep medical malpractice premiums down, member doctors supposedly would counsel persons in plaintiff’s position to wait five years before seeking additional treatment.

The complaint lacks any specific factual allegation to substantiate such a supposition, however. Instead of actual facts connecting plaintiff’s injury to specific acts of the AMA, plaintiff engages in a sweeping indictment of the state of health care in this country. The courts are limited, however, to determining whether defined violations of law have occurred under a specific set of facts, on a case-by-case basis.

Under section 3 of the Illinois Antitrust Act it is unlawful for someone to:

“(1) Make any contract with, or engage in any combination or conspiracy with, any other person who is, or but for a prior agreement would be, a competitor of such person:
a. for the purpose or with the effect of fixing, controlling, or maintaining the price or rate charged for any commodity sold or bought by the parties thereto, or the fee charged or paid for any service performed or received by the parties thereto;
b. fixing, controlling, maintaining, limiting, or discontinuing the production, manufacture, mining, sale or supply of any commodity, or the sale or supply of any service, for the purpose or with the effect stated in paragraph a. of subsection (1);
c. allocating or dividing customers, territories, supplies, sales, or markets, functional or geographical, for any commodity or service; or
(2) By contract, combination, or conspiracy with one or more other persons unreasonably restrain trade or commerce; or ***.” Ill. Rev. Stat. 1981, ch. 38, par. 60-3.

Violation of the Act requires a combination or conspiracy between competitors or potential competitors to accomplish an anticompetitive objective. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 521, 544 N.E.2d 733.) Plaintiff does not identify in his pleading the nature of the conspiracy or the persons or entities who entered an illicit agreement to fix or control prices or services. Instead, he asserts in conclusory fashion that members of the AMA, his treating doctors, somehow conspired to keep him in the dark about his actual medical condition. What is lacking, however, are any facts leading to a reasonable inference that the AMA through its membership engaged in collusive practices to commit unlawful acts in restraint of trade. Even if individual doctors concealed information from plaintiff or misled him in an attempt to defeat his malpractice actions, plaintiff does not articulate specific acts, statements or directives from the AMA that would support the contention that the AMA perpetrated or joined in such a conspiracy to harm or control the health care market by concealing malpractice.

At oral argument plaintiff spoke of the AMA’s “policy” regarding malpractice insurance: the decision to allocate malpractice premiums in accordance with geographical districts and areas of expertise, rather than on an individualized basis pegged to a doctor’s personal background and experience. Even assuming such a practice may be a restraint of trade or fit within an antitrust theory, plaintiff does not assert that the AMA actually underwrites insurance policies that individual companies issue to member physicians. The AMA does not provide medical malpractice insurance, and presumably it is the insurers themselves who set the policy and formulate the risks. To the extent the AMA exerts an influence over insurance boards or legislative lobbying, plaintiff does not explain how that is an illegal restraint of trade.

To the extent plaintiff contends that the individual doctors— merely by their common membership in the AMA — colluded or conspired to keep plaintiff ignorant of his condition, the law is to the contrary. (See Federal Prescription Service, Inc. v. American Pharmaceutical Association (D.C. Cir. 1981), 663 F.2d 253, 265, cert. denied (1982), 455 U.S. 928, 71 L. Ed. 2d 472, 102 S. Ct. 1293 (mere membership in an association is not enough to establish participation in a conspiracy with other members of the association under antitrust law).) We are not suggesting that the AMA is immune to antitrust actions, in a proper context. For example, in a case cited by plaintiff, Wilk v. American Medical Association (7th Cir. 1983), 719 F.2d 207, the plaintiffs were chiropractors who alleged that the AMA had suppressed competition by refusing to recognize plaintiffs’ specialty as a legitimate form of health care. The court agreed with plaintiffs that trial error had resulted in the deprivation of their right to a fair trial and the matter was remanded for a new trial. See also Blue Shield v. McCready (1982), 457 U.S. 465, 73 L. Ed. 2d 149, 102 S. Ct. 2540 (Cognizable antitrust claim asserted by plaintiff health care consumer against an insurer and a group of psychiatrists; nature of the conspiracy was to put psychologists out of business by denying insurance claims of patients like plaintiff, whose psychotherapy was performed by psychologists instead of psychiatrists).

Unlike the situation in Wilk or McCready, the pending claim does not involve specific group action in which one segment of the market or competition is favored over another to the detriment of the plaintiff. The AMA’s influence over its members and its lobbying for changes in the law does not automatically equate with antitrust violations. Certainly, legislative lobbying has long been recognized as a legitimate part of the governing process protected under the first amendment rights of citizens to assemble and petition the government. (See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523; United Mine Workers v. Pennington (1965), 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (which collectively gave rise to the “NoerrPennington doctrine”).) Under this doctrine, group solicitation of government action is generally insulated from Federal antitrust liability, even if the influence or action might have anticompetitive effects, because of the first amendment protections. Although the doctrine is not unlimited, the basic right of the AMA to lobby for legislation it deems favorable is constitutionally protected.

As we understand plaintiff’s position, he deplores the growing trend toward specialization and what he perceives as a resulting erosion of the doctor-patient relationship. His conclusory charge that the AMA has fostered such a situation for illegal purposes under the antitrust laws, however, does not withstand analysis. In fact, it is questionable whether plaintiff has the type of standing conferred by the pleading of an “antitrust injury,” or one that harms the public’s interest in free competition by suppressing rather than promoting competition. (See Wellwoods Development Co. v. City of Aurora (N.D. Ill. 1986), 631 F. Supp. 221, affd (7th Cir. 1987), 822 F.2d 1091.) In Wellwoods the court discussed the nature of an antitrust injury and distinguished it from the type of injury that only affects an individual’s lost profits or prospective business opportunities. The plaintiff in that case was a land owner who wished to sell for development parcels surrounding a municipal airport. The plaintiff filed an action against the city, the airport, and airport operators who allegedly combined to prevent him from selling his land to new operators who would open businesses in competition with the existing ones. The court dismissed the action, holding that plaintiff lacked antitrust standing because he merely alleged personal economic harm as a land owner rather than actual injury to competition.

Under section 7(2) of the Illinois Antitrust Act, a person may bring a civil action if he “has been injured in his business or property, or is threatened with such injury, by a violation of Section 3 of this Act.” (Ill. Rev. Stat. 1981, ch. 38, par. 60 — 7(2); see also Associated General Contractors of California, Inc. v. California State Counsel of Carpenters (1983), 459 U.S. 519, 535, 74 L. Ed. 2d 723, 736, 103 S. Ct. 897, 907; Brunswick Corp. v. Pueblo Bowl-O-Matic, Inc. (1977), 429 U.S. 477, 488, 50 L. Ed. 2d 701, 712, 97 S. Ct. 690, 697.) The pleading of a recognized antitrust injury is an essential element of the action and also provides the plaintiff’s requisite standing. In Kling v. St. Paul Fire & Marine Insurance Co. (C.D. Ill. 1986), 626 E Supp. 1285, plaintiff doctors sued an insurer and a hospital whose alleged agreement required all dentists and doctors with staff privileges to carry a minimum of $1 million in medical malpractice coverage. The plaintiffs argued that the agreement would require them to incur increases in premiums and that it would artificially and unfairly increase the cost of health care while diminishing the quality of the care. Those plaintiffs claimed an injury to their own business. In ruling that they failed to state an antitrust injury, however, the trial court noted that the allegations of economic harm affected only the doctors, not competition within the marketplace. The court held that antitrust laws are to protect competition rather than competitors and that the injuries alleged were not the type of harms covered under the antitrust laws.

In the pending case, plaintiff has not stated how his business or property was injured or threatened by specific restraints of trade. Nor has he otherwise shown that his injury resulted from harm to the competitive process itself.

Instead of a true competitive injury to the marketplace, here plaintiff alleges generalized harms to the consumers of patient care, whose ability to seek and receive quality treatment at reasonable costs has been damaged, allegedly, by the AMA’s control over its member doctors and its influence over the legislative process. With respect to his own medical treatments, plaintiff states that he suffered physical deformations; loss of respect by his employer and fellow employees; loss of opportunity for new employment; prejudice and social stigma; and mental pain and suffering. The antitrust injury he sustained, presumably, was the result of the conspiracy of silence fostered by the AMA to deter patients from asserting malpractice claims.

Clearly, plaintiff’s physical and mental suffering, however severe and unfortunate, is not the type of “marketplace” injury normally compensable under the antitrust laws. His damages are for personal injuries and he does not set forth any solid factual link between the doctors’ supposed concealment of plaintiff’s inchoate malpractice claims and specific acts of the AMA as an organization. The public interest in more efficient and less expensive health care is great; however, the AMA’s stance with respect to doctor specialization or malpractice insurance is not legally relevant either to plaintiff’s physical injuries or to his claim that certain of his treating physicians concealed matters that would sustain a medical malpractice action. We conclude that the complaint fails to allege an antitrust injury under the law.

Plaintiff’s broad and general objections to the AMA’s role in lobbying for certain legislation or advocating specialization among its members is not within the courts’ power to address in the abstract, moreover. Plaintiff’s challenges to the system of medical care in this country may be well taken. Apparently, some of his arguments have been advanced in various publications and it is evident that plaintiff has spent a substantial amount of time researching what he believes are glaring, systemic flaws in the medical community’s care and treatment of patients. Such challenges are better directed to the legislature, however, because that body is the one charged with attempting to balance competing social values within the political process through debate and assimilation of diverse information. Presumably, not everyone would agree that doctor specialization is bad. Some might argue that general practitioners lack the time and ability to keep abreast of emerging developments in numerous fields of medicine. We, as a judicial body, lack authority to render an advisory opinion on the good or evil of doctor specialization.

The fact that plaintiff received similar or substantially the same medical advice from different doctors does not necessarily mean, as plaintiff urges, that the AMA conspired among its members to induce him to delay bringing a medical malpractice action. The so-called “conscious parallelism” of different doctors’ opinions might as easily be the result of similar medical judgments based on the physical symptoms and the doctors’ training and experience. Not all injuries can be fully healed and not all surgeries can guarantee restoration of damaged bones and tissue. Therefore, the mere fact that plaintiff’s medical problems persisted after five years does not necessarily mean medical malpractice occurred. But even assuming that the complaint adequately sets out a conspiracy or combination to conceal possible malpractice claims, we fail to see how the mere fact that the doctors were members of the AMA means that the AMA promulgated the policy to conceal malpractice claims. Nothing can be inferred from the complaint beyond vague notions that the AMA promotes “invidious” specialization and lobbies for preferential legislation.

Moreover, there is a serious question raised regarding the timeliness of the action. Under the pertinent section of the Illinois Antitrust Act, civil actions for damages must be brought within four years after the accrual of the cause of action. (Ill. Rev. Stat. 1981, ch. 38, par. 60 — 7(2).) The alleged medical malpractice occurred in 1982, eight years before the AMA was joined in the lawsuit. Anything the treating physicians might have done to discourage plaintiff from filing suit following the initial treatment occurred within months thereafter, or no later than 1983. The AMA’s purported responsibility for fostering a conspiracy of silence directed at this plaintiff, therefore, goes back to 1982 and 1983.

Even if the treating doctors fraudulently concealed or falsified material information from plaintiff, nothing in the complaint specifies any affirmative steps the AMA took to aid and abet the doctors in concealing plaintiff’s cause of action arising out of the medical treatment. (See, e.g., Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 862, 518 N.E.2d 336 (to invoke the fraudulent concealment exception to the statute of limitations, plaintiff must set forth affirmative acts or words of the defendant that prevented plaintiff from earlier discovering the claim or filing it).) At most, plaintiff seems to be saying that the AMA’s influence over insurers and legislators caused economic pressure on the doctors through their fear of rising malpractice insurance premiums, which in turn led to their dissembling conduct toward plaintiff. That is not, however, the type of active and knowing concealment of a particular cause of action that might toll the running of the limitations period.

Plaintiff’s attempt to circumvent the four-year statute of limitations through an equitable estoppel argument is also unavailing. (See, e.g., Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 436, 533 N.E.2d 486.) Even if the individual doctors, as members of the AMA, collusively concealed the true nature of plaintiff’s condition, plaintiff did not in fact rely on what any one or all of the doctors counseled. He sought out more than one doctor’s advice (and it is the similarity of their opinions which led to the conspiracy theory in the first place).

Plaintiff did not wait five years to act, moreover, and therefore did not rely to his detriment on the alleged misrepresentations or omissions of the doctors, let alone any conduct of the AMA. Instead, within months of his injury and treatment he sought a legal evaluation of his rights and possible remedies. Plaintiff discussed his case with lawyers, ordered his medical records, and presumably took an active role in informing his lawyers of the nature of his injuries and subsequent treatments. If the law firm's acts or omissions amounted to legal malpractice, a matter not in issue in this appeal, plaintiff could seek damages against the firm for any provable losses flowing out of that malpractice. If the law firm were found responsible for his losing a valid claim against the doctors, plaintiff would be entitled to recover the value of that claim in damages from the law firm. In any event, we find no facts in the record or legal authority to support a relaxation of the statute of limitations in this case, and any suggestion that the AMA should be equitably estopped from asserting that affirmative defense is meritless.

We conclude that plaintiff fails to plead a recognizable violation of the Antitrust Act and, further, that any such claim he might have is time-barred.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.

      In his brief plaintiff explains the nature of the action as being his attempt to seek damages arising out of the AMA’s “violation of the Illinois Anti-Trust Act, Ill. Rev. Stat. 1981, ch. 38, par. 60 — 1 et seq., by way of AMA's allegedly far-reaching, dendritic presence which side-lines established avenues of societal control ranging from informal peer pressure, to formal peer review, to free-market enterprise forces, and to the legal system’s last-resort overview functions of the healthcare industry. The arrested social control over the AMA’s conduct is to the detriment of the healthcare environment to which Plaintiff’s proximate exposure allegedly caused same substantial injury, and continually threatens the demographic group to which Plaintiff was associated, and is actionable against as a matter of public policy on anti-trust grounds.”


source: Caselaw Access Project

author: JUSTICE McCORMICK

license: Public Domain

text:
    ILLINOIS FOUNDERS INSURANCE COMPANY, Plaintiff-Appellant, v. INEZ SMITH, Indiv. and d/b/a Kitty’s Lounge, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—3187
    Opinion filed June 16, 1992.

      Malek & Wein, P.C., of Chicago (Edward J. Malek and Thomas N. Osran, of counsel), for appellant.
    Linda S. Kagan and Law Offices of James T.J. Keating, P.C., both of Chicago (William G. Berg, Elizabeth S. Davis, and James T.J. Keating, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Illinois Founders Insurance Company, sought a judgment declaring that it had no duty to defend or indemnify defendants, Inez Smith and James Lowe, on two counts of a six-count complaint concerning a homicide in Smith’s bar. The trial court denied the insurance company’s motion for summary judgment and dismissed the complaint for declaratory judgment.

On March 11, 1984, Raymond Belk got into a fight with James Lowe in Kitty’s Lounge, which is owned by Inez Smith. Lowe shot Belk and several days later Belk died from the injury. In a criminal trial Lowe was found not guilty of murder but guilty of voluntary manslaughter.

In 1985 Christine Belk, Raymond Belk’s mother and administratrix of his estate, filed a civil action against Smith and Lowe, naming Raymond, Raymond’s brother Anthony Belk, and Raymond’s children, Adrienne and Raymond Fleming, as additional plaintiffs. Christine Belk alleged in count I of the complaint that Smith gave liquor to Lowe, causing him to become intoxicated, and Lowe shot Raymond Belk in part because of that intoxication, rendering Smith liable for the injuries under the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135). Counts II and III charge Smith and Lowe, respectively, with negligently causing Raymond Belk’s wrongful death; counts IV and V are survival actions, charging Smith and Lowe, respectively, with negligently causing decedent’s suffering prior to his death. Count VI charges both Smith and Lowe with intentionally inflicting emotional distress upon Anthony Belk, who witnessed the shooting.

Smith and Lowe tendered defense of Belk’s lawsuit to plaintiff, from whom Smith had purchased both a liquor liability policy and a general liability policy to cover her business from January 1, 1984, to January 1, 1985. Plaintiff then brought the instant action against Smith, Lowe, Christine Belk and the other named plaintiffs in Belk’s suit, seeking a judgment declaring that plaintiff had no duty to defend or indemnify Smith and Lowe on counts I and VI of Belk’s lawsuit. Plaintiff moved for summary judgment on the complaint, supporting its motion with transcripts of the depositions of Smith and Lowe.

Smith testified in her deposition that although she and Lowe had not exchanged formal vows, she considered him her common-law husband. They had lived together in an apartment above Kitty’s Lounge since 1973. Lowe helped her with many things, including tasks related to running the tavern. She never gave Lowe any money. On March 11, near closing time, a group of about eight young men, including Raymond Belk, ran into the tavern shouting gang slogans of the Vice Lords. Smith heard Belk say he knew Lowe had a gun, and he would “make him use that motherfucker.” Smith took Belk by the arm out of the bar because he was belligerent. Lowe was not responsible for getting people out of the bar if they were creating a disturbance, but he, like some other patrons, sometimes took the responsibility upon himself. Lowe understood that if Smith had any trouble, business or otherwise, “it was all right” for him to help her out. People in the neighborhood knew of their relationship and they knew that if Lowe said someone was not to come into the bar, Smith did not want them in there.

In his deposition Lowe stated that he worked full time for a box manufacturer in 1984. After work on March 10, 1984, Lowe went to Kitty’s Lounge. Sometime after 2 a.m. on March 11, “acting on behalf of M[s.] Smith in the protection of her and her business,” Lowe asked Raymond Belk and some of his companions to leave. Lowe said he was not an employee of Smith or her tavern. He had a handgun, registered in his name through Kitty’s Lounge, which he used to protect Smith and himself from the Vice Lords. After Smith took Raymond Belk out of the tavern, Lowe blocked the door so Belk could not return. Belk said, “[Y]ou’re a gray-headed motherfucker, we got you now” and put his hand in Lowe’s jacket. Lowe then pulled his gun from his jacket and shot Belk.

Plaintiff argued on the summary judgment motion that it had no duty to defend or indemnify Smith under the liquor liability policy for the dramshop action, count I of Belk’s complaint, because that policy excluded coverage for

“loss caused directly or indirectly by any act of the owner or licensee or of any employee of such owner or licensee or anyone acting in their behalf other than the selling or giving of alcoholic liquors upon the premises; *** [and for] loss resulting from the selling or giving *** of alcoholic liquors to any person employed by or acting on behalf of the insured.”

Plaintiff also argued that it had no duty to defend or indemnify Smith and Lowe under the general liability policy for the intentional infliction of emotional distress, count VI of the complaint, because the policy coverage is limited to occurrences, which are defined in the policy as “accident[s] *** neither expected [nor] intended from the standpoint of the insured.” The trial court denied the motions for summary judgment and dismissed the complaint sua sponte.

Plaintiff seeks a declaration that it has neither a duty to defend nor a duty to indemnify Smith and Lowe on counts I and VI of Belk’s complaint. Because the duty to defend is distinct from and broader than the duty to indemnify (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 394, 442 N.E.2d 245, 247), we address the two duties separately.

I

Plaintiff seeks a declaration that it has no duty to defend some of the counts of a complaint containing multiple counts against Smith and Lowe, although it acknowledges that it has a duty to defend them on other counts.

In Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, the complaint filed against the insured included three separate counts. Our supreme court found that one count fell clearly within the insurance coverage, one count could have been within coverage, and one count fell clearly outside the insurance coverage. (Peppers, 64 Ill. 2d at 193, 355 N.E.2d at 28.) The court found that the insurer had a duty to defend the entire lawsuit, stating:

“This duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured, one of which is within the coverage of a policy while the others may not be. [Citations.] The trial court properly held that St. Paul was obligated to defend Peppers.” (Peppers, 64 Ill. 2d at 194, 355 N.E.2d at 28.)

This conclusion is echoed in another case plaintiff cites:

“Even if the complaint alleges conduct that is not covered by the policy (usually intentional tortious conduct), the insurer must defend the suit if the complaint also alleges covered conduct (negligence).” State Farm Fire & Casualty Co. v. Shelton (1988), 176 Ill. App. 3d 858, 861, 531 N.E.2d 913, 915.

Plaintiff has never contended that it has no duty to defend Smith and Lowe on counts II through V of Belk’s complaint. Therefore, under Peppers and Shelton, it must defend the entire lawsuit. Since there appears to be a conflict between plaintiff’s interests and Smith and Lowe’s interests in the Belk suit, Smith and Lowe may hire their own counsel and plaintiff must reimburse them for their cost of representation. Thornton v. Paul (1978), 74 Ill. 2d 132, 152, 384 N.E.2d 335, 343.

II

Although plaintiff must defend Smith and Lowe on all counts of Belk’s lawsuit, plaintiff may not need to indemnify them for all damages Belk recovers. (Shelton, 176 Ill. App. 3d at 862, 531 N.E.2d at 916.) However:

“A declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not then ripe for adjudication. [Citations.] Our supreme court, in Murphy v. Urso (1981), 88 Ill. 2d 444, 455-57, [430 N.E.2d 1079, 1083-85,] has carved out an exception for declaratory judgment actions brought to determine insurance coverage where the issues are separable from those in the underlying action.” Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 156-57, 466 N.E.2d 1091, 1095-96.

Since Smith and Lowe’s liability in the personal injury suit has not yet been determined, the trial court’s dismissal of the complaint for a judgment declaring that plaintiff had no duty to indemnify Smith and Lowe on counts I and VI of Belk’s complaint was proper, under Chicago & North Western, unless the issues determining the duty to indemnify were separable from those to be decided in Belk’s suit.

Murphy v. Urso did not involve an action for a judgment declaring that an insurer had no duty to indemnify its insureds; the question the court addressed was whether the insurer waived its policy defenses to a garnishment suit when the insurer failed to either defend its insured or seek a judgment declaring that it had no duty to defend. The parties are not prejudiced by having the issue of indemnification determined after trial of the underlying suit, when the question of whether the insureds are liable at all has been determined. Although we are not persuaded that Murphy v. Urso creates the exception the court found in Chicago & North Western, we hold in this case only that plaintiff has failed to bring this case within that exception.

Plaintiff contends that the issues involved in determining whether there is coverage for the injuries alleged in counts I and VI of Belk’s complaint are separable from the matters at issue in Belk’s case because the facts needed to establish that there is no coverage are not in dispute and do not determine any crucial issue in Belk’s lawsuit.

First, plaintiff contends that in their depositions Smith and Lowe conceded the facts necessary to show that there is no coverage for potential liability under Belk’s count I, the dramshop action. Smith and Lowe said that Lowe was acting on Smith’s behalf when he told Raymond Belk to leave Kitty’s Lounge, and the liquor liability policy excludes coverage for actions on behalf of the bar or its owner. Defendants maintain that Lowe was not acting “on behalf” of Smith or Kitty’s Lounge, within the meaning of the policy exclusion, when he shot Raymond Belk.

The issue presents a mixed question of law and fact, since the construction of the policy exclusion is a question of law, and the nature of Lowe’s acts and intentions is a question of fact. The court must construe ambiguous provisions of an insurance policy in favor of the insured.

“Ambiguous provisions in which an insurer seeks to limit its liability are construed most strongly against the insurer with the insurer having the obligation to show that the claim falls clearly within the exclusion.” (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 909, 492 N.E.2d 504, 506.)

This court has held that the phrase “arising out of,” in an insurance contract, is “both broad and vague.” (Burlington Northern R.R. Co. v. Illinois Emcasco Insurance Co. (1987), 158 Ill. App. 3d 783, 787, 511 N.E.2d 776, 779.) Similarly, the phrase “on behalf of,” as used in the policy exclusion in this case, is both broad and vague, and therefore, it must be construed narrowly, in favor of the insured.

Lowe and Smith in their depositions said that Lowe was acting to help and protect Smith when he told Belk to leave the bar. He did this because of his personal relationship with her and not because of any agency relationship with either her or her bar. Defendants could argue that the policy exclusion pertains only to actions taken to help the bar, or the owner in her status as owner, and not to actions taken due to a personal relationship with the owner.

When Lowe assented to plaintiffs attorney’s suggestion that he was acting on behalf of Smith when he told Belk to leave, Lowe did not indicate that he intended the phrase in the same sense as it is intended in the policy. Especially in view of the principle that the courts must construe ambiguous provisions in insurance policies in favor of the insured, plaintiffs evidence is not sufficient to establish that Lowe was acting on her behalf within the meaning of the policy exclusion. The trial court apparently so found because it denied the motion for summary judgment.

The trial court also dismissed the complaint for a declaratory judgment because declaratory judgment actions are not proper methods to determine factual issues that are crucial to the insured’s liability in an underlying personal injury action. (Peppers, 64 Ill. 2d at 197, 355 N.E.2d at 30.) Our supreme court applied this rule to dismiss a declaratory judgment action where it found that that action “could possibly” establish some allegations of the underlying complaint and “might preclude” recovery under some of the personal injury plaintiffs theories. Peppers, 64 Ill. 2d at 196-97, 355 N.E.2d at 30.

Plaintiff contends that the issue of whether Smith has coverage for the acts alleged in the dramshop count cannot determine her liability. If the trial court were to find in the declaratory judgment action that Smith had coverage under the liquor liability policy for injuries Lowe caused because Lowe was neither her employee, nor was he acting on her behalf, when he shot Raymond Belk, Christine Belk would be precluded from recovering on the basis of negligence in hiring Lowe, which is presented as a theory for recovery in both counts II and IV of her complaint (and which is presented as an additional separate count in her amended complaint). Since this issue should be decided in the personal injury lawsuit, the trial court properly dismissed the complaint for a judgment declaring that plaintiff had no duty to defend or indemnify Smith and Lowe on the dramshop count of Belk’s complaint.

Plaintiff maintains that the trial court should have granted its motion for a summary judgment declaring that plaintiff had no duty to indemnify Smith and Lowe for any liability they incur under count VI of Belk’s complaint, which charges them with intentional infliction of emotional distress. The general liability policy covers only accidents which are neither intended nor expected from the standpoint of the insured. Plaintiff contends that if either Smith or Lowe is liable, plaintiff cannot be liable because the act would have been found to be intended by the insured, and if neither Smith nor Lowe is liable, then there is no liability for plaintiff to indemnify.

In Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 337-38, 443 N.E.2d 1162, 1166, the court held:

“[A]n employer is liable for an employee’s torts committed within the scope of his employment. *** If an employee commits an intentional tort with the dual purpose of furthering the employer’s interest and venting personal anger, respondeat superior may lie ***.”

Therefore Smith may be liable for Lowe’s intentional tort, if he is found to be her employee as alleged in the complaint, even though his acts were neither expected nor intended from her standpoint.

Moreover, plaintiff’s argument relies solely on the title Belk placed on count VI of her complaint. That count incorporates the many allegations of Smith’s and Lowe’s negligence from the other counts of the complaint, and adds that their acts caused Anthony Belk’s injuries, but it fails to allege that either Smith or Lowe knew or should have known that Raymond Belk’s brother was present before Lowe shot Belk.

In Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235, the trial court dismissed the complaint,,finding that the count for negligent infliction of emotional distress failed to state facts sufficient to support that cause of action. Although the appellate court agreed with this conclusion, it reversed the trial court’s judgment, holding that that count of the complaint stated the facts necessary to support a valid cause of action for negligent entrustment. The court said:

“A motion to dismiss does not lie if a good cause of action is stated, although not the one intended by plaintiff(s).” Rosenberg, 55 Ill. App. 3d at 964, 370 N.E.2d at 1239.

Similarly, count VI of Belk’s complaint may state a valid cause of action other than intentional infliction of emotional distress. The insurer must look to the factual allegations of the complaint, not just to the titles of the counts of the complaint, to determine whether the alleged injuries are covered by the insurance. (See Peppers, 64 Ill. 2d at 193, 355 N.E.2d at 28.) Count VI includes many allegations of Smith’s and Lowe’s negligent acts, and injury caused by those acts may be covered by plaintiff’s insurance. The trial court correctly denied plaintiff’s motion for summary judgment concerning its duty to indemnify Smith and Lowe for their potential liability under count VI of Belk’s complaint.

The central issues which the trial court would need to decide to determine whether plaintiff is liable for Belk’s recovery on count VI are whether this count states a valid cause of action against Smith and whether the injury alleged must have been intended or expected from her point of view for Belk to recover. Since determination of either of these issues would be crucial to Belk’s right to recover on any theory supported by the facts stated in this count, these issues should be decided in the personal injury action rather than this declaratory judgment action. The trial court properly found that the issue of whether plaintiff had a duty to indemnify Smith and Lowe on count VI of Belk’s complaint was not ripe, and therefore it correctly dismissed the complaint for a declaratory judgment.

For the reasons stated above, we find that the trial court properly denied plaintiff’s motion for summary judgment and dismissed the complaint.

Affirmed.

SCARIANO and DiVITO, JJ., concur.