author: JUSTICE PINCHAM

text:
    JOSEPH RISPOLI, Petitioner-Appellant, v. POLICE BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 87—0127
    Opinion filed September 8, 1989.
    Rehearing denied October 19, 1989.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jo Anne Simboli Hodge, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE PINCHAM

delivered the opinion of the court:

Petitioner, Joseph Rispoli, a Chicago police officer, appeals from the trial court’s order which affirmed the City of Chicago Police Board’s (the Board’s) respondents’ decision to sever petitioner from the Chicago police department. The facts are as follows.

In June of 1982, petitioner, Rispoli, a Chicago police department detective, had been a City of Chicago police officer for 25 years, the latter 12 years of which he was assigned to the department’s central auto theft unit. Since October 1980, Rispoli had also been engaged in a secondary employment, as president and sole shareholder of Cardinal Car City, an automobile repair business.

In June of 1982, the Chicago police department undertook an investigation of Rispoli to determine whether he had been involved in using parts from a stolen automobile on another vehicle which Rispoli’s Cardinal Car City auto repair business repaired.

Two investigations were conducted. The first investigation was conducted by Sergeant Curran and Detective Dennis Hayes; both were also assigned to the central auto theft unit and were co-workers of Rispoli. On June 21, 1982, while Rispoli was on annual furlough, he was telephonically notified at his home by Sergeant Curran that he had been named in a criminal investigation. On June 29, 1982, Rispoli appeared with his attorney at the central auto theft unit to meet with Sergeant Curran. At that time, documents relevant to the investigation were tendered to Sergeant Curran by Rispoli.

This initial investigation was pursued from June of 1982 to November or December of 1982 and involved only a 1981 Oldsmobile owned by Lisa Alkazoff which had been repaired at Cardinal Car City, which as stated, was owned by Rispoli. Alkazoff’s 1981 Oldsmobile was allegedly repaired with parts from a 1982 Oldsmobile which had been stolen from Olympic Olds, an automobile sales company. During this initial investigation period, the investigators went to the Cardinal Car City premises and other locations to examine documents. In July of 1982, the investigators also interviewed Cardinal Car City shop foreman, Tad Bakun, and took the Alkazoff 1981 Oldsmobile from the Cardinal Car City premises to the police pound to examine it. When Sergeant Curran removed the panel on the right door, he saw a piece of paper glued to the panel. The paper was a broadcast sheet containing the serial number of the vehicle that the door was to be mounted on. The paper contained a vehicle identification number (VIN) belonging to the 1982 Cutlass Oldsmobile which had been stolen from Olympic Olds.

At the close of this first investigation, Sergeant Curran wrote a report, finding that the allegations that Rispoli had used stolen automobile parts in the repair of automobiles were not sustained. The report was signed by the commander of the central auto theft unit. Thereafter, Sergeant Curran received a written report from the State’s Attorney’s office to the affect that there was no case against Rispoli and the first investigation was closed.

The second investigation began in February of 1982 and was a reinvestigation of Sergeant Curran’s previous investigation of the Alkazoff 1981 Oldsmobile, as well as a broader investigation of allegedly stolen Volkswagen and Mazda automobiles. Sergeant Kark Kurth, an outside investigator from the Internal Affairs Division of the Chicago police department, was assigned to conduct this second investigation. Sergeant Kurth had experience in this field, having himself operated automobile body repair shops.

Sergeant Kurth reexamined the receipts tendered by Rispoli to Sergeant Curran. As a result of that examination, a subpoena was served upon Rispoli for his production of certain additional documents. Rispoli did not produce the documents. The State’s Attorney thereafter filed a rule to show cause why Rispoli should not be held in contempt for his failure to produce the documents. Rispoli appeared before the presiding judge of the criminal division of the circuit court of Cook County, who ordered Rispoli to surrender the relevant business records to the assistant State’s Attorney. Thereafter Rispoli’s attorney turned over three boxes of Cardinal Car City records to the assistant State’s Attorney.

The assistant State’s Attorney’s examination of the records revealed that accurate or authentic documents were missing as to certain transactions; additionally, some of the documents that were turned over were fraudulent and were from companies that did not exist. The assistant State’s Attorney never received certain original checks, particularly a $2,100 check payable to Tad Bakun, hereinafter again mentioned.

Sergeant Kurth also examined the documents Rispoli submitted supposedly relating to Alkazoff’s 1981 Oldsmobile car, but the documents he found were for a diesel engine, while Alkazoff’s 1981 Oldsmobile had a gasoline engine. Sergeant Kurth also found that the Cardinal Car City invoice of Alkazoff’s Oldsmobile did not match the Farmer’s Insurance Company’s estimate of the cost to repair Alkazoff’s car. The Farmer’s Insurance Company repair estimate was $6,500, which included about $3,000 in parts, whereas the Cardinal Car City invoice of the estimate of the Alkazoff’s car repair cost was for $3,200 and did not include the $3,000 for parts.

Sergeant Kurth sent paint samples from Alkazoff’s Oldsmobile repaired by Cardinal Car City to the FBI crime lab and received a report in February of 1983, which stated that a comparison of paint samples from inside Alkazoff’s car and paint samples from the stolen Olympic Oldsmobile revealed that the same paint was used on both, and that the two cars were painted at the same time.

Sergeant Kurth examined the Alkazoff Oldsmobile at the police pound and found, after removing the locks, that the covers on the front door locks had been removed and replaced with ones normally used for body shop work. The chrome on the trunk lock had been removed and replaced with the same kind of lock as on the stolen Olympic Oldsmobile. Additionally, in July and August of 1983, Sergeant Kurth submitted Rispoli’s handwriting exemplars to the State crime lab, from which he received two reports.

Based upon the results of this reinvestigation supervised by Sergeant Kurth, the superintendent of the Chicago police department filed charges before the Chicago Police Board against Rispoli, which sought Rispoli’s discharge from the Chicago police department. A hearing date on said charges was set and the hearing was continued periodically. During the interim, Rispoli stood trial on various criminal charges. The indictment, transcripts and verdicts of that criminal trial were not before the police board and are not included in the record in the instant appeal, with the exception of the testimony that Rispoli was found not guilty of the criminal charges.

Thereafter, on November 13, 1985, the Chicago police department superintendent withdrew the original charges against Rispoli before the police board and filed amended charges, in writing, with notice to Rispoli, who made no objection to the amended charges nor sought a postponement of the hearing thereon.

In the amended charges Rispoli was charged with violating Rule 2, which provided: “Any action or conduct which impedes the Department’s efforts to achieve its policy or goals or brings discredit upon the Department.” More specifically, it was alleged that during the period April 13 to June 9, 1982, Rispoli repaired or caused to be repaired Alkazoff’s 1981 Oldsmobile Cutlass with body parts from the stolen Olympic 1982 Oldsmobile, knowing the auto and the parts to have been stolen. Additionally, Rispoli was charged with buying, receiving, possessing and/or disposing of these stolen component auto parts, or causing those actions to be taken with knowledge that the identification number of the parts had been falsified or removed. Rispoli was also charged with misrepresenting or causing to be misrepresented the Olympic 1982 Oldsmobile identity and that of its component parts, and with failing to keep proper records of the identity of the persons from whom the Olympic 1982 Oldsmobile parts were obtained. It was alleged that during this same period, Rispoli retained or caused to be retained an attorney to procure the release of Alkazoff’s 1981 Oldsmobile from the custody of the Chicago police department auto pound without the knowledge or permission of its owner, Lisa Alkazoff.

Rispoli was also charged with violating Rule 5, “failure to perform any duty,” by failing to report the delivery to and receipt by Cardinal Car City body shop of stolen auto parts from the Olympic 1982 Oldsmobile Cutlass, and that he had a duty so to do. -

Finally, Rispoli was charged with violating Rule 14, “making a false report, written or oral,” in that on or about June 29, 1982, he submitted a false report and falsified documents to Sergeant Curran and Sergeant Kurth.

An evidentiary hearing by a hearing officer of the Board on the amended charges was held. The evidence presented at the hearing established that on March 30, 1982, Lisa Alkazoff’s 1981 Oldsmobile Cutlass was stolen and that when it was recovered on April 9, 1982, its doors, trunk, front end and tires had been removed. Alkazoff had the car towed for repairs to Cardinal Car City, where she spoke with Rispoli. In mid-May of 1982, she picked up the car from the Cardinal Car City repair shop, but she was not satisfied with the repair work. She returned the car and picked it up again around June 8 or 9, but she was still dissatisfied with it. Alkazoff decided to trade the car in at Olympic Oldsmobile. When she took the car to Olympic Oldsmobile, on June 16 to be traded in for another car, two policemen walked in and told her they would have to take her car away because the repaired parts on her car were taken from an Olympic Oldsmobile salesman’s car which had been stolen two weeks earlier. The police towed Alkazoff’s car to the pound and she never saw it again.

It was stipulated at the hearing that Mr. Christopoulous, the owner of Olympic Oldsmobile, was the lawful owner of the 1982 Oldsmobile Cutlass Supreme stolen from his dealership on April 30, 1982. It was further stipulated that when Lisa Alkazoff took her 1981 Oldsmobile Cutlass Supreme to the Olympic Oldsmobile dealership, numerous parts from Olympic’s stolen 1982 Oldsmobile Cutlass Supreme were found on Alkazoff’s 1981 repaired Oldsmobile.

Various Cardinal Car City receipts, purporting to be receipts for legitimate parts, were fraudulent. In particular, it was stipulated that the receipts from different businesses for parts for Alkazoff’s car in two instances were not from those businesses and in the third instance the business was nonexistent. It was agreed that examination of the records of “V & 0 Auto Parts” in Sioux Falls revealed no sale records to Cardinal Car City; that “Western Body Parts” likewise made no sale to Cardinal Car City; and that there was no “Import Salvage” in Saledo, Colorado.

While there was no disagreement at the evidentiary hearing that some person or persons at Cardinal Car City repaired Alkazoff’s car with stolen parts, there was disagreement that Rispoli knew or should have known of the use of stolen auto parts in the repair of Alkazoff’s car.

Alkazoff. testified that she spoke directly to Rispoli and that he told her it would cost $2,000 to repair her car. While Rispoli remembered talking to Alkazoff, he denied telling her the cost to repair her car would be $2,000. Rispoli stated he did not know how long Alkazoff’s car was in the shop or whether there was a problem finding parts. He only recalled Alkazoff calling and complaining to him over a period of time and him telling her that they were waiting for the parts to repair her car.

The negotiations with Farmer’s Insurance Company, the insurer of Alkazoff’s car, were similarly disputed by Rispoli at the hearing before the hearing officer. Scott Sura, an auto claims representative for Farmer’s Insurance Company, testified that he talked to Rispoli about the cost of the repairs to Alkazoff’s 1981 Oldsmobile, that he prepared an estimate, and called Rispoli back. According to Sura, Rispoli agreed to an insurance settlement of $6,500, plus a rental car. Sura stated that he took a check for $6,400, dated April 27, 1981, payable to both Lisa Alkazoff and Cardinal Car City, to Rispoli along with the estimated repair cost. Rispoli denied showing Alkazoff an estimate over Farmer’s for the repairs; Rispoli also flatly denied ever seeing a check for $6,400 from Farmer’s Insurance Company or signing Alkazoff’s name to it. Alkazoff testified that she was unaware of the Farmer’s check until she received the cancelled void statement in the mail, and that while her name was signed on the back of the check, it was not her signature. It was agreed that the check was deposited in Rispoli’s business account.

With respect to Rispoli’s involvement or lack thereof in the actual repair of Alkazoff’s car with stolen parts, the police department’s primary witness was Tad Bakun, the body shop foreman, at Cardinal Car City and who, according to Sergeant Curran, was responsible for ordering and purchasing parts for Cardinal Car City. Bakun testified that when he first saw Alkazoff’s 1981 Oldsmobile, it was totally stripped. He went to various junk yards and used car dealers, but after two or three weeks he had not found the parts needed for a reasonable price. Bakun went to Rispoli and told him that he was having trouble finding the parts. Rispoli told him to find the lowest cost. Bakun then talked to Lorenzo Perez, who also owned a body shop. Two days later, Perez brought the parts needed in a van to Bakun at Cardinal Car City. These parts were not like other dealer-delivered parts, which ordinarily came primer gray with tags. Instead, these parts were blue, the same color as the Alkazoff car. Bakun testified that he thought the parts were possibly salvage, but he admitted that it was very difficult to obtain similar parts in the same color.

Alkazoff’s car was repaired in two or three days. According to Bakun, Rispoli was present during the repair job. He examined the parts in Bakun’s presence. Bakun did not remember Rispoli asking where the parts came from.

The same day the parts arrived, Victor Kowalczyk, who was not employed by Cardinal Car City but was at the premises every day as an associate of the general manager, Richard Gage, and Rispoli, gave Bakun a check for $2,100. Bakun cashed the check at the Fullerton-Pulaski currency exchange, paid Lorenzo Perez $1,200 for the parts and gave Kowalczyk the rest. Kowalczyk gave Bakun back $200.

Bakun left his employment at Cardinal Car City in June of 1982. Two or three weeks later, Kowalczyk came to Bakun’s house to tell him that investigators were coming to the Cardinal Car City repair shop. Bakun went to the Cardinal Car City shop and saw Rispoli. Rispoli told Bakun to turn himself in. Additionally, Rispoli told Bakun to go to Rispoli’s lawyer and follow the lawyer’s advice. Rispoli told Bakun that the attorney would cost him nothing and that Bakun would not have to pay the attorney. Bakun talked to Rispoli’s attorney once, but hired another lawyer and later pled guilty to stealing auto parts, and he received three years’ work release imprisonment.

Two other witnesses testified that they dealt directly with Rispoli in repairing Alkazoff’s Oldsmobile. Patrolman Raymond Kilroy stated that he had secondary employment as a locksmith and, in April of 1982, he went to Cardinal Car City to make up trunk and door locks for Alkazoff’s 1981 Oldsmobile Cutlass. On May 3, 1982, Rispoli told Kilroy that he needed a receipt for the work. Kilroy said he would have to look up his records and find out what and when the work was done, but Rispoli stated he needed a receipt right away, so Kilroy gave Rispoli a blank receipt. Farmer’s Insurance Company’s agent, Scott Sura, testified that he went to Cardinal Car City three or four times to talk to Rispoli. In May of 1982 he went to the shop to look at the Alkazoff car after it had been repaired. He remembered joking with Rispoli about the close color match of the Alkazoff car with the repaired parts and was assured by Rispoli that they were not the same color.

Rispoli denied all involvement in or knowledge of the repair of Alkazoff’s Oldsmobile with stolens parts. According to Rispoli he customarily went to his Cardinal Car City business only on afternoons and Saturdays, after finishing his eight-hour daily shift as a Chicago police officer. According to Rispoli, he generally did not go to the body shop, the cleanup shop, or the detail shop. The time Rispoli spent at his business was devoted to checking inventory, employees and payroll. He never personally supervised the body building of any cars, nor examined his books unless he went to his accountant. The task of maintaining the dealer’s books was carried out by one of three people, the secretary, the general manager, or the bookkeeper.

Regarding Cardinal Car City’s financial transactions, only Rispoli and his wife were on the signature card at the bank. Rispoli testified, however, that employees sent to the bank with a deposit slip or check to cash encountered no difficulty making deposits or withdrawals and that anyone who purported to have Rispoli’s signature could make a withdrawal. It was Rispoli’s normal practice to sign blank checks and give them to Gage so that employees could go to an auction or to any other dealer and buy a vehicle. Rispoli further related that the normal procedure was that when a check was issued on the business’ account, it would come back to the bank. Rispoli’s secretary would then enter it in the journal, and she delivered the records to the accountant. If something was wrong, the accountant would normally call Gage, and if Gage would explain satisfactorily, the inquiry would end. Rispoli never personally examined the books.

Rispoli specifically denied any connection with the repair of Alkazoff’s car with stolen parts. Rispoli did not remember when Alkazoff’s car was received, but did not recall whether he personally negotiated with Farmer’s Insurance Company and did not know whether he showed Alkazoff an estimate from Farmer’s Insurance Company for the repairs. Rispoli did not know how long Alkazoff’s car was in the shop or whether there was a problem finding parts. According to Rispoli it was the job of the body shop foreman, not Rispoli, to order the parts. Rispoli stated he never directly gave Bakun any instructions on Alkazoff’s car, since that was Gage’s job, and that he never personally ordered or bought the parts. He did remember Officer Kilroy doing some locksmith work for him, but he denied Kilroy’s statement that he asked Kilroy for a blank receipt.

Rispoli testified that he had no knowledge of whether a legitimate receipt was received for the parts put on the car. He never questioned anybody regarding the origin of the parts for the repair of Alkazoff’s car. He assumed they were used parts coming from some salvage yard. Rispoli had no knowledge that the receipts for the parts for Alkazoff’s Oldsmobile from various salvage companies were bogus, and it was not his job to find out.

In Rispoli’s experience as a Chicago police department auto theft detective, it was not unusual to get the same color parts for a car only a year old. No one could tell if sheet metal pieces were stolen, since they were not stamped with a serial number. Rispoli stated that he would not have accepted parts that had been cut up, that Bakun never told him that the parts were stolen, and that Rispoli did not know that they were stolen. Rispoli did not know whether he paid Tad Bakun for the parts on Alkazoff’s car. He denied telling Bakun to order stolen parts, but he did remember signing a check for $2,100. At the time he signed the check, it was completely blank as to date, amount and payee; when he signed the check, he signed it in blank and it was not made over to Bakun. Rispoli had not seen any receipt or documentation at the time he signed the check.

Finally, Rispoli denied calling Bakun to tell him the police were looking for him and denied telling him to see his attorney, or that he would pay Bakun’s attorney fees.

The Board found that Rispoli had violated Rule 2, impeding the department’s efforts or bringing discredit upon the department, by his actions in repairing the Alkazoff Oldsmobile Cutlass with stolen parts. The board also found that Rispoli had violated Rule 2 in retaining or causing to be retained an attorney to procure the release of Alkazoff’s Oldsmobile from the custody of the police department without the knowledge or permission of Alkazoff, its owner. Further, the Board found Rispoli guilty of failing to keep records relating to the Alkazoff Oldsmobile. The Board found that Rispoli violated Rule 2 in that he, while assigned to the central auto theft unit and while an owner and shareholder of Cardinal Car City, either knew or should have known that Alkazoff’s 1981 Oldsmobile Cutlass was repaired at Cardinal Car City with parts from a stolen 1982 Oldsmobile Cutlass. Moreover, the Board found that Rispoli remembered talking to Lisa Alkazoff and knew or should have known that an improper act or omission occurred pertaining to the records of the parts and their identification numbers from the Olympic 1982 stolen Oldsmobile. As to Rule 5, failure to perform any duty, the Board found Rispoli guilty of failing to report the delivery and receipt by Cardinal Car City of parts from the stolen 1982 Oldsmobile. The Board found Rispoli not guilty of the charge he violated Rule 14 by making a false report or submitting falsified documents to Sergeant Curran. Based on these findings, the Board found that cause existed for Rispoli’s separation and discharge as a police officer for the Chicago police department.

Rispoli filed a petition for administrative review. After arguments of counsel for the parties the trial court affirmed the decision of the Police Board discharging Rispoli as a police officer and denied Rispoli the relief sought in his complaint.

Before us, petitioner, Rispoli urges for reversal that (1) because the evidentiary hearing of his case was by a hearing officer and not by the Police Board, the Police Board did not see and hear the witnesses; and (2) because the record does not affirmatively establish that the Police Board reviewed or read the transcript of the evidentiary hearing or conferred or counseled with the hearing officer, the Police Board’s guilty findings and decision to discharge Rispoli were not based on the Board’s evaluation of the credibility of the witnesses. Rispoli further contends for reversal that there was insufficient evidence to maintain the guilty findings upon which his discharge from the Chicago police department is predicated. We reject these contentions.

A hearing officer is authorized to conduct the evidentiary hearing in lieu of the Police Board or its members or member. (Ill. Rev. Stat. 1985, ch. 24, par. 10.1-18.1; Chicago Mun. Code 1985, ch. 11, par. 11 — 3.) Rispoli concedes in his brief before this court “that there is no question but that the Board had the right to appoint a hearing officer before the Police Board.” Rispoli persuasively urges, however, that the record “show[s] clearly that the hearing officer did not vote with respect to the discharge of petitioner,” that the record does not establish that the Police Board counseled or conferred with the hearing officer or reviewed the record of the evidentiary hearing in making its findings and decision.

It was held in Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 80, 303 N.E.2d 606:

“It might be well to observe that a full and fair hearing to litigants under the due process clause of the constitution requires that the examiner or referee who hears the evidence, where there is a sharp conflict in the testimony, must in some way participate in the decision or give his conclusions or impressions of such testimony by either written or oral report. The basis for this is that where weight and credibility is [sic] to be given to testimony of witnesses, the litigants are entitled to have the person who conducts the hearing and sees the witnesses to, at least, have his conclusions and impressions reported to the fact finding body.” (Emphasis added.)

Starnawski v. License Appeal Comm’n (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102, held that the commission’s failure to acknowledge the hearing officer’s oral or written report was not a denial of the licensor’s constitutional due process rights. Neither Starnawski nor Southern Illinois Asphalt fully resolves the aforementioned issues raised by Rispoli, i.e., that the record does not establish that the hearing officer participated in the Police Board’s decision, or gave his conclusions and impressions from the testimony he heard by an oral or written report to the Board, or that the members of the Police Board read or reviewed the testimony presented to and heard by the hearing officer, or his report. At the conclusion of the evidentiary hearing the hearing officer announced:

“A copy of the transcript will be prepared and given to each member of the Police Board. They will meet in executive session and render a decision on this matter.”

The written “Findings and Decision” of the Police Board state, inter alia:

“The Police Board of the City of Chicago, as a result of its INVESTIGATION of the charges, finds and determines that: ***.” (Emphasis added.)

The Board’s findings and decision thereafter found and set forth six specific guilty findings that Rispoli violated various stated rules and regulations of the Chicago police department, and also the particular facts and acts committed by Rispoli upon which the guilty findings were based, as alleged in the charges and specifications. These guilty findings, facts and acts are set forth in Appendix A to this opinion. The Board’s findings and decisions also specifically found and set forth five not guilty findings, and the particular alleged facts and acts of the charges and specification that Rispoli did not commit. The Board’s “Findings and Decision” concluded:

“By reason of the findings of fact that the Respondent is guilty herein, cause exists for the separation and discharge of the Respondent, JOSEPH RISPOLI, Star No. 7470, as a Detective in the Department of Police and from the services of the City of Chicago.
IS /_
William H. Hall
Hearing Officer
DECISION
IT IS HEREBY ORDERED that the Respondent, JOSEPH RISPOLI, be and he is hereby separated and discharged from his position as a Detective in the Department of Police and from the services of the City of Chicago.
DATED AT CHICAGO, COUNTY OF COOK, STATE OF ILLINOIS, THIS 8th DAY OF MAY, A.D., 1986.”

The findings and decision were signed by the entire Police Board. The Police Board’s findings and decision preliminary recite that “as a result of its INVESTIGATION of the charges,” the Board finds and determines, etc. The Board’s “Findings and Decision” do not set forth what the investigation entailed. The “Board’s Findings and Decision” do not state that the Board reviewed or read the transcript of the evidentiary hearing, or that the hearing officer counseled or conferred with the Board or participated in the Board’s decision. Significantly, the aforementioned guilty findings are signed exclusively by William H. Hall, the hearing officer, and the guilty findings are not signed or stated to be approved or adopted by the Police Board members. From a diligent search of the record on appeal before us it is uncertain that the Board complied with the aforestated mandate of Southern Illinois Asphalt, i.e., that the hearing officer in some way participated in the Board’s decision, or gave his conclusion and impression of the testimony heard by him in a written or oral report to the Board. If the aforementioned findings, signed by the hearing officer, are construed as such a report, it is unclear and uncertain, indeed it does not affirmatively appear that the Board members read, approved or adopted said findings. Rispoli urges that by reason thereof, the Board findings and decision must be vacated and held for naught and that the trial court therefore erred in affirming said findings and decision and they must therefore be reversed.

It is clear and certain from the record before us that Rispoli waived the issue in the trial court and that he cannot raise the issue for the first time on appeal. (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 143.) Nowhere in Rispoli’s “Petition for Administrative Review” in the trial court (set forth in full in Appendix B) did he allege, contend, urge, suggest, infer or complain that the hearing officer did not participate in the Board’s decision or did not give his conclusion and impression of the testimony he heard in a written or oral report to the Board, or that the Board did not adopt or approve the hearing officer’s findings, or that the Board did not read or review the testimony and the evidence presented to the hearing officer. Rispoli waived the issue in the trial court, and he cannot rely on it for the first time before this court for reversal. Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 143.

We next consider Rispoli’s contention that the evidence is insufficient to sustain the guilty findings. On review by the trial court of the Board’s finding and decision to discharge Rispoli the trial court must first determine whether the Board’s findings of fact were contrary to the manifest weight of evidence; and second, the trial court must decide whether the findings of fact constituted a sufficient basis for discharge. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885.

The findings and conclusions of the Board on questions of fact are to be held prima facie true and correct. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372, 498 N.E.2d 1145, Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 491, 378 N.E.2d 1160.) A trial court, on administrative review, should not reweigh the evidence to determine where the preponderance lies but should limit its inquiry to ascertaining whether the findings and decision of the Board are against the manifest weight of the evidence. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372, 498 N.E.2d 1148; Eastman Kodak Co. v. Fair Employment Practices Comm’n (1981), 86 Ill. 2d 60, 76, 426 N.E.2d 877; Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713.) If the evidence in the record supports the Board’s determination, it should be upheld on review by the trial court. Fagiano v. Police Board (1984), 123 Ill. App. 3d 963, 983, 463 N.E.2d 845.

In considering whether the evidence supports the finding of the Chicago Police Board, on review it likewise is not within the province of this reviewing court to weigh the evidence, but rather, it is also the duty of this reviewing court to ascertain if the findings and decision of the Police Board are against the manifest weight of the evidence (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371; Fagiano v. Police Board (1984), 123 Ill. App. 3d 963, 463 N.E.2d 845; Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389; Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 336 N.E.2d 573), and to determine if the Board’s findings of fact provide a sufficient basis for the Board’s conclusion that cause for discharge exists. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

From our careful and exhaustive review of the record we conclude that the Board’s findings are not against the manifest weight of the evidence. The record abundantly establishes that Rispoli was personally involved in the repair of Alkazoff’s car, knowingly with stolen parts. It was Rispoli whom Alkazoff called several times about her car. It was Rispoli who, according to Alkazoff, told her it would cost about $2,000 to repair the car. Rispoli also personally spoke with the Farmer’s Insurance Company agent, Scott Sura, who testified that he negotiated with Rispoli and gave him the estimate and the $6,400 settlement check. The check was made payable to Lisa Alkazoff and Cardinal Car City and was deposited in Rispoli’s business’ account. Although Alkazoff’s name was endorsed on the back of the check, she testified that she never signed it.

On April 30, 1982, an Oldsmobile was stolen from Olympic Oldsmobile. The following day, May 1, 1982, Rispoli admitted signing a blank check which was ultimately issued to an employee of Cardinal Car City, Tad Bakun, in the amount of $2,100. Cardinal Car City’s cash disbursement journal reflected that $2,100 was spent for parts for Alkazoff’s Oldsmobile.

After Alkazoff’s car was repaired by Rispoli’s Cardinal Car City, during the month of July 1982, an attorney contacted Alkazoff about getting her car out of the police pound where it was being held pending investigation because of the stolen parts on it. During the investigation of the stolen auto parts on Alkazoff’s car, Rispoli, without Alkazoff’s knowledge or permission, contacted the same attorney who contacted Alkazoff, to have her obtain a release of Alkazoff’s car from the police auto pound.

Furthermore, it was Rispoli who submitted receipts to Sergeant Curran that were from businesses that did not exist or which had never sold parts to Cardinal Car City. It was Rispoli who also asked Kilroy for a blank receipt.

The evidence clearly shows that Rispoli should have known that an automobile was being repaired in his business establishment with stolen parts. Here, a Chicago police auto theft detective signed blank checks without looking at the receipts, without checking his bank statement and without determining why the receipts showed that diesel parts were being put on a 1981 Oldsmobile with a gasoline engine. Rispoli contacted an attorney to try to get a car he repaired out of the police pound, without ever telling the owner of the car. It is incredible that a Chicago police auto theft detective, in the auto repair business, would not be suspicious upon receiving almost new automobile salvage parts of exactly the same color, the day after a new car of the same make and color had been stolen. The evidence clearly and convincingly establishes that Rispoli was intimately involved in the illegal activities of his business, or at the very least, he should have known of such illegalities.

Furthermore, Rispoli offered the Board nothing more than a blanket unconvincing denial. He recalled almost nothing about his actions during the relevant period. Rispoli could not recall whether there were problems finding parts for Alkazoff’s car, even though the body shop foreman, Bakun, testified that on several occasions he personally went to Rispoli and told him of the difficulty in finding the parts. Rispoli also could not recall whether he negotiated with the Farmer’s Insurance Company agent, even though agent Scott Sura testified that he went to Cardinal Car City three or four times and talked to Rispoli about the insurance settlement and to deliver the insurance check which was made out to Alkazoff and Cardinal Car City. Additionally, Rispoli denied other matters which other witnesses directly confirmed. Officer Kilroy testified that Rispoli asked him for a blank receipt, which Rispoli denied. Similarly, Alkazoff testified that Rispoli told her the car would cost $2,000 to repair, and Rispoli denied this also. Given the extensive testimony of the many witnesses, the Board was entitled to disbelieve Rispoli’s deficient testimony that he did not know about the use of stolen auto parts on Alkazoff’s car.

Notwithstanding Rispoli’s assertion that Bakun’s testimony must be disbelieved, there is no basis on which to reject the credibility judgments made by the Police Board. It is within the exclusive province of the Board, and not the reviewing court, to resolve the conflicts between witnesses’ testimony. (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 296 N.E.2d 721.) It is particularly within the province of the Board to resolve contradictions presented by the evidence. (Schnulle v. Board of Fire & Police Commissioners (1974), 16 Ill. App. 3d 812, 30 N.E.2d 906.) The Board relied on the improbability of Rispoli’s testimony and quite justifiably found it to be incredulous and unbelievable. We agree with the Board’s assessment, and we therefore will not disturb it.

Rispoli further maintains that the Board reached inconsistent findings. He argues that the Board was inconsistent in finding that he did not make a false report when he reported that he did not know that the parts used to repair Alkazoff's car were stolen, and in also finding that he knew or should have known that Alkazoff’s car was repaired with stolen parts. There were multiple charges against petitioner, most of which were not based on Rispoli’s alleged false report. There is no basis on which the Board’s various findings necessarily preclude each other, particularly the finding that Rispoli should have known the parts were stolen. The charges and the findings were not inextricably interwoven or incapable of separation.

We conclude that the Board correctly found that the findings supported the discharge of Rispoli from the Chicago police department. Cause for discharge has been defined as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and public opinion recognize as good cause for dismissal. (Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389.) A single violation of a police regulation may be sufficient to form a basis for the discharge of an officer. (Moriarity v. Police Board (1972), 7 Ill. App. 3d 978, 289 N.E.2d 32.) A police board has considerable latitude in determining what constitutes cause for discharge, and its decision will not be reversed unless its findings are unrelated to the requirements of the service, or are so trivial as to be unreasonable. (Allman v. Police Board (1986), 140 Ill. App. 3d 1038, 489 N.E.2d 929; Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 336 N.E.2d 573.) In the case at bar, Rispoli’s conduct was neither trivial nor unrelated to what the public has a right to expect from a police officer.

The Board found, and the record supports, that Rispoli knew or should have known that the car entrusted to his business was repaired there with stolen parts. Moreover, the Board found that Rispoli failed to keep the records required by municipal and State law and was responsible for hiring an attorney to procure the release of the auto while it was the subject of a Chicago police department theft investigation. The Board was compelled to conclude that Detective Rispoli had brought discredit upon the Chicago police department.

We affirm the trial court’s order which affirmed the Board’s finding and decision and discharge of petitioner Rispoli as a police officer of the Chicago police department.

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. STELLIOS MARKOGIANNAKIS, a/k/a Stanley Markogiannakis, et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1 — 87—2758, 1 — 87—2789 cons.
    Opinion filed September 8, 1989.

      Hokin & Melber, and John C. Griffin, of Griffin & Gallagher, both of Chicago (Gary S. Hokin, of counsel), for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Margaret J. Orbon, and Helen Marie Ryan, of counsel), for appellee.

       This case was assigned to the fifth division on April 14,1989.

   JUSTICE COCCIA

delivered the opinion of the court:

Insurance Company of Illinois (ICI) brought this declaratory judgment action in the circuit court of Cook County to determine coverage under its homeowner’s policy issued to defendants Stellios Markogiannakis (Markogiannakis) and his wife, Pauline Markogiannakis, for their Chicago home. ICI sought a declaration that it had no obligation to defend or indemnify Markogiannakis under the terms of this policy in connection with a personal injury lawsuit brought against him by Julia Crawley (Crawley), also a defendant in the declaratory action. After the court in the underlying personal injury suit found Markogiannakis liable for negligence in causing Crawley’s injuries, and awarded her $17,000 in damages, the court in the declaratory proceeding granted ICI’s motion for summary judgment. The trial court ruled that by operation of two exclusionary provisions in the policy, ICI had no duty to defend or indemnify Markogiannakis in the Crawley suit, or to reimburse him for the costs of his defense. The court also denied Markogiannakis’ cross-motion for summary judgment. After their motions for reconsideration were denied, the defendants filed this appeal.

The following facts, brought out during the trial of the personal injury suit, also appear in the record of the declaratory action now under review. On March 19, 1984, Markogiannakis, a professional musician, went to a condominium building located at 6151 West Marshall, Chicago Ridge, Illinois, in order to personally collect rent from John Mason. Markogiannakis owned the condominium unit in which Mason resided, but had rented it to Mason on a continuing basis for about three years. After visiting Mason’s apartment and collecting the $350 monthly rent payment in cash, Markogiannakis was walking away from Mason’s unit. Julia Crawley, an officer in the building’s condominium association, called him into her unit, which was across the hall. Because Markogiannakis had apparently not paid required condominium association fees, Crawley had intercepted him in an attempt to collect them. Inside the Crawley apartment, a heated discussion ensued. While there is some dispute as to exactly what was said by Crawley and Markogiannakis, it is clear that Markogiannakis refused to give Crawley any money or payments. Markogiannakis became upset during this discussion, and Crawley was either knocked to the floor by a door in her unit or knocked down by Markogiannakis directly. In either case, she suffered physical injuries as a result of what the trial judge ultimately determined was Markogiannakis’ negligent conduct.

Crawley filed a simple two-count complaint against Markogiannakis in December 1984. In the complaint, she alleged that she was the owner of a certain residential condominium unit at 6151 West Marshall in Chicago Ridge, Illinois; that on or about March 19, 1984, Markogiannakis was present in her condominium unit; and “that at [this] time and place, the defendant was guilty of [certain] acts.” Count I alleged that the defendant “negligently and carelessly pushed open the door which came in contact with [her]” and/or “bumped into [her],” causing her to be knocked to the floor with such force that she was required to seek costly medical care for her injuries. Count II, based on the same occurrence, alleged that defendant’s “intentional and/or willful and wanton acts,” including harsh language and hitting or pushing her, caused her injuries. The complaint contained no statements or allegations relating to a discussion between Crawley and Markogiannakis, or to what the topic of any conversation between them might have been. Nor did it allege or indicate any business-related or other purpose of the defendant in being in Crawley’s unit or building on the day in question. It requested an award of $15,000 in damages.

Markogiannakis notified ICI about the Crawley suit in June 1985. In response, ICI sent Stellios and Pauline Markogiannakis a letter, stating that it was forwarding the matter to its attorneys for consideration, but was also reserving its rights under the policy conditions, “due to intentional act allegations *** and the possibility that [Markogiannakis] w[as] acting in a professional capacity at the time of the incident.” ICI further suggested that Markogiannakis retain his own attorney, “due to the possible conflict.” A follow-up letter of August 29, 1985, advised the insureds that their policy did not provide coverage for the Crawley incident “because Mr. Markogiannakis was acting intentionally and in a professional capacity” at the time. ICI again suggested that Markogiannakis hire his own attorney to defend him in the Crawley litigation. Having refused to defend, ICI took no part in those proceedings. Private attorneys retained by Markogiannakis conducted his defense.

On September 13, 1985, approximately two weeks after sending the August 29 denial letter, ICI filed a complaint for declaratory judgment against Stellios and Pauline Markogiannakis and Julia Crawley. In count I, ICI asked the court to find that Crawley’s personal injury complaint alleged “intentional and/or willful and wanton” conduct which was not covered by the policy issued to Markogiannakis because the policy specifically excluded coverage for medical payments to others for conduct which was “expected or intended” by the insured. Count II alleged that Markogiannakis had been present on the same premises where Crawley’s condominium unit was located “for the purpose of collecting rent from his tenant,” and that “at such time,” Crawley inquired of Markogiannakis “regarding the payment of condominium association fees.” Therefore, because the underlying complaint charged its policyholder with “conduct which arose out of the rental of his condominium unit,” a policy exclusion for bodily injury liability “arising out of the rental or holding for rental of any premises by any insured” relieved ICI of any responsibility to either defend or indemnify Markogiannakis in connection with that lawsuit.

In his answer to ICI’s original complaint (and later in his answer to plaintiff’s amended complaint), Markogiannakis admitted (1) that he was on the same premises where Crawley’s condominium was located for the purpose of collecting rent, and (2) that Crawley inquired of him regarding the payment of condominium association fees. He denied all allegations of noncoverage. His answer also included a request for all costs incurred in defending the Crawley suit, including attorney fees, and a ruling that ICI be required to indemnify him for any judgment awarded to Crawley.

On March 14, 1986, six months after filing the declaratory suit, ICI amended its complaint to add count III, which alleged that another policy exclusion, relating to medical payments to others “arising out of any premises owned or rented to any insured which is not an insured location,” also precluded liability coverage and relieved it of any duty to defend or indemnify. On October 8, 1986, ICI filed a “request for admission of facts and genuineness of documents,” which, inter alia, asked Markogiannakis to make the following admissions within 28 days: (1) that on March 19, 1984, defendant was renting a condominium at 6151 West Marshall, Chicago Ridge, Illinois, to John Mason; (2) that John Mason had rented the condominium referred to for approximately three years prior to March 19, 1984; and (3) that it was customary for the defendant to personally go each month to the condominium referred to for the purpose of collecting rent from his tenant, John Mason. Nowhere in the record is there evidence that Markogiannakis responded to this request within the time limit or thereafter. In the absence of denial or objections, these facts were admitted pursuant to Supreme Court Rule 216(c). 107 Ill. 2d Rules 216(a), (b), (c).

In December 1986, the trial in the underlying Crawley suit concluded. The court found in favor of Crawley on count I (negligence) and in favor of Markogiannakis on count II (willful and wanton and/or intentional conduct). Crawley was awarded $17,000 plus costs. On March 4, 1987, following substitution of attorneys for the Markogiannakis defendants, ICI filed a motion for summary judgment in the declaratory proceeding, stating that it owed no duty to defend the insured because there was no potential for coverage due to policy exclusions for injuries arising out of intentional acts, out of business pursuits or the rental of his condominium, and out of a condominium which he owned which was not an insured location. It followed, argued ICI, that it was not obligated to indemnify Markogiannakis for the judgment entered in favor of Crawley. The trial court granted ICI’s motion, holding that the insurance company had no duty to defend, indemnify, or reimburse Markogiannakis for the costs of his defense in the Crawley action. The court specifically found that the business pursuits and rental provisions, as well as the premises exclusion, applied to the incident at issue, precluding coverage under the policy and any insurer liability under its terms.

Opinion

On appeal, defendants raise the following issues: (1) whether ICI, by its actions, breached its duty to defend Markogiannakis in the Crawley lawsuit and is therefore liable for the full amount of the judgment entered against him; (2) whether the occurrence of March 19, 1984, arose out of business pursuits or the rental or holding for rental of any part of any premises by an insured, within the meaning of the policy exclusion; and (3) whether Julia Crawley’s injuries arose out of any premises owned or rented to any insured which is not an insured location, within the meaning of the policy exclusion. They contend that because ICI failed to secure a declaratory judgment either prior to or during the pendency of the underlying lawsuit, it breached its duty to afford Markogiannakis a defense as required by the policy and by Illinois law and is thereby estopped from raising any exclusionary defenses to indemnification. They also rtiaintain that the policy’s exclusionary provisions were not applicable to the occurrence in the Crawley apartment and that, consequently, Markogiannakis’ negligent conduct was within the policy’s liability coverage.

It is undisputed that the plaintiff issued to Stellios and Pauline Markogiannakis a homeowner’s insurance policy with coverage extending from October 24, 1983, to October 24, 1984, and that this policy was in full force and effect at the time of Crawley’s injuries. The policy contained the following relevant provisions.

“SECTION II — LIABILITY COVERAGES
COVERAGE E-PERSONAL LIABILITY. If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:
a. pay up to our limit of liability for the damages for which the insured is legally liable; and
b. provide a defense at our expense by counsel of our choice. *** Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence [emphasis added] equals our limit of liability.
COVERAGE F-MEDICAL PAYMENTS TO OTHERS
We will pay the necessary medical expenses incurred *** within three years from the date of an accident causing bodily injury. *** This coverage does not apply to you or regular residents of your household *** As to others, this coverage applies only:
b. to a person off the insured location [emphasis added], if the bodily injury:
(2) is caused by the activities of any insured; ***
SECTION II — EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. which is expected or intended by the insured;
b. arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured.
This exclusion does not apply to:
(1) activities which are ordinarily incident to non-business pursuits; ***
d. arising out of any premises owned [sic] or rented to any insured which is not an insured location; ***.”

In the “DEFINITIONS” section of the policy is the following:

“2. ‘business’ includes trade, profession or occupation.
4. ‘insured location’ means:
a. the residence premises [the Markogiannakis home in Chicago];
^ *** ”

Defendants first contend that, even if the occurrence in Julia Crawley’s apartment is excluded from coverage by one or more provisions of the policy, ICI should be estopped from raising these policy defenses, having breached its contractual duty to defend by not securing a declaratory judgment, as opposed to merely filing a declaratory suit, while the underlying tort action was still pending. They maintain that ICI was “strictly obliged” to obtain a “determination” of its liability under the policy either before or during the two-year pendency of the Crawley suit, rather than awaiting judgment in that case before filing its motion for summary judgment. For the following reasons, we find no merit in defendants’ contentions.

In Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700, this court enunciated what remains the general rule:

“In Illinois, a liability insurer in doubt over whether it has a duty to defend its insured, cannot simply stand on the sidelines and wait until the tort action is completed before contesting the question of coverage. In a case where there is potential coverage so that the insurer has a duty to defend, but the insurer believes that it has a valid exclusionary defense, it must either (1) secure a declaratory judgment as to its rights and obligations before or pending trial of the original tort action or (2) defend the tort action under a reservation of rights. [Citations.] Where a duty to defend exists, but the insurer fails to take either course of action, its failure to defend is unjustified, and in a subsequent action by the insured against it, it is barred from disputing the questions of coverage. [Citations.] *** [T]he estoppel referred to is equitable in nature and arises from the doctrine that ‘the insurer has no right to insist that the insured be bound by the provisions of the insurance contract inuring to its benefit, i.e., the ‘Exclusions’ provisions, when it has already breached the contract by violating the provisions inuring to the benefit of the insured, i.e., the defense provisions.’ ” (Reis, 69 Ill. App. 3d at 782-83, quoting Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 197,193 N.E.2d 123,129.)

Reis involved an insurer that refused to defend its insured and also failed to seek, at any time, a declaration that there was no coverage under the policy. This court held that Aetna was estopped from raising the issue of noncoverage in a subsequent declaratory suit by the insured because it had already breached the defense provisions of the policy. Reis, 69 Ill. App. 3d at 783.

While defendants would have us read the general rule as requiring an insurer to secure a final determination of its responsibilities under the policy, prior to judgment in the underlying lawsuit, in order to avoid the harsh result of estoppel, their reliance on the specific language used in Reis is misplaced. First, our research reveals that a long line of Illinois cases have almost uniformly expressed the general rule in terms of an insurer’s obligation to “seek,” to “file,” or to “bring” a declaratory action, rather than to “secure” a declaratory judgment, prior to or pending resolution of the underlying lawsuit. (See, e.g., Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079, 1082; Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 479, 430 N.E.2d 1104, 1107; Thornton v. Paul (1978), 74 Ill. 2d 132, 156, 384 N.E.2d 335, 345; Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp. (1988), 166 Ill. App. 3d 550, 556, 519 N.E.2d 1180, 1182; Reliance Insurance Co. v. Martin (1984), 126 Ill. App. 3d 94, 98, 467 N.E.2d 287, 290; Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 304, 461 N.E.2d 471, 473; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 199, 193 N.E.2d 123, 130.) As the Illinois Supreme Court stated in Clemmons:

“The court will not enforce the insurer’s protections under the policy where the insurer failed to act equitably, that is, failed to defend under a reservation of rights or to bring a declaratory judgment action to determine whether there was coverage under the policy.” Clemmons, 88 Ill. 2d at 479.

A useful synopsis of the general rule was formulated by the Seventh Circuit Court of Appeals in a case interpreting Illinois insurance law:

“[T]hree options are available to a liability insurer requested to defend an insured against claims which the insurer believes exceed policy coverage. The insurer can (1) seek a declaratory judgment regarding its obligations before or pending trial of the underlying action; (2) defend the insured under a reservation of rights, or (3) refuse either to defend or to seek a declaratory judgment at the insurer’s peril that it might later be found to have breached its duty to defend. Once an insurer violates its duty to defend, it is estopped to deny policy coverage in a subsequent lawsuit by the insured or the insured’s assignee.” (Maneikis v. St. Paul Insurance Co. (7th Cir. 1981), 655 F.2d 818, 821.)

In the usual case, an insurer may also elect to concurrently seek a declaratory judgment and defend under a reservation of rights. Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 304, 461 N.E.2d 471, 473; Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 73, 239 N.E.2d 498, 505.

In the case at bar, ICI brought a declaratory action to determine coverage under the policy within one month of its refusal to defend its insured, thereby exercising one of its appropriate options under Illinois law. Furthermore, under a narrow exception to the general rule carved out by our supreme court in Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, ICI would not be estopped from raising its exclusionary defenses in a subsequent suit on the policy even if it had not brought this declaratory action. The complaint filed by Julia Crawley contained allegations of both negligent conduct (not excluded from coverage by the “expected or intended by the insured” provision) and willful and/or intentional conduct (excluded from coverage by that provision). In this type of situation, where some theories of recovery are covered by the policy and others not, a conflict of interest would necessarily arise between insurer and insured if the insurer conducted or controlled the insured’s defense in the personal injury suit. It would be to the insured’s advantage to be found liable for the plaintiff’s injuries based on negligent conduct, which would place responsibility for his financial loss upon the insurer under the terms of the policy. It would be to the insurer’s advantage, however, for liability to be based on intentional acts, thereby relieving it of any duty to pay the judgment. Although the insurer’s duty to provide a defense is established by the allegations in the complaint, serious ethical problems would arise if it actually conducted the defense where a conflict existed. Therefore, in such a case, the insured is entitled to representation by counsel of his own choosing. (Thornton, 74 Ill. 2d at 152; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198-99, 355 N.E.2d 24, 31.) The insurer is neither obligated nor permitted to participate in the defense itself and may decline to do so without making a declaration of rights or seeking a declaratory judgment on coverage. (Thornton, 74 Ill. 2d at 152; Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 475, 430 N.E.2d 1104, 1107.) However, its obligation to provide a defense will be satisfied by reimbursing the insured for the costs of the defense. (Thornton, 74 Ill. 2d at 152.) The Thornton exception to the general rule applies to ICI under the facts of this case.

The court also noted in Thornton that a declaratory judgment on the issue of whether the insured’s actions were negligent or intentional, prior to the resolution of the underlying lawsuit, would decide in a “purely ancillary proceeding” an issue crucial to the insured’s liability and also one on which punitive damages could be assessed. (Thornton, 74 Ill. 2d at 159.) Such prior determination of an ultimate fact or crucial issue upon which the insured’s liability is predicated is premature. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 197, 355 N.E.2d 24, 30.) Likewise, in the instant case, the issue of noncoverage based on Markogiannakis’ allegedly intentional conduct could not have been decided by the trial court in this declaratory action prior to the resolution of the underlying lawsuit. Nonetheless, Markogiannakis maintains that because ICI failed during the course of that litigation to secure a declaration of its rights in relation to the “business pursuits” and “premises” exclusions, which were not crucial issues determinative of his liability for Crawley’s injuries, it breached its duty to defend and is now liable for the full amount of the judgment against him. ICI posits that it followed the more logical course in moving for summary judgment only after a final determination of liability in the personal injury suit. The trial court, finding that ICI had acted properly by filing for declaratory relief, also observed that either party could have presented the issues for resolution at any time after the declaratory suit was brought. Their resolution at this juncture should not “be used as a device to estop the insurance company from protecting itself pursuant to the terms and conditions of the policy.” We agree. Moreover, it is irrelevant, in the context of this appeal, whether or not the trial court could have properly decided one or both of these issues prior to the resolution of the underlying action. This type of inquiry (see, e.g., Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 306-08, 461 N.E.2d 471, 475-76), need not be conducted, as .no prior determination of issues was made. Finding no fault in ICI’s actions, we conclude that ICI has not breached its duty to defend its insured. Consequently, it will not be estopped from raising its exclusionary defenses to coverage under the policy.

Having decided the issue of estoppel in favor of ICI, we next address the two exclusionary provisions which were found to preclude coverage under the policy. The trial court found that ICI had no duty to indemnify Markogiannakis for the judgment against him in the Crawley lawsuit, or to reimburse him for his defense costs, because Crawley’s injuries arose “out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured” and also arose “out of any premises owned or rented to any insured which is not an insured location.” We will examine each of these provisions in turn. Initially, however, we state the general rules of law applicable to our analysis of ICI’s obligations under the policy.

It is the long-standing and well-settled rule in Illinois that the duty to defend and the duty to indemnify are not coextensive, the obligation to defend being broader than the obligation to pay. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150; Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079; International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 522 N.E.2d 758; McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 209 N.E.2d 833.) The duty to indemnify arises only when the insured becomes legally obligated for a judgment in the underlying action, whereas the duty to defend an action against an insured is determined solely by reference to the allegations of the complaint. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150, 163.) Thus, where the duty to defend has been established, "the insurer must defend an action even though it may not ultimately be obligated to indemnify the insured.” (Emphasis in original.) Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150, 163.

The general rules relating to the interpretation of insurance policy exclusions are also well established. Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability ■will be construed most strongly against the insurer and liberally in favor of the insured. The test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean, and the ambiguity will be resolved against the insurer. (Bishop v. Crowther (1981), 101 Ill. App. 3d 933, 940-41, 428 N.E.2d 1021, 1026.) However, if the provisions of the policy are clear and unambiguous there is no need for construction and the provisions will be applied as written. A term may be unambiguous because it has acquired an established legal meaning. Furthermore, all the provisions of the contract, rather than an isolated part, should be read together to interpret it and to determine whether an ambiguity exists. Finally, in applying the rules of interpretation, the words of the policy should be given their plain and ordinary meaning and the court should not search for an ambiguity where there is none. United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4-5, 429 N.E.2d 1203, 1205.

With these principles in mind, we turn to the two exclusionary provisions at issue. If either provision applies, coverage is excluded under the policy and ICI has no obligation to pay Markogiannakis for the judgment against him. The first provision applies to injury or property damage “arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured.” There is sufficient evidence in the record to establish that the insured went to Julia Crawley’s building for the sole purpose of collecting rent from a tenant to whom he had leased his condominium unit for approximately three years; that immediately upon leaving the apartment, he was approached by Crawley, an officer of the condominium association, with whom he discussed his past-due condominium association fees; and that these fees were assessed solely in conjunction with his ownership of the rented unit. During the discussion in Crawley’s apartment, Markogiannakis disputed Crawley’s request for money or fees, and Crawley was caused to fall and was injured as a proximate result of his negligent conduct. For reasons that follow, we hold that the trial court did not err in concluding that Markogiannakis was engaged in a “business pursuit” at the time of this occurrence, that Crawley’s injuries arose “out of business pursuits of any insured or the rental or holding for rental” of a premises by an insured, and that the exception for “activities which are ordinarily incident to non-business pursuits” did not apply.

A business pursuit is a continuous or regular activity, done for the purpose of earning a profit. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 252, 430 N.E.2d 641, 643; Auto-Owners Insurance Co. v. Corrie (1981), 102 Ill. App. 3d 93, 95, 429 N.E.2d 883, 885; Annot., 48 A.L.R.3d 1096, 1099 (1973).) This includes even part-time or supplemental income activities. (Moore, 103 Ill. App. 3d at 252 (paid baby-sitting in one’s home on regular, continuous basis); T.R. Krings v. Safeco Insurance Co. (1981), 6 Kan. App. 2d 391, 394-95, 628 P.2d 1071, 1075 (compensated service on bank board of directors).) Under this definition, recognized in the majority of jurisdictions, including Illinois, Markogiannakis engaged in a business pursuit by renting an investment property over a continuous three-year period for the purpose of obtaining profit.

Moreover, the “Definitions” section of ICI’s homeowner’s policy expressly states that “ ‘business’ includes trade, profession, or occupation.” (Emphasis added.) While the identical language has not been analyzed in Illinois appellate decisions for the purpose of determining coverage, cases from other jurisdictions support an expansive reading to encompass pursuits other than what are normally understood to be trades, professions, or occupations. For example, in Gaynor v. Williams (Fla. App. 1979), 366 So. 2d 1243, the court was asked to decide whether a homeowner’s policy with the same definition of “business” excluded coverage for an accident arising out of the insured’s ownership of an apartment complex from which he derived all the profits, although his primary occupations were banking and insurance. Concluding that the “business pursuits” exclusion was applicable, the court stated:

“[I]t does not matter that the ownership of the apartment house was not Gaynor’s only or main occupation. * * * Since the word ‘includes’ is a term of expansion, *** the definition here must be read to mean that business includes, but is not limited to the ‘trade, profession or occupation’ of the insured. Both the ‘common understanding of the term’ *** and the decided cases show that Gaynor’s ‘business pursuits’ included the activity involved here.” (Emphasis in original.) Gaynor, 366 So. 2d at 1243-44.

Finally, the interpretive rules require us to view the “business pursuits” exclusion in its entirety and in the context of the policy as a whole. We note that there are several other policy provisions, relating to real and personal property losses and additional benefits coverage, which contain “business pursuits” exclusions, indicating that the policy was intended to cover the insured in his capacity as a homeowner, not in any business capacity. Furthermore, the very activity at issue here, the “rental * * * of any premises” by the insured, is excluded with specificity within the same provision excluding “business pursuits.” In light of the foregoing, we conclude that Stellios Markogiannakis was generally engaged in a “business pursuit,” as defined by the policy, at the time of Julia Crawley’s injuries.

Defendants maintain, however, that the negligent conduct which caused Crawley’s injuries, i.e., striking her or causing a door to strike her, was not directly related to any business pursuit of the insured and therefore falls within the exception for “activities which are ordinarily incident to nonbusiness pursuits.” An insured reading the “business pursuits” exclusion and this exception would reasonably assume that it was the nature of the activity which was controlling (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 787, 387 N.E.2d 700, 708), and Illinois courts have interpreted policy coverage under like provisions by looking to the nature of the activity which proximately caused the injury. As the court observed in Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 960, 377 N.E.2d 296, 299, even where an insured is generally engaged in a “business pursuit,” a policy exclusion of “business pursuits *** other than activities therein which are ordinarily incident to nonbusiness pursuits” has been viewed as unclear, requiring an investigation of the particular act or omission complained of in order to determine whether such were “ordinarily incident to non-business pursuits.” As a rule, the policy will cover acts which by their nature are not associated with the insured’s business pursuits, but which are casually related to the business activities. (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 254, 430 N.E.2d 641, 645.) For example, courts have held certain acts of an insured, even when occurring on business premises or during business hours, to be “ordinarily incident to non-business pursuits,” and therefore covered by the policy. See, e.g., State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 230 N.E.2d 513 (impulsive horseplay by repairman causing injury to other workman’s head was “ordinarily incident to non-business pursuits” and covered under policy); Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700 (giving sleeping pills to an intoxicated employee on business premises was covered under policy); Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 414 N.E.2d 765 (attorney throwing lit match into an office wastebasket was not within “business pursuits” exclusion where there was no direct evidence of factual context and it was not determinable whether match was lit for purpose of smoking own pipe, lighting client’s pipe, or burning business records); State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 430 N.E.2d 641 (despite “business pursuit” of mother providing licensed baby-sitting services in home, minor pulling a pan of boiling water off stove was injured as a result of an activity “ordinarily incident to non-business pursuits” where insured would have prepared the same lunch, including hot water for tea, for herself and her own children if injured child had not been present).

However, where the activity in question was a business dispute between partners, co-workers, or persons with an interest in the business enterprise, courts have generally held that the exception for activities “ordinarily incident to non-business pursuits” did not apply, excluding the occurrence from policy coverage. In Bruns v. Foremost Insurance Co. (1975), 27 Ill. App. 3d 50, 325 N.E.2d 815, the insured injured his business partner in an altercation over a business matter. The controlling fact was the business nature of the dispute, not that it had occurred after business hours. Distinguishing the horseplay in State Farm v. MacDonald, the court stated:

“It is more reasonable to characterize an altercation between business partners over business matters as a ‘business pursuit’ than to so characterize the impulsive swinging of [a] mallet ***.” (Bruns, 27 Ill. App. 3d at 53.)

Courts in other jurisdictions have arrived at the same result. For example, in Reliance Insurance Co. v. Fisher (1974), 164 Mont. 278, 284, 285, 521 P.2d 193, 197, a school teacher, also a farmer, struck another teacher during a dispute over disciplining a student during school hours. The Montana Supreme Court held that the incident which gave rise to the plaintiff’s action against the insured came within the “business pursuits” exclusion of the insured’s farmowner’s policy, as the altercation was “clearly connected with and related to school activities” and therefore not an activity ordinarily incident to nonbusiness pursuits. Under facts similar to those of the instant case, a Florida appellate court held that the insured’s son-in-law, who assisted her in the upkeep of an apartment building which she owned, and who injured a tenant in a dispute over return of a key and security deposit, was acting in furtherance of her business interests at the time of the incident. Therefore, the injuries “primarily arose out of a business pursuit and coverage under the policy was excluded.” Otera v. United States Fire Insurance Co. (Fla. App. 1975), 314 So. 2d 208, 209.

Looking to the nature of the activity engaged in by Markogiannakis at the time of Crawley’s injuries, we note that the insured was involved in a heated dispute, related to his business pursuit, with a person who had an interest in one aspect of his control and management of that business pursuit. As the trial court observed, the pursuit of a business enterprise includes control of expenses incident to the profit-making activity. In this case, control of expenses and profits necessarily included payment of association dues required of all condominium owners. This activity was one that the insured would not have performed but for, and which was directly referable to, the rental operation in question. It is well established that the granting or denial of declaratory relief is a matter for the sound discretion of the trial court, whose determination absent abuse will not be disturbed on appeal. (Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 961, 377 N.E.2d 296, 299.) Having reviewed the evidence establishing the nature of the activity in question as a business dispute, and the case law supporting the trial court’s determination, we cannot say that the court abused its discretion in holding that the “business pursuits” exclusion was applicable to the occurrence at issue in this case, that the exception to that exclusion did not apply, and that, consequently, ICI had no duty to indemnify its insured for the judgment against him in the underlying lawsuit.

The trial court also found that another policy provision, excluding personal liability and medical payments coverage for bodily injury “arising out of any premises owned or rented to any insured which is not an insured location,” applied to the occurrence in Crawley’s apartment and operated to preclude coverage. However, our review of the policy and the applicable case law leads us to the opposite conclusion. In Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700, this court stated the general rule as follows:

“[A] homeowner’s liability policy, in the absence of an express provision to the contrary, is not a policy providing limited coverage only applicable on the designated premises; rather it is designed to be a broad type of coverage protecting the insured nearly everywhere. Where, as here, the homeowner’s policy ‘agreed to pay *** all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence’ and contains no other provision describing what coverage is provided, the insurer is liable for any accident for which the insured may be legally liable unless coverage is expressly excluded.” (Reis, 69 Ill. App. 3d at 785-86.)

While the coverages listed in “Section I” of the ICI policy relate to real and personal property losses on or in reference to the residence premises of the insured, the liability coverages of “Section II” represent precisely the broad type of insurance “protecting the insured nearly everywhere,” which was described in Reis. Moreover, the express terms chosen by ICI in drafting the Coverage E and F provisions underscore the insurer’s intent to cover medical payments to others for bodily injury “caused by the activities of any insured *** off the insured location,” as long as none of the expressly enumerated provisions apply.

Thus, whether coverage is excluded on the basis of where the incident took place depends on the interpretation of the provision excluding bodily injury “arising out of any premises owned or rented to any insured which is not an insured location.” Beginning with Reis, Illinois appellate decisions interpreting nearly identical exclusionary provisions support the defendants’ contention that this provision does not apply to the occurrence in Julia Crawley’s apartment. The insurer in Reis argued that because the negligent acts took place on the business premises of the insured, and not at her residence, the designated premises for which her policy was issued, there was no coverage under the policy, despite the inapplicability of the “business pursuits” exclusion. The court held that the “premises” exclusion applied only “to injuries arising out of the premises themselves, presumably such accidents as falling glass,” and was, therefore “clearly inapplicable” to the acts in question, which included offering medication to an intoxicated employee and ordering him to drive home in an intoxicated state. (Reis, 69 Ill. App. 3d 777, 788.) The Appellate Court, Fourth District, arrived at the same conclusion in determining that a match tossed into a wastebasket at the insured’s leased office was not an occurrence caused by a defect arising out of “[any] premises[,] other than [an] insured premises, *** owned, rented or controlled by [any] insured,” and was therefore not excluded from coverage under his homeowner’s policy. (Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 409, 414 N.E.2d 765, 767-68.) Similarly, in Economy Fire & Casualty Co. v. Green (1985), 139 Ill. App. 3d 147, 153, 487 N.E.2d 100, 104, this court followed the reasoning of Reis and Second National Bank, holding that a negligent act of the insured which did not arise out of any defects of premises owned, rented or controlled by the insured was not excluded from coverage by this type of provision. While one fifth district case did find that a premises exclusion applied where a motorist struck a mower attachment used by a farmer mowing along the edge of leased farmland, it was unclear whether the court considered this a defect of the land itself. (State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 220, 389 N.E.2d 668, 670.) In any event, none of the above cases, including Stinnett, lend support to ICI’s argument that Markogiannakis’ negligent conduct in the Crawley apartment falls within the premises exclusion. Not only did Crawley’s injuries not arise from any defect of a premises owned [by] or rented to the insured (e.g., Mason’s apartment); they did not even occur within or directly adjacent to such a premises. Therefore, we find that the provision excluding coverage for bodily injury “arising out of any premises owned or rented to any insured which is not an insured location” did not apply.

The issue of indemnification having been decided in favor of ICI on the basis of the “business pursuits” exclusion, there remains the question of whether the insurer has a duty to pay Markogiannakis’ defense costs. Under the rule of Thornton v. Paul, in a conflict of interest situation, an insurer’s obligation to defend, if one exists, should be satisfied by reimbursing the insured for the costs of his defense. We decide this question in favor of the insured. Our reasons follow.

In Illinois, the existence of a duty to defend is determined by comparing the allegations of the complaint and the terms of the policy; if the complaint contains allegations which bring the claims actually, or even potentially, within the coverage of the policy, the insurer is obligated to defend. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150, 163; Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 476, 430 N.E.2d 1104, 1107; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24, 28.) An insurer may justifiably refuse to defend only where it is apparent from such a comparison that the allegations fail to state any claim within, or potentially within, the scope of policy coverage. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 367, 522 N.E.2d 758, 762; La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 928, 933.) Stated another way, unless the complaint on its face clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. (Tuell v. State Farm Fire & Casualty Co. (1985), 132 Ill. App. 3d 449, 452, 477 N.E.2d 70, 73.) The threshold that the complaint must satisfy to present a claim of potential coverage is low. Where there is doubt as to coverage, it is to be resolved in favor of the insured. (Management Support Associates v. Union Indemnity Insurance Co. (1984), 129 Ill. App. 3d 1089, 1096, 473 N.E.2d 405, 411.) Of course, if the complaint contains allegations which, if true, would exclude coverage under the policy, the insurer has no duty to defend. (Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 816, 386 N.E.2d 529, 537.) However, if an exclusionary clause is relied upon to deny coverage, its applicability must be clear and free from doubt at the time the insurer is requested to defend, because any doubts as to coverage will be resolved in the insured’s favor. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 367, 522 N.E.2d 758, 762.) Moreover, the insurer’s duty to defend is not diminished by its knowledge of extraneous facts which indicate or even demonstrate that the claim alleged in the complaint is, in fact, not covered. (Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 816, 386 N.E.2d 529, 536.) As this court has stated:

“The fact that the insurer is possessed of information, whether obtained from its insured or from other sources, which may show the claim against the insured *** [is] outside the coverage of the policy is, in this regard, of no consequence.” (Associated Indemnity, 68 Ill. App. 3d at 816.)

However, notwithstanding this broad duty to defend, an insurer may establish proof after the resolution of the personal injury action that the insured’s conduct is not covered under the policy and, therefore, the insurance company has no duty to pay the judgment against the insured. State Farm Fire & Casualty Co. v. Shelton (1988), 176 Ill. App. 3d 858, 862, 531 N.E.2d 913, 916.

In accord with these principles of law, we must look to Julia Crawley’s complaint in the underlying personal injury action to determine whether her claim was potentially covered by the insured’s homeowner’s policy at the time ICI was requested to tender a defense. If the allegations of the complaint indicated potential coverage, and no allegation clearly indicated noncoverage, ICI had a duty to defend which must be satisfied by reimbursing the insured for his costs in defending the Crawley lawsuit. Count I of the Crawley complaint alleged negligent conduct potentially covered under the policy. As we have observed, nowhere in the complaint is there an allegation or even a suggestion that Markogiannakis’ conduct took place in a business context or that the encounter between the two parties was in any way related to a business or rental activity of the insured. While it is clear from the statements in ICI’s denial letter that it had knowledge, from another source, of the business context of the altercation, this knowledge is of no consequence in determining whether a duty to defend existed based on the allegations of the complaint. Furthermore, even if Markogiannakis’ purpose in going to Crawley’s building in order to collect rent and/or Crawley’s inquiries about the condominium association fees had been stated or indicated on the face of the complaint, the well-recognized ambiguity of the “ordinarily incident to non-business pursuits” clause in homeowner’s policies would have had to be considered in determining whether it was clearly apparent that her personal injury claim was beyond policy coverage. Because of the necessity for a judicial construction of this clause, in this and similar cases, the applicability of the “business pursuits” exclusion would not have been clear and free from doubt at the time ICI was requested to defend the case. Finally, while the location of the incident is clear from the statement of Crawley’s address and from her description of events inside her apartment, noncoverage would be clearly apparent from these allegations only if the “premises” exclusion had applied to the occurrence.

For the above-stated reasons, we conclude that Julia Crawley’s complaint set forth allegations bringing her claim potentially within the coverage of the policy, and thus established ICI’s duty to defend its insured. According to the rule of Thornton v. Paul, this obligation must be satisfied by reimbursing the insured for his defense costs in the underlying action.

We also recognize that in a case relied upon by ICI, this court recently held that the trial court in a declaratory action did not err in considering factual matters outside the complaint in determining an insurer’s duty to defend where each party submitted factual documents in support of cross-motions for summary judgment, thereby waiving any objection to the consideration of matters outside the complaint, and where these materials shed light on the parties’ knowledge and intent at the time a defense request was tendered. (Charles H. Eichelkraut & Sons, Inc. v. Bituminous Casualty Corp. (1988), 166 Ill. App. 3d 550, 556-57, 519 N.E.2d 1180, 1184-85.) However, the court in EichelJcraut also determined that, even limiting their consideration to the face of the complaint, “the factual allegations were sufficient to lead [the insurer] to conclude that it owed no duty to defend [the insured].” (Eichelkraut, 166 Ill. App. 3d at 557.) Significantly, the court further stated:

“Notwithstanding our holding in this case, we note that in general the question of whether a claim against an insured is potentially covered is so close in so many cases that the benefit of the doubt goes to the insured.” (Eichelkraut, 166 Ill. App. 3d at 557.)

In the instant case, both the allegations themselves and the nature of the occurrence at issue point to the conclusion that there was at least potential coverage based on the allegations in Crawley’s complaint. We therefore see no reason why the long-standing general rule regarding an insured’s duty to defend, and the rule of Thornton v. Paul requiring reimbursement of defense costs, should not apply.

Accordingly, the decision of the trial court, granting summary judgment to the plaintiff and finding that it had no duty to defend, indemnify, or reimburse Stellios Markogiannakis for the costs of his defense is affirmed in part, reversed in part, and remanded with directions. We affirm the finding of the trial court that Julia Crawley’s injury came within the policy exclusion relating to injuries “arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured.” Solely on this basis, ICI has no duty to indemnify its insured for the judgment against him in the underlying tort action. However, ICI has the obligation to reimburse Markogiannakis for the costs of his defense in that lawsuit. This case is remanded to the trial court for a determination of those costs, including attorney fees, and for any further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded, with directions.

MURRAY, P.J., and PINCHAM, J., concur.