*** With the exception of the amended complaint, all the facts, depositions and pleadings in the present case clearlyindicate that the claim was based on an intentional battery by Ben Paul, not on negligence. It is equally clear that theplaintiff's attorney was well aware that the defendant's act was a battery and that he filed the amended complaintcharging negligence solely for the purpose of bringing the action within potential insurance coverage, therebyintending to obligate the insurer to defend after the insurance company had investigated, learned that the conduct wasa battery, and refused. There is no explanation for the procedures followed other than the desire of plaintiff's counselto maneuver the insurer into a position where it would be obligated to pay the judgment and estopped from raising thedefense of noncoverage." Thornton, 74 Ill. 2d at 144-46.

Based on the unsupported allegation of negligence in the amended complaint, and in the face of the uncontested evidence ofintentional battery, the court held that the insurer "was obligated to provide a defense of the amended complaint to theinsureds and that this obligation must be satisfied by reimbursing the insureds for the costs thereof." Thornton, 74 Ill. 2d at162. The court explained that, due to their conflicting interests, "the insurer should not be *** permitted to participate in thedefense of the case. Its obligation to provide a defense should be satisfied by reimbursing the insured for the costs of thedefense." Thornton, 74 Ill. 2d at 152. In the suit to determine the duty to indemnify, to begin after conclusion of theunderlying civil suit, the criminal conviction would constitute prima facie evidence that Paul committed a battery.

Here, as in Thornton, the court had reason to believe that Vinicky alleged negligence solely to bring her suit within theambit of Savickas' insurance coverage. Here, too, the defendant had a criminal conviction and all depositions and othertestimony showed he expected injury to result from his intentional acts. Under Thornton, these facts cannot relieve theinsurer of the duty to defend. As the court said in Management Support Associates v. Union Indemnity Insurance Co., 129Ill. App. 3d 1089, 1096, 473 N.E.2d 405 (1984), "the insurer can safely and justifiably refuse to defend only when theallegations clearly show on their face that the claim is beyond policy coverage." The allegation of negligence in Vinicky'scomplaint, like the allegation in Thornton, triggered the duty to defend, and the complaint on its face does not here allegeconflicting facts sufficient to relieve the insurer of that duty. Under Peppers, the court should not yet decide the duty toindemnify.

The trial court relied on Allstate Insurance Co. v. Carioto, 194 Ill. App. 3d 767, 551 N.E.2d 382 (1990), in finding no dutyto defend or indemnify. In that case the court said that Peppers and Thornton "recognize that in instances where bona fidecontroversies arise over the issue of negligence versus intentional conduct, declaratory judgment actions are generallyinappropriate." Carioto, 194 Ill. App. 3d at 774. The court then found that all of the evidence, including depositions and acriminal conviction, showed that the insured acted intentionally, and only the complaint against the insured allegednegligence. Because the court found no bona fide controversy concerning intent, it affirmed the trial court's decision togrant Allstate a judgment declaring it had no duty to defend its insured.

Our supreme court did not limit the application of Thornton to cases involving bona fide controversies over issues neededto determine coverage. In Thornton itself the court recognized the parties had no bona fide dispute, and the plaintiff allegednegligence solely to bring the cause of action within the insurance coverage. The court stressed that all of the evidence,including depositions and the criminal conviction, showed the insured acted intentionally; against that evidence, theunderlying complaint alleged negligence. That allegation required the insurer to defend.

We cannot reconcile Carioto with Thornton. In Carioto the court effectively sought to overrule Thornton, as the limitationto bona fide controversies would have required a result on the facts of Thornton contrary to the result our supreme courtreached. Under Thornton, the issue of the pleader's good faith, like all other issues in the underlying suit, must be resolvedin that suit and not in the ancillary declaratory judgment proceedings.

"[O]nce the supreme court has declared the law on any point, we may not refuse to follow it, no matter what our personalviews might be, because the supreme court alone has the power to overrule or modify its decisions." Clark Oil & RefiningCorp. v. Johnson, 154 Ill. App. 3d 773, 780, 506 N.E.2d 1362 (1987). The court exceeded its authority when it sought tomodify, and effectively overrule, Thornton. Accordingly, we decline to follow Carioto.

In Carioto this division emphasized the rare facts of that case. There, the insured judicially admitted, in the context of thepersonal injury suit, that he acted intentionally, and he specifically repeated the admission after an attorney expresslywarned that the admission would negate his insurance coverage. Here, by contrast, we have no similar admissions in thecontext of the personal injury suit. If our supreme court should fashion a modification of Thornton to accommodate theresult in Carioto, we still would need to reverse the trial court's decision here. Unless our supreme court overrulesThornton, American Family has the duty to pay for Savickas' defense of Vinicky's lawsuit.

American Family argues that our supreme court has already implicitly overruled Thornton, at least on the issue of theestoppel effect of a criminal conviction, in Talarico v. Dunlap, 177 Ill. 2d 185, 685 N.E.2d 325 (1997), and In re Scott, 98Ill. 2d 9, 455 N.E.2d 81 (1983). In Scott, an attorney faced suspension from practice following a conviction for filing falsetax returns. The attorney conceded that the conviction constituted conclusive evidence, and not merely prima facieevidence, of his guilt, for purposes of the disciplinary proceedings. Scott, 98 Ill. 2d at 13. Thus, our supreme court did notneed to decide whether the conviction collaterally estopped the attorney from relitigating the issues that arose in thecriminal case. Moreover, the court had given criminal convictions conclusive effect for disciplinary proceedings long beforeit decided Thornton. See In re Teitelbaum, 13 Ill. 2d 586, 588, 150 N.E.2d 873 (1958). Scott does not overrule Thorntonany more than Thornton overruled Teitelbaum. Although criminal convictions are conclusive evidence of guilt for attorneydisciplinary proceedings, they constitute only prima facie evidence for personal injury suits like the one Thornton broughtagainst Paul and the one Vinicky brought against Savickas.

In Talarico the plaintiff sued his doctor for prescribing drugs that caused him to commit a crime. The doctor sought to usethe criminal conviction of the plaintiff defensively, to collaterally estop the plaintiff from litigating any issue he could haveraised in the criminal case concerning the effect of the drugs on his actions. The court recited minimal standards for theapplication of defensive collateral estoppel and found even those minimal requirements were not met. Therefore, the courtheld that the criminal conviction did not estop the plaintiff from litigating the effect of the drugs. Talarico, 177 Ill. 2d at198.

Although the court allowed that criminal convictions might have conclusive effect in some civil actions, and the courtdiscussed some minimal criteria for defensive estoppel, the court did not purport to establish any standards that wouldrequire application of collateral estoppel. The court did not mention Thornton or the conclusion it reached there that aninsurer may not use a criminal conviction of its insured offensively to collaterally estop the insured from relitigating, in asubsequent civil action, issues that may have arisen in the criminal trial. As Talarico involved only defensive collateralestoppel, and the court has emphasized the need for greater care in applying offensive collateral estoppel (see Van Milliganv. Board of Fire & Police Commissioners, 158 Ill. 2d 85, 95, 630 N.E.2d 830 (1994)), we do not find that the decision inTalarico effectively overruled Thornton. If our supreme court chooses to overrule Thornton, it will need to do so moreclearly.

American Family asserts that Thornton applies only to cases in which the declaratory judgment would determine an issuethat will be crucial to determination of the underlying case. But here the trial court's declaratory judgment established thatSavickas shot Thomas Vinicky, and when he did so he expected to injure him. These issues may affect proof of whetherSavickas proximately caused the death. See Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 738, 666 N.E.2d 704(1996).

The evidence apart from the complaint here shows no real dispute over the issue of proximate cause, but the evidence apartfrom the complaint in Thornton also showed no real dispute over Paul's intent. Such evidence does not alter the duty todefend. "A court may look beyond the allegations in the complaint only if the coverage issue involves such ancillarymatters as whether the insured paid the premiums or whether he is the proper insured under the policy." BituminousCasualty Corp. v. Fulkerson, 212 Ill. App. 3d 556, 562, 571 N.E.2d 256 (1991). This case does not involve such issuesunrelated to civil liability. See Peppers, 64 Ill. 2d at 193.

American Family, like the insurer in Thornton, seeks to avoid paying for the defense of a lawsuit where the evidenceindicates that the plaintiff raised a negligence claim solely to bring the cause of action within the insurance coverage.American Family seeks dismissal of the negligence counts from Vinicky's suit against Savickas, or at least preclusion oflitigation concerning Savickas' intentions or expectations. In effect American Family seeks rulings by which "the order andburden of proof would be oriented to and dictated by the declaratory judgment action and not by the primary litigation, thepersonal injury suit." Thornton, 74 Ill. 2d at 159. Our supreme court in Thornton precluded such reorientation of theproceedings in the personal injury suit to meet the insurer's needs. Where, in a lawsuit against an insured, the insurer'sinterests conflict with the interests of the insured, the insured must retain control over the lawsuit. Peppers, 64 Ill. 2d at 199.

Finally, American Family contends that the allegation that Savickas "[n]egligently shot" Thomas Vinicky is not sufficientlyfactual to support a duty to defend. American Family did not raise this argument in the trial court. At most, the argumentpresents grounds for a remand so that Vinicky can make more definite the factual allegations of her complaint. See Conwayv. Conners, 101 Ill. App. 3d 121, 130, 427 N.E.2d 1015 (1981). This belated contention cannot support the trial court'sdecision here.

Moreover, American Family raises no objection to the allegation that Savickas "[n]egligently assessed a need for selfdefense." That allegation creates a duty to defend because the fact that Savickas negligently assessed the need for selfdefense does not entail a finding that he expected his acts to harm Thomas. In West American Insurance Co. v. Vago, 197Ill. App. 3d 131, 137, 553 N.E.2d 1181 (1990), and State Farm Fire & Casualty Co. v. Hatherley, 250 Ill. App. 3d 333,337-38, 622 N.E.2d 139 (1993), the court emphasized that the complaints alleged facts that proved the insurance coveragedid not apply. Here, the complaint lacks such allegations. From the face of the complaint we can draw no conclusions aboutSavickas' expectations. Therefore, American Family has a duty to pay for Savickas' defense of the lawsuit. See Cowan v.Insurance Co. of North America, 22 Ill. App. 3d 883, 896-97, 318 N.E.2d 315 (1974).

We note that by objecting to the factual insufficiency of the allegations, American Family would require Vinicky to makeher complaint against Savickas more specific. This, too, appears to be an effort to control an aspect of Savickas' defense, forwhich American Family is paying, to minimize American Family's costs. If the court could find no duty to defend becausethe underlying complaint lacked sufficient factual specificity, the duty to defend would "hinge exclusively on thedraftsmanship skills or whims of the plaintiff in the underlying action." Western Casualty & Surety Co. v. Adams County,179 Ill. App. 3d 752, 756, 534 N.E.2d 1066 (1989). Illinois courts have held that the duty to defend should not depend onsuch chances. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 193 Ill. App. 3d 1087, 1092, 550 N.E.2d1032 (1989), aff'd 144 Ill. 2d 64, 578 N.E.2d 926 (1991).

We see no meaningful distinction between this case and Thornton. Accordingly, we find that American Family has a duty topay for defense of Savickas, and the trial court should consider the duty to indemnify only after resolution of the caseVinicky brought against Savickas. The judgment of the trial court is reversed and the cause is remanded for proceedings inaccord with this opinion.

Reversed and remanded.

TULLY, J., concurs.

RAKOWSKI, J., specially concurs.

JUSTICE RAKOWSKI, dissenting:

Because the facts of this case show as a matter of law that Savickas expected bodily injury to occur, the trial court properlygranted summary judgment in favor of American Family and against Savickas and the estate of Vinicky.

Savickas and several friends were drinking at the New Gold Coast Tavern. An argument ensued between Savickas andanother member of the group. The bar owner, Robert Walensky, asked Savickas to leave and escorted him to the door.Savickas initially left, but came back and began to bang on the window of the tavern. Walensky then grabbed a baseball batkept behind the bar and ran out the front door. He watched as Savickas walked away. The decedent, Thomas Vinicky, whooccasionally cleaned and stocked the tavern for Walensky, got up from his barstool and said "I'm getting the hell out ofhere." Vinicky was not part of Savickas' group, nor did he attempt to assist Walensky in expelling Savickas from the bar.Only two people testified as to what happened next.

Walensky watched from the front door of the tavern and could see Savickas and Vinicky facing each other. Vinicky askedSavickas "What's the matter? Why are you doing all this?" Savickas then pulled a gun from his pocket and shot Vinicky inhis chest as he was stepping backward.

Savickas testified that, after banging on the window a second time, he was walking away when he saw Vinicky. Accordingto Savickas, Vinicky called him an obscenity, threatened him, and appeared to go for a gun. Savickas panicked, grabbed hisgun, and shot Vinicky. The criminal trial transcript reflects the following: