SIXTH DIVISION
MARCH 28, 2003

JUSTICE TULLY delivered the opinion of the court:

Plaintiff, HPF, L.L.C. (HPF), filed a declaratory judgment action against its generalliability insurance company defendant, General Star Indemnity Company (General Star), todetermine the rights of the parties under a commercial general liability policy (CGL) issued byGeneral Star to HPF. HPF sought a declaration that General Star was obligated to defend andindemnify HPF for costs and attorney fees incurred in defending an action filed against HPF byRobert L. Day (Day), in the superior court of San Francisco County, California. The partiescross-moved for summary judgment. Summary judgment was granted in favor of HPF and thetrial court awarded HPF damages in the amount of $317,779.04, plus post-judgment interest.

On appeal, General Star contends that the trial court erred in granting summary judgmentin favor of HPF because the underlying Day action did not allege and did not seek damages forbodily injury. General Star further contends that the California statutes under which Day sueddid not provide a remedy for bodily injury.

The following facts are relevant to this appeal. HPF is a distributor of herbal dietarysupplement products. In 1997, HPF's product line included two herbal combinations calledHerbal Phen-Fen and Herbal Phen-Fen Stage 2.

On November 19, 1997, Robert Day filed a lawsuit against HPF in the superior court ofSan Francisco County, California. Day's lawsuit was brought pursuant to a California statutewhich permits a plaintiff to sue on behalf of the general public. The Day lawsuit alleged thatHPF violated various California statutes through the unlawful labeling, distribution andpromotion of Herbal Phen-Fen and Herbal Phen-Fen Stage 2 as treatments for obesity.⁽¹⁾ Dayalleged that in a letter dated November 5, 1997, the Food and Drug Administration informedHPF that because HPF was representing its products as a "natural alternative" to the prescriptiondrugs commonly known as Fen-Phen, HPF was representing its products as treatments forobesity. As such, the HPF products are considered drugs as defined in the Federal Food, Drugand Cosmetic Act and may not legally be marketed in the United States without approved newdrug applications.

The Day complaint alleged that HPF violated the California statutes in the followingways: (1) HPF misbranded Herbal Phen-Fen and Herbal Phen-Fen Stage 2 because their labelingwas false and misleading and failed to bear adequate directions for use; (2) HPF unlawfullymarketed new drugs which had not been approved by the FDA; (3) HPF's labeling of its productswas false and misleading as it suggested that the products were recognized as safe and effectivefor the intended use when they were not; (4) HPF made assertions of fact which were false whenit represented that its products were effective and safe and posed no health risks; (5) HPFmisrepresented the quality and nature of its products and failed to disclose that these productshad not been proven safe and effective for the treatment of obesity. The Day complaint soughtequitable relief in the form of an injunction against HPF to (1) restrain HPF from selling anddistributing their Herbal Phen-Fen products in California; (2) disgorge all monies acquired; (3)restrain HPF from continuing to misrepresent its Herbal Phen-Fen products; (4) force HPF toundertake a public information campaign to warn and inform consumers that HPF Herbal Phen-Fen products have not been proven either safe or effective in the treatment of obesity; (5) forceHPF to make restitution to consumers of the product; and (6) establish a fund for medicalmonitoring of all persons who used HPF's Herbal Phen-Fen products.

HPF tendered its defense of the Day complaint to General Star. However, General Stardenied it had a duty to defend or indemnify HPF in the Day action because the Day complaint didnot seek damages for "bodily injury". HPF ultimately settled the Day action.

HPF filed its complaint against General Star for a declaratory judgment and both partiessubsequently moved for summary judgment. The trial court granted HPF's motion for summaryjudgment finding that the underlying Day action sought damages for bodily injury in that itsought to establish a fund for medical monitoring of all persons who used HPF's herbal products. The trial court ruled that General Star breached its duty to defend and awarded damages to HPF. This appeal followed.

ANALYSIS

Summary judgment is appropriate where, when viewed in the light most favorable to thenon-moving party, the pleadings, depositions, affidavits, and admissions on file show there is nogenuine issue as to any material fact, and the moving party is entitled to judgment as a matter oflaw. 735 ILCS 5/2-1005(c) (West 2000); Sollami v. Eaton, 201 Ill.2d 1, 6-7, 772 N.E.2d 215(2002). Our review of a grant of summary judgment is de novo. Villarreal v. Schaumburg, 325Ill.App.3d 1157, 1160, 759 N.E.2d 76 (2001).

In determining whether an insurer has a duty to defend its insured, the court must look tothe allegations in the underlying complaint and compare them to the relevant provisions of theinsurance policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 107-08,607 N.E.2d 1204 (1992). If the underlying complaint alleges facts within or potentially withinpolicy coverage, the insurer is obliged to defend its insured even if the allegations are groundless,false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d64, 73, 578 N.E.2d 926 (1991). An insurer may not justifiably refuse to defend an action againstits insured unless it is clear from the face of the underlying complaint that the allegations fail to

state facts which bring the case within, or potentially within, the policy's coverage. Wilkin, 144Ill.2d at 73. Moreover, if the underlying complaint alleges several theories of recovery against theinsured, the duty to defend arises if only one such theory is within the potential coverage of thepolicy. Wilkin, 144 Ill.2d at 73.

The General Star commercial general liability insurance policy issued to HPF provides inpertinent part:

"Bodily injury and property damage liability.

We will pay those sums that the insured becomes legally obligated to pay as damages because of'bodily injury' or 'property damage' to which this insurance applies. We will have the right andduty to defend the insured against any 'suit' seeking those damages.

* * *

'Bodily injury' means bodily injury, sickness or disease sustained by a person, including deathresulting from any of these at any time." (Emphasis in original.)

The issue is whether the allegations set forth in the Day complaint sufficiently raiseclaims seeking damages for bodily injury to fall within the meaning of the policy.

General Star contends that the Day complaint did not allege a covered "bodily injury" asthat term is defined in the policy so that the claim does not fall within the coverage of the CGL. Moreover, General Star asserts that the California statutes under which Day sued do not providea remedy for bodily injury.

HPF contends that the Day complaint seeks damages for bodily injury because it seeksthe establishment of a fund for medical monitoring of all persons who used HPF's Herbal Phen-Fen products. HPF relies upon two cases from foreign jurisdictions, Techalloy Company v.Reliance Insurance Co., 487 A.2d 820 (Sup.Ct. Pa. 1985), and Burt Rigid Box, Inc. v. TravelersProp. Cas. Corp., 126 F. Supp. 2d 596 (W.D.N.Y. 2001)(aff'm in part, rev'd in part, 302 F.3d 83(2nd Cir. 2002)) for support of its position. We find that both cases are distinguishable and aretherefore not persuasive authority for this court.

In both cases cited by HPF, the underlying complaint contained factual allegations ofbodily injury and sought relief for that bodily injury. For example, in Techalloy, the underlyingcomplaint claimed that the defendant had "recklessly dumped or stored trichloroetheline" andthat "exposure to, contact with or ingestion of TCE, a hazardous and toxic chemical, may havecaused serious injury, including neurological, pulmonary, hepatic and renal damage with possiblemutagenic, teratogenic and carcinogenic results." The complaint further alleged that "theplaintiff class suffered an increased risk of serious illness or death due to actual ingestion and/oruse of contaminated water and suffered from high anxiety because of the awareness of this risk." The underlying complaint sought the creation of a trust fund for the payment of present andfuture medical expenses. The Supreme Court of Pennsylvania found that the underlyingcomplaint alleged "exposure to, ingestion and use of water contaminated with a highly-dangerouschemical capable of causing severe physical damage" and held that these allegations weresufficient allegations of personal injury to render the underlying complaint at least potentiallywithin the policy's coverage.

Similarly, in Burt Rigid Box, the insurance company argued that the underlying plaintiffsdid not seek damages for "bodily injury" within the coverage of the policy because they soughtonly injunctive relief for the establishment of a fund for future medical testing and surveillancebased on exposure to a landfill containing hazardous waste. The district court in New Yorkdisagreed and found that the underlying complaint alleged claims for bodily injury, noting thatthe underlying complaint alleged that the plaintiffs were at a higher risk for developing certaincancers.

In the case at bar however, there are no allegations of bodily injury in the underlyingcomplaint. Despite HPF's characterization that the Day complaint generally alleges that HerbalPhen-Fen and Herbal Phen-Fen Stage 2 were not safe, our review of the Day complaint showsthat it does not make a single allegation that HPF's herbal products caused bodily injury or eventhat they may cause bodily injury. In fact, the Day complaint carefully alleges that HPF's herbalproducts have not been proven safe and glaringly omits any allegation that the herbal productsare unsafe or may be unsafe. We find that the essence of the Day complaint is that HPFmisrepresented that its herbal products were proven safe and effective for the treatment of obesitywhen, in fact, those products had not been so approved.

We find Crawford Laboratories, Inc. v. St. Paul Insurance Co. of Illinois, 306 Ill.App.3d538, 715 N.E.2d 653 (1999), cited by General Star, to be insightful in determining the issuebefore this court. In Crawford, the underlying action was filed against Crawford by AYS, aCalifornia nonprofit organization. The underlying AYS complaint sought injunctive relief andthe imposition of penalties against Crawford for the alleged violation of a California statuterequiring warnings on the labels of products containing certain toxic chemicals. The underlyingcomplaint alleged that Crawford's violation of the labeling requirements exposed individuals totoxic chemicals. In affirming the trial court's finding that St. Paul did not owe Crawford a dutyto defend in the underlying action, this court stated that the "core of AYS's claim for damages isnot a claim for damages due to bodily injury." Crawford Laboratories, 306 Ill.App.3d at 543. Inreaching its decision, this court looked at the nature of the underlying complaint and found that itsought damages for violation of the statute and not for bodily injury resulting from exposure totoxins. 306 Ill.App.3d at 542.

Similarly, here we find that the Day complaint fails to allege facts which fall within, orpotentially within, the coverage language of the General Star policy. As stated above, the core ofDay's claim is that HPF misled the public that its Herbal Phen-Fen products were proven safe andeffective for the treatment of obesity, when in fact, those products were not approved. The Daycomplaint does not seek damages for any sickness or injury caused by ingesting HPF's herbalproducts; it seeks injunctive remedies for the misrepresentation of the quality and effectivenessof the products. Moreover, the establishment of a medical monitoring fund cited by the trialcourt as an allegation of bodily injury, is nothing of the sort. The request for such a fund was inthe prayer for relief and was not an allegation of bodily injury having been sustained. Further,medical monitoring of persons who used HPF's products seeks to monitor the products' effects. We cannot presume, and Day did not allege that the products caused bodily injury. No suchinference can be drawn from the Day complaint.

Accordingly, we reverse the finding of the trial court and hold that General Star did notbreach any duty to defend HPF in the Day action. As such, we further find that General Star didnot have a duty to indemnify HPF.

REVERSED.

O'BRIEN, P.J., and GALLAGHER, J., concur.

1. The Day complaint brought eight claims for violation of the California Business andProfessions Code