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JUSTICE WELCH delivered the opinion of the court:

This is an appeal from a summary judgment entered by the circuit court of MadisonCounty in a declaratory judgment action brought by Korte Construction Company (Korte)against American States Insurance, a Safeco Company (American States). Korte was namedan "additional insured" under a policy of insurance issued by American States to Miller &Maack General Contractors, Inc. (Miller & Maack), which was constructing the newEdwardsville high school building. Korte was the construction manager on the project. Theadditional-insured endorsement of the American States policy names Korte as an additionalinsured, "but only with respect to liability arising out of [Miller & Maack's] ongoingoperations performed for [Korte]."

On or about December 8, 1997, Margy Voigt, individually and as special administratorof the estate of Darwin Voigt, filed a wrongful-death action against Korte in the circuit courtof the City of St. Louis, alleging that on June 25, 1997, Darwin Voigt was a laboreremployed by Miller & Maack at the Edwardsville high school construction site and that hewas killed while setting up a construction office trailer owned by, and for the use of, Korte. The complaint asserted various theories of liability against Korte. This underlying action wassettled for $1.5 million in December 1999.

The complaint for declaratory judgment, filed December 31, 1998, alleges that Kortehad tendered its defense of the Voigt suit to American States pursuant to the additional-insured endorsement but that American States had failed and refused to accept said tender. Count I of the complaint seeks a declaratory judgment that Korte was covered under theAmerican States policy, that American States had a duty to defend Korte in the Voigt suit,and that American States has a duty to indemnify Korte up to the $1 million limit of thepolicy for any settlement or judgment entered in the Voigt suit. Count II of the complaintseeks attorney fees, costs, and a punitive award against American States pursuant to section155 of the Illinois Insurance Code (Insurance Code) (215 ILCS 5/155 (West 1998)) for itsvexatious and unreasonable conduct in refusing to defend or indemnify Korte in the Voigtsuit.

On June 16, 1999, American States answered the complaint for declaratory judgmentand asserted the affirmative defense that Korte was covered as an "additional insured" underan applicable insurance policy issued by St. Paul Fire & Marine Insurance Company (St.Paul) to the Edwardsville School District, which policy provided primary insurance to Korte,making any coverage provided by the American States policy excess. This affirmativedefense was based on an endorsement to the American States policy, which provides:

"This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

The following paragraph is added to Section IV, paragraph 4.b[,] COMMERCIALGENERAL LIABILITY CONDITIONS

This insurance is excess over:

Any other insurance provided to you on a primary basis under a policy towhich you have been included as an additional insured."

Section IV, paragraph 4.a, of the American States policy, entitled "Commercial GeneralLiability Conditions," provides, "This insurance is primary except when [paragraph 4.b]applies." According to American States, because Korte had primary coverage under the St.Paul policy, the American States policy provided only excess coverage and, accordingly, nodefense or indemnification was required by American States. In its answer, American Statesprays for a declaratory judgment that its policy provides only excess coverage and thattherefore American States had no duty to defend or indemnify Korte. Korte made no replyor other response to the affirmative defense asserted by American States.

On November 12, 1999, Korte filed a motion for summary judgment on its declaratoryjudgment complaint. American States responded, asserting that the St. Paul policy providedprimary coverage and the American States policy provided only excess coverage. AmericanStates also asserted that, according to the complaint in the underlying suit, Darwin Voigt waskilled solely due to acts of Korte, and not to acts of Miller & Maack performed for Korte, andthat the additional-insured endorsement of the American States policy provides coverage only"with respect to liability arising out of [Miller & Maack's] ongoing operations performed for[Korte]." American States asserted that it had accepted the tender of St. Paul in the Voigtsuit to the extent that the American States policy potentially provides excess coverage toKorte.

The motion for summary judgment was denied as premature because of outstandingdiscovery requests. American States had served a request to admit facts and a request forproduction on Korte, to which Korte had not yet responded. American States had then fileda motion to compel response. This motion to compel was still pending.

On February 15, 2000, the day after its motion for summary judgment was denied aspremature, Korte noticed up for hearing American States' motion to compel. On February18, 2000, a hearing was held on American States' motion to compel Korte's response to therequest to admit facts and request to produce documents. The court entered an orderdirecting Korte to comply with certain requests for production. The order makes no mentionof the requests for admissions. No report of the proceedings before the trial court is availablefor our review.

On March 1, 2000, Korte renewed its motion for summary judgment. On March 15,2000, the circuit court of Madison County entered an order granting Korte's motion for asummary judgment on its complaint. The trial court found that the complaint in theunderlying Voigt action contained allegations which brought that suit within the coverageprovisions of the American States policy, including allegations that Korte's liability arose outof acts performed by Miller & Maack for Korte. The court therefore concluded that Kortewas an additional insured under the American States policy and that American States had aduty to defend and indemnify Korte in the Voigt suit. The court ruled that because AmericanStates failed to defend Korte under a reservation of rights or seek a declaratory judgment asto coverage issues, it was estopped from raising policy-defense or noncoverage issues in thedeclaratory judgment action. The court further found that, even if American States was notestopped from raising policy defenses, it could not rely on the "other insurance" provisionof its policy unless Korte gave permission to seek coverage under that "other insurance."Finally, the court found that the conduct of American States had been in bad faith andvexatious and unreasonable within the meaning of section 155 of the Insurance Code. Thetrial court reasoned that Korte had made repeated requests to American States for a defensebut that American States had denied its duty to defend, forcing Korte to file the declaratoryjudgment action. The court ruled that American States' argument that Korte's liability did notarise out of Miller & Maack's ongoing operations performed for Korte corresponded to onethat had been rejected in another case (American States Insurance Co. v. Liberty MutualInsurance Co., 291 Ill. App. 3d 336, 341 (1997)) and therefore did not constitute a good-faithargument or create bona fide dispute. Accordingly, the court entered a judgment in favor ofKorte and against American States in the amount of $1,563,414.10. We note that theelements of the judgment add up to $1,563,414.13: the $1.5 million settlement amount in theVoigt case, attorney fees and expenses in the amount of $38,414.13, and punitive damagesin the amount of $25,000. American States' motion to reconsider the order was denied onApril 28, 2000.

We note that there are no reports of any of the proceedings before the trial court. Inreviewing the trial court's judgment, we therefore are forced to rely entirely on the commonlaw record. As the appellant, American States has the duty to present this reviewing courtwith a complete record on appeal; any doubts arising from the incomplete record aretherefore resolved against the appellant, and regarding those issues that depend for theirresolution upon facts not in the record, we will affirm. See Hudlin v. City of East St. Louis,227 Ill. App. 3d 817, 828-29 (1992).

On appeal, American States raises five issues: (1) whether the trial court erred ingranting a summary judgment in favor of Korte where Korte had failed to reply to, andtherefore effectively admitted, American States' affirmative defenses, (2) whether the trialcourt erred in granting a summary judgment in favor of Korte without first ruling onAmerican States' motion to compel a response to its request to admit facts, (3) whether thetrial court erred in finding that it had failed to seek a declaratory judgment and therebywaived policy defenses where it sought a declaratory judgment in its answer to Korte'scomplaint, (4) whether the trial court erred in finding that it had acted in bad faith within themeaning of section 155 of the Insurance Code, and (5) whether in the summary judgmentorder the trial court erred in determining the amount of attorney fees and expenses. Weconclude that the trial court properly found that American States was estopped from raisingpolicy defenses because it failed to defend Korte under a reservation of rights or seek adeclaratory judgment. We also conclude that the conduct of American States was vexatiousand unreasonable. Therefore, we affirm the judgment of the circuit court.

The sole function of a court reviewing the trial court's entry of a summary judgmentis to determine whether the trial court correctly ruled that no genuine issue of fact had beenraised and, if none was raised, whether the judgment was correctly entered as a matter of law. Hudlin, 227 Ill. App. 3d at 825. We review the trial court's ruling de novo. Brown v.Murphy, 278 Ill. App. 3d 981, 989 (1996).

We address first American States' argument that the trial court erred in finding thatAmerican States failed to seek a declaratory judgment and thereby waived policy defenses,where American States had sought a declaratory judgment in its answer to Korte's complaint. We believe that the resolution of this argument is dispositive of other issues as well. Whena complaint against an insured alleges facts that bring the action within or potentially withinthe scope of insurance policy coverage, the insurer taking the position that the complaint isnot covered by the policy must defend the suit under a reservation of rights or seek adeclaratory judgment that there is no coverage. State Farm Fire & Casualty Co. v. Martin,186 Ill. 2d 367, 371 (1999). Our supreme court has identified these two options for aninsurer taking the position that a complaint potentially alleging coverage is actually notcovered under its insurance policy: the insurer may either defend the suit under a reservationof rights or seek a declaratory judgment that there is no coverage. Martin, 186 Ill. 2d at 371. If the insurer fails to exercise either of its two options and refuses to defend an insured whoultimately incurs an adverse judgment, the insurer will be estopped from raising noncoverageas a defense to an action brought to recover the policy proceeds. Martin, 186 Ill. 2d at 371;Ayers v. Bituminous Insurance Co., 100 Ill. App. 3d 33, 35 (1981). An insurer cannot safelyor justifiably refuse to defend an action against its insured unless it is clear from the face ofthe complaint that the claim is beyond the policy's coverage. United States Fidelity &Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991).

In the instant case, American States does not argue on appeal that the trial court erredin finding that the allegations of the Voigt complaint bring the action within, or potentiallywithin, the scope of its insurance policy. Instead, American States argues only that it didproperly seek a declaratory judgment that there was no coverage for Korte under its policyand therefore it should not be estopped from raising policy defenses. American States assertsthat it sought such a declaratory judgment in the affirmative defense included in its answerand that this is sufficient to avoid the application of the estoppel doctrine. American Statesrelies on Louis Marsch, Inc. v. Pekin Insurance Co., 140 Ill. App. 3d 1079 (1985), and Ayersv. Bituminous Insurance Co., 100 Ill. App. 3d 33 (1981). We are not persuaded by thesecases.

In the cases relied upon by American States, the courts did not discuss the factsleading up to the insureds' filing of the complaints for declaratory judgment. Thus, it is notclear how much time elapsed between the filing of the underlying complaints and the filingof the declaratory judgment actions. Furthermore, in those cases it is not clear howrecalcitrant the insurers were in failing to defend the insureds or in failing to file declaratoryjudgment actions.

In the case at bar, the facts are clear. According to affidavits filed in support ofKorte's motion for summary judgment, Korte repeatedly asked American States to defend itin the Voigt action, and American States repeatedly refused. American States simply deniedits duty to defend and did nothing. American States did not go to court to seek a declaratoryjudgment that the Voigt action was not within the scope of its insurance policy, and it did notdefend Korte under a reservation of rights. In sum, American States did absolutely nothing. American States abandoned its insured and neither provided a defense under a reservationof rights nor sought a declaratory judgment. Twelve months after the underlying action wasfiled against Korte, Korte finally filed its own declaratory judgment action against AmericanStates.

While there need not be a race to the courthouse and the insured should not be ableto estop the insurer from asserting policy defenses by filing a complaint for declaratoryjudgment first, the insurer must take some action to adjudicate the issue of coverage orundertake to defend the insured under a reservation of rights, and it must take that actionwithin a reasonable time of a demand by the insured. As this court stated in Shell Oil Co. v.AC&S, Inc., 271 Ill. App. 3d 898, 903 (1995), a case remarkably similar to the one at bar:

"[A] serious dispute existed between [the insured] and [the insurer] withrespect to whether the claim might possibly fall within the scope of the policycoverage. Nevertheless, with [the insured] facing impending litigation premised ona claim that might potentially fall within policy coverage and hence give rise to [theinsurer's] duty to defend [the insured], [the insurer] failed to either seek a declaratoryjudgment as to its rights and obligations before or pending trial or defend [the insured]under a reservation of rights. If [the insurer] believed it had a valid case ofnoncoverage, it should have taken appropriate action. Instead, [the insurer] waiteduntil [the insured] brought a declaratory judgment action to determine the question ofpotential coverage and duty to defend. *** Having failed to take the necessary legalaction prior to [the insured's] declaratory judgment action, [the insurer] is nowestopped from disputing the question of coverage."

When an insured tenders to an insurer the defense of the underlying cause, the insurermay not simply refuse to participate in the litigation of the underlying cause and wait for theinsured to institute litigation against the insurer to determine the insurer's respective rightsand duties. Shell Oil Co., 271 Ill. App. 3d at 902. This is precisely what American Statesdid in the case at bar. It is now estopped from raising noncoverage as a defense to Korte'saction for declaratory judgment and indemnification.

In light of our holding that American States is estopped from raising policy defenses,we also hold that the trial court did not err in granting Korte's motion for summary judgment,despite the fact that Korte had not formally replied to American States' affirmative defense,which, American States argues, is effectively an admission of the facts alleged therein. Theaffirmative defense simply attempts to establish a policy defense-that there is no duty todefend because the St. Paul policy is primary and the American States policy is excess. Evenif the affirmative defense is deemed admitted, American States cannot raise it. AmericanStates is estopped from raising this policy defense, because it failed to seek a declaratoryjudgment or defend Korte under a reservation of rights. Accordingly, there is no genuineissue of fact, and the trial court did not err in granting a summary judgment despite Korte'sfailure to reply to the affirmative defense.

Similarly, the trial court did not err in granting a summary judgment despite thealleged lack of a ruling on American States' motion to compel a response to its request toadmit facts. Any such facts go only to the same policy defense as does the affirmativedefense, which American States is estopped from raising because of its failure to file adeclaratory judgment action or defend Korte under a reservation of rights. Even if the factsare deemed admitted, American States cannot rely on them in support of a policy defense. Accordingly, the trial court did not err in entering a summary judgment despite the allegedlack of a ruling on American States' motion to compel a response to the request to admitfacts.

American States next argues that the trial court erred in finding that its conduct wasvexatious and unreasonable within the meaning of section 155 of the Insurance Code. Section 155 of the Insurance Code provides, in pertinent part, as follows:

"In any action by or against a company wherein there is in issue the liability of acompany on a policy or policies of insurance or the amount of the loss payablethereunder, or for an unreasonable delay in settling a claim, and it appears to the courtthat such action or delay is vexatious and unreasonable, the court may allow as partof the taxable costs in the action reasonable attorney fees [or] other costs, plus [certainpunitive amounts]." 215 ILCS 5/155 (West 1998).

Section 155 provides a remedy to insureds who encounter unnecessary difficulties resultingfrom an insurance company's unreasonable and vexatious refusal to honor its contract withthe insured. Shell Oil Co., 271 Ill. App. 3d at 908. An award under section 155 is properwhere an insurer has acted vexatiously and unreasonably in refusing to defend its insured. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 159 (1999).

The trial court in the instant case found that American States had acted vexatiouslyand unreasonably in refusing and failing to defend Korte in the underlying action, despiteKorte's repeated requests that it do so, and in forcing Korte to file this declaratory judgmentaction. We agree.

It is well-settled that the proper standard of review to be applied to an award undersection 155 pursuant to a summary judgment is the standard of review that is appropriate forany summary judgment. Employers Insurance of Wausau, 186 Ill. 2d at 160; Mobil Oil Corp.v. Maryland Casualty Co., 288 Ill. App. 3d 743, 751 (1997). This court reviews the grant ofa summary judgment de novo (Brown v. Murphy, 278 Ill. App. 3d 981, 989 (1996)), askingonly whether any genuine issue of material fact exists and whether the movant is entitled toa judgment as a matter of law. Hudlin v. City of East St. Louis, 227 Ill. App. 3d 817, 825(1992).

One important benefit of a liability policy is the defense of liability claims that havebeen filed in court. Richardson v. Illinois Power Co., 217 Ill. App. 3d 708, 711 (1991). InEmployers Insurance of Wausau, 186 Ill. 2d at 160, our supreme court held that an insuredwas entitled to an award under section 155 where the insurer repeatedly refused its insured'srequest for a defense and waited for more than one year from the initial demand and nearlyfour months after the underlying suit was concluded before filing a declaratory judgmentaction. Our supreme court stated:

"These undisputed facts compel the legal conclusion that [the insurer's] refusal todefend the Wyoming suit was vexatious and unreasonable as a matter of law."Employers Insurance of Wausau, 186 Ill. 2d at 160.

In Shell Oil Co., 271 Ill. App. 3d at 909, this court held that the insurer's refusal todefend its insured was vexatious and unreasonable where the insurer refused the insured'sdemand for a defense, failed to bring a declaratory judgment action to determine its rightsand obligations under the policy, and chose instead to wait until the insured was forced toinstitute a declaratory judgment action.

Similarly in the case at bar, American States refused Korte's repeated requests for adefense, failed to file a declaratory judgment action to adjudicate its rights and obligationsunder the policy, and instead abandoned its insured, thereby forcing the insured to file thisdeclaratory judgment action. Accordingly, the trial court did not err in finding that theconduct of American States was vexatious and unreasonable within the meaning of section155 of the Insurance Code.

American States next argues that there existed bona fide disputes concerning the scopeand application of insurance coverage, whether American States was an excess provider, andwhether Korte's liability arose out of acts performed by Miller & Maack for Korte. It arguesthat its conduct cannot be found to be vexatious and unreasonable in light of these bona fidedisputes. We do not agree. American States should have raised these disputes in adeclaratory judgment action or defended Korte under a reservation of rights, instead ofsimply denying its duty to defend, abandoning its insured, and forcing the insured to file adeclaratory judgment action.

Finally, American States argues that the trial court erred in determining under section155 the amount of attorney fees and expenses to award based only on the affidavit of Korte'sattorney. American States argues that there is insufficient evidence in the record todemonstrate that Korte established either the amount or the reasonableness of the feesawarded.

In support of its motion for summary judgment seeking attorney fees and costspursuant to section 155 of the Insurance Code, Korte submitted the affidavit of its attorney,William J. Knapp, stating the amount of attorney fees incurred in representing Korte in theunderlying Voigt matter and in prosecuting the declaratory judgment action against AmericanStates and stating that the hourly rates charged were reasonable and customary and that thework performed was necessitated by the nature of the claims involved. American Statessubmitted no counteraffidavit and made no argument to the trial court that these fees werenot reasonable or had not actually been incurred. Even in its motion to reconsider thesummary judgment, American States did not argue that the fees charged were not reasonableand customary, but it argued only that the number of hours actually spent on the Voigt casesubsequent to American States' refusal to defend had not been conclusively established. Inthe summary judgment, the trial court explicitly found that the attorney fees charged werereasonable and customary.

We acknowledge that the affidavit submitted in support of the award of attorney feesin this case does not appear to be as well-documented and detailed as was the affidavit inRichardson v. Illinois Power Co., 217 Ill. App. 3d 708, 711 (1991), where an award ofattorney fees based only on the attorney's affidavit was upheld. Nevertheless, we uphold theaward in this case. Because American States did not argue in the trial court that the feescharged were not reasonable and customary, it may not make that argument before this court. See In re Marriage of T.H. & D.H., 255 Ill. App. 3d 247, 254 (1993) (issues not raised in thetrial court are waived and may not be raised for the first time on appeal). Furthermore, wherea party moving for a summary judgment files a supporting affidavit containing well-pleadedfacts and the party opposing the motion files no counteraffidavit, the material facts set forthin the movant's affidavit stand as admitted. Hudlin, 227 Ill. App. 3d at 830. Korte supportedits motion for summary judgment with an affidavit setting forth its attorney fees andexpenses. American States did not rebut this affidavit with a counteraffidavit or otherevidence. American States did not argue that the attorney fees were not reasonable andcustomary. Accordingly, we find no error in the trial court's granting the summary judgmentas to attorney fees and expenses pursuant to section 155 of the Insurance Code.

Finally, we address Korte's motion to strike portions of American States' reply brief,which we have ordered taken with the case. American States raises in its reply brief severalpoints and arguments that were not raised in its opening brief on appeal and that are not inreply to arguments made by Korte in its answer brief. Points not raised in the appellant'sopening brief are waived and may not be raised in the reply brief, in oral argument, or in apetition for rehearing. 177 Ill. 2d R. 341(e)(7). Accordingly, we grant Korte's motion tostrike portions of American States' reply brief.

For the foregoing reasons, the judgment of the circuit court of Madison County isaffirmed.

Affirmed.

KUEHN and MAAG, JJ., concur.