¶ 36 Recognizing this redundancy, the defendant raises a point of law. He contends the circuit court improperly relied upon his battery conviction to conclude he acted intentionally to apply the exclusion clauses. The defendant cites Cowan v. Insurance Co. of North America, 22 Ill.App.3d 883, 318 N.E.2d 315 (1974), and Allstate Insurance Co. v. Kovar, 363 Ill.App.3d 493, 299 Ill.Dec. 916, 842 N.E.2d 1268 (2006), as authority that the conviction of the insured of a criminal offense or a finding of liability for tortious conduct underlying the civil claim does not automatically bar the insured from contending that his conduct was not intentional for purposes of an exclusion clause. ¶ 37 In Cowan, the insured got into a car accident, and in the course of an argument that followed the accident, the insured pushed the other driver, causing him to fall and fracture his leg.

An insurer has a duty to inform its insured adequately of the rights it intends to reserve when a policy defense may turn upon facts to be determined in that litigation. ( Cowan v. Insurance Co. of North America (1974), 22 Ill. App.3d 883, 318 N.E.2d 315 ( Cowan).) An informed insured then can choose intelligently between retaining his own counsel or accepting counsel from the insurer.

However, even in cases of criminal conduct, a potential for coverage has been found. In Cowan v. Insurance Co. of North America, 22 Ill. App. 3d 883 (1974), for example, the plaintiff had an altercation with a man, knocking him down and causing him to fracture his leg. The victim sued the plaintiff in the underlying action, alleging that the plaintiff violently assaulted him and that the assault was willful and malicious.

The reservation of rights is a means by which the insurer seeks to suspend the operation of estoppel doctrines; when an insurer defends a claim against its insured under a proper reservation of rights, the insured cannot then so easily claim that it was prejudiced by the insurer's conflict of interest. See Cowan v. Insurance Co. of North America (1974), 22 Ill. App.3d 883, 889-90, 318 N.E.2d 315; Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App.2d 153, 240 N.E.2d 742. • 3, 4 Such a reservation of rights must, therefore, adequately inform the insured of the rights which the insurer intends to reserve, "for it is only when the insured is adequately informed of the potential policy defense that he can intelligently choose between retaining his own counsel or accepting the tender of defense counsel from the insurer."

These issues are inappropriate for resolution on a motion for summary judgment. As discussed at Section 11(E), infra, Roxborough's reliance on Cowan v. insurance Co. of North America, 22 Ill. App.3d 883, 318 N.E.2d 315, 326 (1974), to argue that Commercial Union's reservation of rights letters are inadequate as a matter of law, is misplaced. Based on the foregoing, I deny Roxborough's Motion for Partial Summary Judgment on Commercial Union's Fourth Claim for Relief.

With respect to Count I, the intentional tort count, the parties agree that the applicable standard is contained in Cowan v. Insurance Company of North America, 22 Ill. App.3d 883, 318 N.E.2d 315 (1st Dist. 1974). However, the parties disagree over the nature of that standard.

Absent a clearly communicated reservation of rights by the insurer, if the insurer elects to take over the insured's defense, it will afterwards be estopped, under the equitable doctrine of estoppel in pais, from denying its own liability under the policy; this is ordinarily justified because the insurer has prejudiced the insured's right to control his own defense. Apex, 99 Ill. App.2d at 161-62 (estoppel in pais operates as the result of the insurer's monopolization of the insured's defense, since the insured, in reliance thereon, refrains from seeking other counsel); see Cowan v. Insurance Co. of North America, 22 Ill. App.3d 883, 890-91 (1974) (distinguishing between equitable estoppel in pais arising from breach of insurer's contract and collateral estoppel or estoppel by verdict arising from prior adjudication involving parties or their privies). Where the insurer has the duty to defend, that duty includes the right to assume control of the litigation; the purpose of that right is to allow insurers to protect their financial interests in the outcome of the litigation and minimize unwarranted liability claims.

Here, conversely, Nationwide promptly notified Tobi of its intent not to defend. • 1 Tobi also cites the case of Cowan v. Insurance Co. of North America (1974), 22 Ill. App.3d 883, 318 N.E.2d 315, for the proposition that "[i]f a letter regarding potential policy defense is sent to an insured it must be strictly interpreted and construed most strongly against the insurer." Cowan did not involve a refusal to defend, but rather a reservation of rights where the court observed "bare notice of a reservation of rights is insufficient unless it makes specific reference to the policy defense which may ultimately be asserted and to the potential conflict of interest.

In a case which preceded Thornton v. Paul (1978), 74 Ill.2d 132, 384 N.E.2d 335, the same conclusion was reached. Discussing the dilemma of the insurer in a case where a tort claim is brought against the insured in negligence but investigation indicates that the act was intentional, the court in Cowan v. Insurance Co. of North America (1974), 22 Ill. App.3d 883, 891, 318 N.E.2d 315, 322, stated: "In instances where the insurer refuses to defend, the better-reasoned cases hold that the insurer is not bound by the prior adjudication on questions of policy coverage."

944, 352 N.E.2d 60, appeal denied (1976), 63 Ill.2d 556; Fragman Construction Co. v. Preston Construction Co. (1971), 1 Ill. App.3d 1002, 274 N.E.2d 614, appeal denied (1972), 49 Ill.2d 575; Palmer v. Sunberg (1966), 71 Ill. App.2d 22, 217 N.E.2d 463, appeal denied (1966), 34 Ill.2d 631; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App.2d 184, 193 N.E.2d 123.) 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. ( Associated Indemnity Co. v. Insurance Co. of North America (1978), 68 Ill. App.3d 807, 386 N.E.2d 529; Thornton v. Paul (1977), 51 Ill. App.3d 337, 366 N.E.2d 1048; Aetna Casualty Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App.3d 744, 358 N.E.2d 914; Elas v. State Farm Mutual Automobile Insurance Co. (1976), 39 Ill. App.3d 944, 352 N.E.2d 60, appeal denied (1976), 63 Ill.2d 556; Cowan v. Insurance Company of North America (1974), 22 Ill. App.3d 883, 318 N.E.2d 315; Fragman Construction Co. v. Preston Construction Co. (1971), 1 Ill. App.3d 1002, 274 N.E.2d 614, appeal denied (1972), 49 Ill.2d 575; Palmer v. Sunberg (1966), 71 Ill. App.2d 22, 217 N.E.2d 463, appeal denied (1966), 34 Ill.2d 631; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App.2d 184, 193 N.E.2d 123.) This is not a collateral estoppel resulting from the prior adjudication against the insured, since that doctrine only applies where the issue was necessarily ruled upon in the first adjudication. ( Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App.2d 153, 240 N.E.2d 742; Cowan v. Insurance Co. of North America (1974), 22 Ill. App.3d 883, 318 N.E.2d 315.) Rather, the 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 pr