American Service Insurance Co. v. United Automobile Insurance Co. ( 2011 )


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  •                                                        FIRST DIVISION
    April 18, 2011
    No. 1-09-3070
    IN THE APPELLATE COURT OF ILLINOIS
    FIRST JUDICIAL DISTRICT
    AMERICAN SERVICE INSURANCE COMPANY,         )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellant,                   )     Cook County.
    )
    v.                                          )     No. 05 CH 17501
    )
    UNITED AUTOMOBILE INSURANCE COMPANY,        )     The Honorable
    )     Kathleen M. Pantle,
    Defendant-Appellee.                    )     Judge Presiding.
    JUSTICE LAMPKIN delivered the judgment of the court, with
    opinion.
    Presiding Justice Hall and Justice Hoffman concurred in the
    judgment and opinion.
    O P I N I O N
    Plaintiff, American Service Insurance Company (ASI), appeals
    the trial court’s order denying its motion for summary judgment
    and granting the cross-motion for summary judgment filed by
    defendant, United Automobile Insurance Company (UAIC).      In so
    doing, the trial court determined that, because UAIC had
    rescinded its policy, defendant owed no duty to defend or
    indemnify a claim resulting from a February 2, 2004, car accident
    in which plaintiff’s insured was injured.       On appeal, plaintiff
    contends the trial court erred in denying its motion for summary
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    judgment because defendant improperly rescinded its policy where
    defendant’s insured did not make any material misrepresentations
    on her insurance application and had no duty to notify defendant
    of changes to her application responses.    Plaintiff further
    contends defendant waived its right to rescind coverage of the
    insured by failing to promptly act after learning of an accident
    prior to the accident at issue.    Based on the following, we
    affirm.
    FACTS
    On April 9, 2003, Janice Baker applied for an insurance
    policy with UAIC vis-a-vis Lincoln Insurance Agency, an
    independent agency.   The application was completed by telephone.
    In the application, Baker was asked, “[I]s there any operator in
    the household under 25 years of age?”    Baker answered “no.”   When
    asked the “Names of all Operators,” Baker listed herself and her
    husband, John Webb.   “Operator” was not defined in the policy.
    Baker testified at her deposition that she understood the term
    “operator” to mean a driver.    The application was signed by
    Baker’s agent.
    UAIC issued a policy to Baker providing bodily injury and
    property damage liability from April 9, 2003, to April 9, 2004,
    on a 1986 Chevrolet Monte Carlo.    The policy excluded Baker’s
    husband, John, from coverage.    The declarations page contained
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    the following disclosure:
    “Coverage afforded is only with respect to the
    coverages indicated herein by a specific premium charge
    or charges.    The limit of the company’s liability
    against each such coverage shall be stated herein,
    subject to all terms of this policy.    Insured warrants
    that there are no other drivers in the household other
    than those listed in the application or endorsement.”
    The policy provided coverage to Baker, as the named insured, and
    “any other person using such automobile to whom the named insured
    has given permission, provided the use is within the scope of
    such permission.”
    In addition, the conditions section of the policy provided:
    “If there has been a misrepresentation or false
    warranty, made with actual intent to deceive or which
    materially affects either the risk or hazard assumed by
    the Company, made by the insured or in his behalf in
    the negotiation for this policy, or breach of condition
    of such policy, and if said misrepresentation or false
    warranty or breach of condition is stated in the policy
    or endorsement or rider attached thereto, or in written
    application for this policy, then this policy shall be
    null and void and of no benefit, provided, however,
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    that the Company, during the lesser of the first year
    of the policy or the first term of the policy, rescinds
    the policy and declares this policy void.    If the
    policy has been in effect more than the lesser of one
    year or the first policy term, then the Company shall
    not rescind this policy.    Notwithstanding any other
    provision in this policy, this policy shall provide no
    coverage or benefit to any person who makes a
    fraudulent statement or omission or engages in
    fraudulent conduct with respect to any accident or loss
    for which coverage or a benefit is sought under this
    policy or any renewal of this policy.”
    Further, the conditions section of the insurance policy
    contained a paragraph entitled “Declarations,” which provided:
    “By acceptance of this policy, the insured named
    in item 1 [Baker] of the Declarations agrees that the
    statements contained in the Application, a copy of
    which is attached to and forms part of this policy,
    have been made by him or on his behalf and that said
    statements and the statements of the Declarations and
    any subsequent Application accepted by the Company are
    offered as an inducement to the Company to issue or
    continue this policy and that the same are his
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    agreements and representations, and that this policy is
    issued and continued in reliance upon the truth of such
    statements and representations and that this policy
    embodies all agreements existing between himself and
    the Company or any of its agents relating to this
    insurance.” (Emphasis added.)
    On May 4, 2003, the UAIC policy was amended to change the
    covered vehicle to a 1993 Ford Thunderbird.     An amended
    declarations page was issued providing that “this declaration
    page with ‘policy provisions’ and all other applicable
    endorsements complete your policy.”     Two drivers were listed,
    Baker and John.   Baker was listed as the principle driver and
    John was listed as “excluded.”
    On May 14, 2003, Baker’s son, Devin Webb, received his
    learner’s driving permit.   On June 10, 2003, Devin was driving
    Baker’s insured vehicle with her permission and was involved in a
    car accident with a light pole.    The accident resulted in
    property damage, but no bodily injuries.     On June 17, 2003, Baker
    called UAIC to report the accident.     Baker and Devin agreed to
    provide recorded statements to UAIC.
    In her recorded statement, Baker informed UAIC that her son
    was driving the insured vehicle with her permission when he was
    involved in the accident.   Baker said that her son had lived with
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    her at 9004 S. Ada Street in Chicago, Illinois, for 7 1/2 years.
    Baker said that, since “April 4, 2003,”1 Devin operated her
    vehicle two times per week.     Devin did not have a driver’s
    license; Devin had a “blue slip.”       When asked why Devin was not
    disclosed to “the agent,” Baker replied that Devin is “not an
    operator” but that she thought she “mentioned him.”
    In his recorded statement, Devin reported living with Baker,
    having a “blue slip,” and driving Baker’s car “every other day”
    since April 9, 2003.     Devin said he usually drove with his mother
    as a passenger because of his “blue slip”; however, when the
    accident occurred, Devin was driving alone.
    UAIC informed Baker that Devin was a “DNOP,” or a driver not
    on the policy, and there was a “coverage issue” that needed to be
    resolved.     It is uncontested that Baker continued to make premium
    payments for her insurance.
    William Raniere, in-house counsel for UAIC, testified at his
    deposition that UAIC first became aware Devin lived in Baker’s
    home and was 17 years old after Baker reported the June 10, 2003,
    accident.
    Devin obtained his driver’s license on August 14, 2003.
    Sometime prior to February 1, 2004, Baker requested that the
    1
    We assume the date is a typographical error because the
    insurance application was completed on April 9, 2003.
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    insured vehicle on her policy be amended to a 1991 Ford Taurus.
    Devin’s name was not added to the policy.
    On February 2, 2004, Devin was involved in another accident
    while driving Baker’s insured vehicle.     LaTonya Terrell and Bruce
    Jones, Devin’s uncle, were passengers in the car with Devin.
    LaTonya sustained bodily injuries.     The accident involved a
    parked car, which was damaged as well.
    On March 15, 2004, after Baker contacted UAIC to report the
    second accident, UAIC rescinded her policy effective April 9,
    2003, as a result of a material misrepresentation in the
    application.   Baker’s insurance premiums were returned
    thereafter.
    At her deposition, Baker testified that Devin did not drive
    her vehicle prior to April 9, 2003.     Baker attested that she was
    not in the car with Devin during the June 10, 2003, accident.
    Baker further testified that she and Devin were sued by the owner
    of the parked car involved in the February 2, 2004, accident.
    Baker said UAIC refused to defend that lawsuit and refused to
    indemnify Baker for the judgment.     Baker said the accident was
    reported to the Illinois Secretary of State, who subsequently
    suspended her driver’s license and Devin’s driver’s license for
    lack of insurance coverage.
    At his deposition, Devin testified that he never drove
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    Baker’s car prior to receiving his learner’s permit.   After
    receiving his learner’s permit, Devin said he only drove the car
    while Baker was a passenger.   Devin testified that, after his
    license was suspended following the February 2, 2004, accident,
    he continued to drive when necessary and was arrested three times
    for driving on a suspended license.
    LaTonya was insured by ASI with coverage against uninsured
    motorists.   LaTonya filed an uninsured motorist claim because
    Baker’s policy had been rescinded by UAIC.   On October 13, 2005,
    ASI filed a complaint requesting declaratory relief against
    LaTonya and UAIC such that:    (1) Devin was an insured under the
    UAIC policy when the February 2, 2004, accident occurred; and (2)
    ASI owed no duty to provide uninsured motorist coverage or any
    other coverage to LaTonya as a result of the February 2, 2004,
    accident.
    On March 10, 2006, UAIC filed a counterclaim and third-party
    complaint against ASI, LaTonya, Devin, Janice, John, Billy
    Terrell, and American Ambassador Insurance, a/s/o Stephen Thomas.
    UAIC requested declaratory relief such that:   (1) the UAIC policy
    was rescinded and thus there was no coverage for the February 2,
    2004, accident; (2) a judgment against American Ambassador
    Insurance, a/s/o Stephen Thomas, that UAIC was not obliged to pay
    or defend any claims resulting from the February 2, 2004,
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    accident; and (3) UAIC was not obliged to pay out any sums under
    its policy.
    On October 15, 2009, the trial court granted summary
    judgment in favor of UAIC and denied summary judgment in favor of
    ASI.    The trial court concluded that UAIC properly rescinded its
    policy where there was a material misrepresentation on Baker’s
    application because Baker failed to disclose Devin as a minor
    household driver.    Moreover, Baker failed to comply with her duty
    of good faith and fair dealing when she failed to update UAIC
    with the material information that Devin obtained his driver’s
    permit 35 days after the insurance application was completed.
    The court further concluded that UAIC did not waive its right to
    rescind the policy.    This appeal followed.
    DECISION
    Summary judgment is appropriate when “the pleadings,
    depositions, and admissions on file, together with the
    affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment
    as a matter of law.”    735 ILCS 5/2-1005(c) (West 2002).   When
    cross-motions for summary judgment have been filed, the parties
    agree that no genuine issue as to any material fact exists and
    only a question of law is at issue; therefore, the parties invite
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    the trial court to decide the issues based on the record.
    Greenwich Insurance Co. v. RPS Products, Inc., 
    379 Ill. App. 3d 78
    , 84, 
    824 N.E.2d 1102
     (2008).    We review an order granting
    summary judgment de novo.    Morris v. Margulis, 
    197 Ill. 2d 28
    ,
    35, 
    754 N.E.2d 314
     (2001).
    I. Material Misrepresentation
    ASI contends there could be no material misrepresentation
    justifying the rescission of the insurance policy because Baker
    was asked to list all operators, drivers, users, and co-owners on
    her application and Devin was not an operator, driver, user, or
    co-owner at the time as he did not receive his learner’s permit
    until after the application was submitted and the policy was
    issued.
    Prior to rescinding an insurance policy, an insurer must
    satisfy the following criteria set by section 154 of the Illinois
    Insurance Code (Code):
    “No misrepresentation or false warranty made by
    the insured or in his behalf in the negotiation for a
    policy of insurance, or breach of a condition of such
    policy shall defeat or avoid the policy or prevent its
    attaching unless such misrepresentation, false warranty
    or condition shall have been stated in the policy or
    endorsement or rider attached thereto, or in the
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    written application therefor.      No such
    misrepresentation or false warranty shall defeat or
    avoid the policy unless it shall have been made with
    actual intent to deceive or materially affects either
    the acceptance of the risk or the hazard assumed by the
    company.”   215 ILCS 5/154 (West 2002).
    Materiality is determined by considering whether a
    reasonably careful and intelligent person would have regarded the
    facts omitted as substantially increasing the chances of the
    events insured against so as to cause a rejection of the
    application or different conditions such as higher premiums.
    Ratliff v. Safeway Insurance Co., 
    257 Ill. App. 3d 281
    , 288, 
    628 N.E.2d 937
     (1993).    A material misrepresentation may result where
    an insured fails to disclose material information or provide
    complete information in response to a question.        Cohen v.
    Washington National Insurance Co., 
    175 Ill. App. 3d 517
    , 520, 
    529 N.E.2d 1065
     (1988).    “An insurance applicant has the duty to act
    in good faith, and an insurer is entitled to truthful responses
    so that it may determine whether the applicant meets its
    underwriting criteria.    Thus, the applicant must disclose all
    information and let the insurer determine the materiality of the
    *** information.”     Garde v. Country Life Insurance Co., 
    147 Ill. App. 3d 1023
    , 1032, 
    498 N.E.2d 302
     (1986).        An insurance policy
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    may be voided even if the insured’s misrepresentation was     a
    mistake or made in good faith.     Ratliff, 
    257 Ill. App. 3d at 288
    .
    It has been found that the nondisclosure of a 20-year-old
    driver residing in the same household as the insured is a
    misrepresentation materially affecting the risk assumed by the
    insurer.    
    Id.
       “ ‘It is a matter of common knowledge that the
    rate frequency of accidents for drivers between the ages of
    sixteen and twenty-four is substantially greater than that for
    all drivers who are twenty-five years of age or more.’
    [Citation.]”      
    Id.
    In the case before us, the insurance application contained a
    section entitled “Questions Pertaining To Applicant And All
    Members of Household.”    That section contained 12 questions.     In
    relevant part, the application asked “is there any operator in
    the household under 25 years of age?”    Baker responded, “no.”
    The section also contained several blank lines to provide the
    “names of all operators.”    Baker was listed as an operator; John
    was listed as an operator with the word “exclude” where his
    driver’s license number was requested; Devin was not listed as an
    operator.    At the bottom of the application, a disclosure
    entitled “applicant’s statement” appeared:
    “The applicant hereto states that he read this
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    application and attests that all answers given by him
    to the questions asked herein are truthful to the best
    of his knowledge and belief and that said answers were
    made as inducement to the insurance company to issue a
    policy, and it is a special condition of this policy
    that the policy shall be null and void and of no
    benefit or effect whatsoever as to any claim arising
    thereunder in the event that the attestations or
    statements in this application shall prove to be false
    or fraudulent in nature.
    It is understood that a copy of this application
    shall be attached to and form a part of the policy of
    insurance when issued and that it is intended that the
    company shall rely on the contents of this application
    in issuing any policy of insurance or renewal thereof.”
    Moreover, as stated earlier, the policy provided:
    “Notwithstanding any other provision in this
    policy, this policy shall provide no coverage or
    benefit to any person who makes a fraudulent statement
    or omission or engages in fraudulent conduct with
    respect to any accident or loss for which coverage or a
    benefit is sought under this policy or any renewal of
    this policy.”
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    Although not defined in the policy, it is clear from Baker’s
    recorded statement and her deposition testimony that she
    understood the term “operator” to mean driver.     Even assuming it
    was not a material misrepresentation to omit Devin as an operator
    on the April 9, 2003, application, Baker had an obligation, as a
    condition of the policy, to inform UAIC once Devin did begin
    driving the vehicle.     See 215 ILCS 5/154 (West 2002).   The
    application, the policy, and the declarations page each reveal
    the importance of accurate information, including the names and
    ages of all eligible drivers.     Moreover, the amended declarations
    page issued as a result of the May 4, 2003, request to update the
    vehicle information states that the “insured warrants that there
    are no other drivers in the household other than those listed in
    the application or endorsement.”2
    In their recorded statements, both Baker and Devin
    recognized that he regularly drove the vehicle after the
    application was submitted.     The record does not reveal the exact
    date upon which Devin began driving the vehicle, whether before
    the application date or immediately after; however, the record
    clearly demonstrates that Devin began operating the vehicle once
    2
    The amended declarations page updating the insured vehicle
    to a Ford Taurus, which occurred sometime before February 1,
    2004, did not contain the same language.
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    he obtained his learner’s permit on May 14, 2003.   Baker never
    contacted UAIC to update the drivers included in the policy and
    did not disclose Devin as a driver on either occasion when she
    deemed it necessary to alert UAIC that the insured vehicle had
    been changed, on May 4, 2003, and sometime before February 1,
    2004, or even after Devin had obtained his driver’s license on
    August 14, 2003.
    Barely one month after its completion, the application no
    longer accurately reflected the eligible operators in Baker’s
    household as a result of Baker’s omissions.   The amended
    declaration pages also failed to accurately reflect the eligible
    operators.   UAIC, therefore, could no longer rely on the
    application’s contents.   The policy terms disclaimed that the
    UAIC policy was “issued and continued in reliance” on the truth
    of Baker’s representations on the application and any subsequent
    application.   In order to allow for an accurate underwriting
    process, UAIC found it necessary to ask the applicant whether
    there were any operators under the age of 25 in the household.
    Moreover, UAIC found it necessary to disclaim on the amended
    declaration page that there were no other drivers in the
    household other than those listed.    “ ‘An insurer is interested
    in ascertaining the true owner of a car particularly where the
    policy covers any person who may be driving the car with the
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    owner’s consent.   ***   The status, number and character of the
    persons who are likely to be driving the car with the owner’s
    permission are also material to risk.’ ”    Safeway Insurance Co.
    v. Duran, 
    74 Ill. App. 3d 846
    , 850-51, 
    393 N.E.2d 688
     (1979)
    (quoting Government Employees Insurance Co. v. Dennis, 
    90 Ill. App. 2d 356
    , 365, 
    232 N.E.2d 750
     (1967)).    There is no doubt
    Baker had been sufficiently notified that Devin’s status as an
    operator, i.e., driver, was of great relevance.
    As previously stated, it is well established that drivers
    under the age of 25 are involved in accidents with much greater
    frequency.   Devin fell into the increased-risk category because
    he was 17 years old when he obtained his learner’s permit.    Once
    Devin began operating Baker’s vehicle, the insurance policy
    failed to adequately provide for UAIC’s increased risk exposure.
    Raniere’s deposition testimony demonstrated that the addition of
    Devin as a driver on Baker’s policy would have resulted in an
    increased premium of $845.
    We, therefore, conclude that Baker generated material
    misrepresentations when she failed to notify UAIC that Devin was
    operating the insured vehicle.    The facts demonstrate that Devin
    was not merely a passive user; thus, even if his use was
    permitted, the insurance coverage did not extend to his regular
    operation of the vehicle.    The policy provided that a
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    misrepresentation would cause the policy to be “null and void and
    of no benefit” and that a fraudulent statement or omission in
    relation to a benefit “sought under this policy or any renewal of
    this policy” would result in “no coverage or benefit.”
    Consequently, UAIC was within its rights to rescind Baker’s
    policy.
    II. Waiver of Rescission Rights
    ASI contends UAIC waived any right it had to rescind Baker’s
    policy because UAIC failed to promptly act on those rights when
    UAIC first learned Devin was driving the insured vehicle, instead
    waiting nine months until Devin’s second accident before
    rescinding the policy.   ASI further contends the trial court
    improperly relied upon section 154 of the Code to conclude UAIC
    acted to rescind the policy within the applicable one-year time
    period.
    Rescission is the cancellation of a contract thereby
    restoring the parties to their initial status.   Illinois State
    Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 
    355 Ill. App. 3d 156
    , 165, 
    821 N.E.2d 706
     (2004) (citing Horan v. Blowitz,
    
    13 Ill. 2d 126
    , 132, 
    148 N.E.2d 445
     (1958)).   Section 154 of the
    Code provides:
    “With respect to a policy of insurance as defined in
    subsection (a), (b), or (c) of Section 143.13, except
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    life, accident and health, fidelity and surety, and
    ocean marine policies, a policy or policy renewal shall
    not be rescinded after the policy has been in effect
    for one year or one policy term, whichever is less.”
    215 ILCS 5/154 (West 2002).
    “[A] material representation under section 154 *** renders the
    policy voidable, not void ab initio, and an insurer can waive
    this right if it does not invoke it promptly.”    Coregis, 
    355 Ill. App. 3d at 167
    .    In Coregis, this court noted that, while not
    applicable to the facts of that case, the legislature “has since
    spoken as to the outer limit of what constitutes promptness by
    imposing a one-year time limit within which an insurer must act
    to void a policy based upon a material misrepresentation under
    section 154.”     Id. at n.4.
    Contrary to ASI’s argument, UAIC rescinded Baker’s insurance
    policy within the proscribed time period.    The policy was first
    issued on April 9, 2003, and it was rescinded on March 15, 2004.
    ASI’s construction of section 154 impermissibly restricts the
    statute.    The statute does not merely create a bar for when an
    insurance policy can no longer be rescinded.    As stated in
    Coregis, the legislature created a time period, namely, one year,
    that satisfies “prompt” rescission.
    Moreover, Baker’s policy itself supports UAIC’s rescission.
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    The conditions section of the insurance policy said:
    “Notice to any agent or knowledge possessed by any
    agent or by any other person shall not effect a waiver
    or a change in any part of this policy or stop the
    Company from asserting any right under the terms of
    this policy; nor shall the terms of this policy be
    waived or changed, except by endorsement issued to form
    a part of this policy, signed by a duly authorized
    representative of the Company.”
    The insurance policy expressly reserved UAIC’s rescission rights
    despite its knowledge in June 2003 that Devin was driving the
    insured vehicle.
    We, therefore, conclude that UAIC did not waive its
    rescission rights.
    CONCLUSION
    Because Baker materially misrepresented the fact that Devin
    was an operator of her insured vehicle and UAIC acted within the
    one-year time limit, UAIC properly rescinded Baker’s insurance
    policy.   As a result, we affirm the judgment of the trial court
    granting summary judgment in favor of UAIC.
    Affirmed.
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    REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
    AMERICAN SERVICE INSURANCE COMPANY,
    Plaintiff-Appellant,
    v.
    UNITED AUTOMOBILE INSURANCE COMPANY,
    Defendant-Appellee.
    No. 1-09-3070
    Appellate Court of Illinois
    First District, FIRST DIVISION
    April 18, 2011
    JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
    Presiding Justice Hall and Justice Hoffman concurred in the
    judgment and opinion.
    Appeal from the Circuit Court of Cook County.
    The Hon. Kathleen M. Pantle, Judge Presiding.
    COUNSEL FOR APPELLANT
    Newman Raiz, LLC, Chicago, IL 60603
    OF COUNSEL: James P. Newman and William H. Ransom
    COUNSEL FOR APPELLEE
    Shelist Law Firm LLC, Chicago, IL 60610
    OF COUNSEL: Samuel A. Shelist
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