Mid-Century Insurance Company v. Founders Insurance Company ( 2010 )

FIRST DIVISION
September 24, 2010
No. 1-09-1858
MID-CENTURY INSURANCE COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 07 CH 31152
)
FOUNDERS INSURANCE COMPANY, )
)
Defendant-Appellee, )
)
)
(Bryan Berry, Daniella Berry, )
Lisa Villarreal, ) The Honorable
) Rita Mary Novak,
Defendants). ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
The circuit court granted summary judgment to defendant
Founders Insurance Company on its counterclaim in a declaratory
action filed by plaintiff Mid-Century Insurance Company
contesting its duty to indemnify its insured for liability
arising from a traffic accident. Each insurance company provided
automobile insurance to Bryan and Daniella Berry, who are not
parties to this appeal, having signed a stipulation not to
contest the declaratory judgment action. The underlying suit
arose when Bryan Berry, while driving his Chevrolet Cavalier,
collided with Lisa Villarreal, a pedestrian, on February 23,
2005. Prior to the accident, Founders had issued an automobile
1-09-1858
insurance policy covering the Berrys' Cavalier. The Berrys also
held an insurance policy with Mid-Century, which they believed
covered their Dodge Durango; however, Mid-Century issued the
policy listing the Cavalier as the covered vehicle. Lisa
Villarreal filed a personal injury suit against Bryan, which
Founders settled for $100,000. Following the filing of cross-
motions for summary judgment, Judge Rita Mary Novak found in
favor of Founders on its counterclaim, ruling that Mid-Century
owed an equitable contribution of $50,000 for the settlement. We
hold that equitable contribution cannot be imposed on Mid-Century
because the insurance contract between the Berrys and Mid-Century
did not provide coverage for the Cavalier at the time of Bryan's
accident. We enter summary judgment in favor of Mid-Century in
its declaratory action and reverse.
BACKGROUND
In an evidence deposition, Daniella Berry testified that
prior to 2005, the Berrys insured both their Chevrolet Cavalier
and their Dodge Durango with Mid-Century under separate policies.
Each policy came up for renewal in January 2005. The Berrys
decided to allow the insurance policy on the Cavalier to lapse in
February by not paying the premium. On February 7, 2005, the
Berrys were issued a binder for an automobile policy by Founders
covering the Cavalier. The Founders policy was issued the
2
1-09-1858
following day. The Berrys intended to continue the coverage with
Mid-Century on the Durango.
In its amended complaint for a declaratory judgment, Mid-
Century admitted that it cancelled the Berrys' policy on the
Cavalier on February 2, 2005, for nonpayment of premiums. While
Mid-Century points to the "undisputed fact" that Daniella's
"intent [was] to let the policy for the Chevy Cavalier vehicle
operated by her husband, involved in the February 23, 2005[,]
motor vehicle occurrence lapse," its sole mention of the Durango
policy in its motion for summary judgment is relegated to a
footnote: "Daniella and Bryan Berry had a policy of insurance
with Mid-Century insuring another vehicle, a Durango[,] which is
not at issue in this litigation."
According to Daniella's deposition testimony, sometime in
early February 2005, a Mid-Century agent informed the Berrys via
a telephone call that due to the agent's error, the policy
covering their Durango had lapsed at the same time as the policy
covering the Cavalier. The agent instructed the Berrys to send
in a payment of $250 to Mid-Century to reinstate the Durango
policy. After making the payment, the Berrys received an
insurance card from Mid-Century, listing the Durango as the
covered vehicle. However, Mid-Century's declaration of
insurance, dated February 10, 2005, and titled a "reinstatement,"
3
1-09-1858
listed the Cavalier as the insured vehicle, which, though mailed
to the Berrys, went unread.
On February 23, 2005, Bryan, while driving the Cavalier,
collided with Lisa Villarreal, a pedestrian. Bryan duly reported
the accident to Founders. On March 14, 2005, Daniella cancelled
the Mid-Century policy, which she believed covered the Durango,
to obtain coverage for both vehicles from a single insurance
company. Mid-Century's notice of cancellation, issued March 14,
2005, listed the Cavalier as the covered vehicle.
On December 22, 2006, Lisa Villarreal filed suit against
Bryan for the personal injuries she received in the accident. In
March 2007, Bryan sent Mid-Century a copy of the Villarreal
lawsuit involving the Cavalier. In April 2007, Mid-Century sent
Bryan a letter denying coverage for the February 23, 2005,
accident. On September 27, 2007, Ms. Villarreal settled her
lawsuit against Bryan for $100,000, the per-person liability
limit under the Founders policy, which Founders satisfied on
October 16, 2007. The Mid-Century policy provided the same
liability limit.
In April 2008, Mid-Century filed its declaratory action, in
which Founders filed its counterclaim for equitable contribution.
Judge Novak, relying on the Illinois Supreme Court decision in
Copley v. Pekin Insurance Co., 111 Ill. 2d 76, 488 N.E.2d 10044
1-09-1858
(1986), ruled that equitable contribution applied and held for
Founders. Mid-Century timely appeals.
ANALYSIS
Summary judgment is warranted when "the pleadings,
depositions, and admissions on file, together with any
affidavits, when viewed in the light most favorable to the
nonmovant, reveal there is no genuine issue of material fact and
that the movant is entitled to judgment as a matter of law."
Midwest Trust Services, Inc. v. Catholic Health Partners
Services, 392 Ill. App. 3d 204, 209, 910 N.E.2d 638 (2009),
citing 735 ILCS 5/2-1005(c) (West 2000). "When parties file
cross-motions for summary judgment, they concede the absence of a
genuine issue of material fact and invite the court to decide the
questions presented as a matter of law." Chicago Hospital Risk
Pooling Program v. Illinois State Medical Inter-Insurance
Exchange, 397 Ill. App. 3d 512, 525, 925 N.E.2d 1216 (2010). Our
review of a grant of summary judgment is de novo. Chicago
Hospital, 397 Ill. App. 3d at 525.
While Mid-Century's overall claim is that its policy
provided no coverage for the Berrys' Cavalier at the time of the
traffic accident, it asserts two narrower issues on appeal: (1)
the "automatic termination provision" in its policy voids
coverage for the accident; and (2) it received untimely notice of
5
1-09-1858
the accident. Founders responds that the circuit court properly
entered summary judgment on its counterclaim because the
"automatic termination provision" is ambiguous and not self-
executing and the circuit court properly rejected the "notice"
issue because reasonable notice was given under the
circumstances.
Overlapping Coverage Question
Setting aside for the moment the precise issues raised by
the appellant Mid-Century, we find it necessary to first address
on our de novo review whether this case falls within the holding
of our supreme court's decision in Copley v. Pekin Insurance Co.,
111 Ill. 2d 76, 488 N.E.2d 1004 (1986), which concerned policies
issued by two different insurance companies covering the same
property owned by the insured. The analysis under Copley raises
a threshold question: did the Mid-Century policy provide coverage
for the Durango or the Cavalier? Only if the Mid-Century policy,
reinstated on February 10, 2005, provided coverage for the
Cavalier would the rule in Copley apply because the Berrys'
Cavalier would then be covered by both the Mid-Century and
Founders policies. See Copley, 111 Ill. 2d. at 84 ("dividing
liability pro rata between insurers [when] an insured has
overlapping insurance coverage on his property").
Although the parties did not address this threshold issue of
6
1-09-1858
coverage in the trial court and both parties proceed before us
under the assumption that the two policies provided overlapping
insurance coverage, it is within our discretion to address this
possibly dispositive issue. See 155 Ill. 2d R. 366(a)(5) (a
reviewing court may, in its discretion, "enter any judgment and
make any order that ought to have been given or made, and make
any other and further orders and grant any relief"). In an
effort to refine the preliminary issue before us, prior to oral
argument, we directed the parties to file supplemental briefs on
whether there was a meeting of the minds between the Berrys and
Mid-Century to reinstate the lapsed insurance contract. The
supplemental briefs, however, fail to discuss the position the
Berrys would likely have taken on appeal. See People v. Givens,
237 Ill. 2d 311, 324, __ N.E.2d __ (2010) (" 'Our adversary
system is designed around the premise that the parties know what
is best for them, and are responsible for advancing the facts and
arguments entitling them to relief' "), quoting Greenlaw v.
United States, 554 U.S. 237, __, 171 L. Ed. 2d 399, 408, 128 S.
Ct. 2559, 2564 (2008).
While generally issues not raised at the circuit court level
are considered waived, "a reviewing court does not lack authority
to address unbriefed issues and may do so *** when a clear and
obvious error exists in the trial court proceedings." Givens,
7
1-09-1858
237 Ill. 2d at 325. " '[U]nder Rule 366 [citation], a reviewing
court may, in the exercise of its responsibility for a just
result, ignore consideration of waiver and decide a case on
grounds not properly raised or not raised at all by the
parties.' " City of Wyoming v. Liquor Control Comm'n, 48 Ill.
App. 3d 404, 407-08, 362 N.E.2d 1080 (1977), quoting Occidental
Chemical Co. v. Agri Profit Systems, Inc., 37 Ill. App. 3d 599,
603, 346 N.E.2d 485 (1975). In choosing to address an unbriefed
issue, we recognize that as a reviewing court, we must refrain
from doing so if the effect would be to transform us from jurist
to advocate. Givens, 237 Ill. 2d at 325, citing People v.
Rodriguez, 336 Ill. App. 3d 1, 14, 782 N.E.2d 718 (2002). That
is not our intention here.
Instead, our analysis is aimed at deciding whether equitable
contribution applies under the circumstances in this case. We
believe the passive role of the Berrys in the litigation below
skewed the circuit court's analysis from determining the
intention behind the "reinstatement" policy issued by Mid-Century
on February 10, 2005, to one centering on the counterclaim filed
by Founders.
We begin our analysis by addressing whether the insurance
contract entered into between the Berrys and Mid-Century provided
coverage for the Cavalier, as Mid-Century and Founders presume,
8
1-09-1858
or the Durango, as the Berrys and the agent for Mid-Century
agreed in seeking and making the premium payment, in order to
provide "for a just result and for the maintenance of a sound and
uniform body of precedent." Hux v. Raben, 38 Ill. 2d 223, 225,
230 N.E.2d 831 (1967). The issue of coverage is compelled by the
unchallenged testimony of Daniella that it was always the Berrys'
intention in February 2005 to continue coverage with Mid-Century
for the Durango only and the statement attributed to the Mid-
Century agent that upon the receipt of the Berrys' payment of
$250, the lapsed policy for the Durango would be reinstated.
"An insurance policy is a contract, and the general rules
governing the interpretation of other types of contracts also
govern the interpretation of insurance policies." Hobbs v.
Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17, 823
N.E.2d 561 (2005). It is the intent of the parties to a contract
that determines its scope. Hobbs, 214 Ill. 2d at 17. "To form a
valid contract between two parties, there must be mutual assent
by the contracting parties on the essential terms and conditions
of the subject about which they are contracting." Reese v.
Forsythe Mergers Group, Inc., 288 Ill. App. 3d 972, 979, 682
N.E.2d 208 (1997). "Where the facts are not in dispute, *** the
existence of a contract is a question of law, which the trial
court may decide on a motion for summary judgment and which this
9
1-09-1858
court may independently review." Reese, 288 Ill. App. 3d at 979.
The undisputed facts of this case compel us to consider
whether a mutual mistake of fact occurred between the Berrys and
Mid-Century that undermines the presumption of the two insurance
companies before us that the reinstated insurance policy by Mid-
Century afforded coverage to the Cavalier, rather than the
Durango. If a mutual mistake of fact occurred regarding the
coverage provided by the insurance contract, the contract will be
interpreted consistent with the intentions of the parties.
Beddow v. Hicks, 303 Ill. App. 247, 25 N.E.2d 93 (1940).
A mutual mistake of fact occurs when the parties reach a
good-faith agreement, but that agreement "is not expressed in the
written reduction of the agreement" due to error. Beynon
Building Corp. v. National Guardian Life Insurance Co., 118 Ill.
App. 3d 754, 760, 455 N.E.2d 246 (1983). "Thus, the mistake must
have existed at the time of the execution of the instrument, must
have been mutual and common to all parties, and must have been
such that the parties intended to say one thing but by the
written instrument expressed another." Beynon, 118 Ill. App. 3d
at 760.
There is no dispute that the Berrys sought to continue
coverage for only the Durango when both of their automobile
policies with Mid-Century were up for renewal in January 2005.
10
1-09-1858
The Berrys had an existing policy providing coverage for the
Durango and only needed to keep the premium current to continue
the coverage. The agent for Mid-Century that called the Berrys
regarding the lapse of their policy expressed the intention to
reinstate the Durango policy upon receipt of the premium payment.
Consistent with this shared intention between the Berrys and Mid-
Century that the reinstated policy would provide coverage for the
Durango, the Berrys received an insurance card from Mid-Century
that identified the Durango as the covered vehicle. The mistake
shared by the contracting parties is that the "reinstatement"
policy identified the Cavalier, rather than the Durango, as the
covered vehicle.1
If the Berrys were before us seeking to reform the Mid-
Century policy to provide coverage for the Durango, their
1
In fact, in its motion for summary judgment, Mid-Century
argued "it is undisputed that the Berrys chose to cancel their
policy with Mid Century insuring the vehicle Bryan Berry was
operating at the time of the February 23, 2005, motor vehicle
occurrence." Yet, Mid-Century failed to advance this position to
its logical conclusion that if the policy covering the Cavalier
was no longer in effect at the time of the accident, then the
policy that was reinstated covered the Durango, which Daniella
canceled in March 2005.
11
1-09-1858
contention would appear to be on solid legal ground. "Where the
contracting parties to a policy of insurance make a mistake and
the policy fails to express the real contract between them, and
provisions other than those intended are inserted or omitted,
equity has the right to grant relief by reformation of the
contract." Stoltz v. National Indemnity Co. of Omaha, Nebraska,
345 Ill. App. 495, 500-01, 104 N.E.2d 320 (1952), citing Beddow,
303 Ill. App. at 247. In Stoltz, the insured, in an action to
reform the insurance policy, contended that both parties to the
insurance contract understood a policy would issue to cover both
the plaintiff's tractor and the trailer. The plaintiff paid an
insurance premium based on the value of both the tractor and
trailer. Yet, because of a mistake on the part of the defendant
insurance company's agent, the issued policy omitted coverage for
the trailer. Stoltz, 345 Ill. App. at 500. Following a trial,
the trial court reformed the insurance policy, consistent with
the clear intent of the parties, to reflect the terms as
originally agreed upon by the parties, that is, to provide
coverage for the trailer as well. We affirmed. Stoltz, 345 Ill.
App. at 501.
The Berrys, as the insured under the Mid-Century policy,
however, are not before us, having stipulated to accept the
outcome in the declaratory action. Consequently, we do not have
12
1-09-1858
the benefit of all the parties to the Mid-Century policy " 'to
frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.' " Givens, 237
Ill. 2d at 323, quoting Greenlaw, 554 U.S. at __, 171 L. Ed. 2d
at 408, 128 S. Ct. at 2564. In this case, the "principle of
party presentation" does not apply with full force. Givens, 237
Ill. 2d at 323.
With the Berrys absent, Founders seeks to stand in the shoes
of the Berrys to enforce an insurance policy that, according to
its written terms, covered the Berrys' Cavalier at the time of
Bryan's accident. However, there can be no real dispute that the
actual agreement between the Berrys and Mid-Century was for
coverage of the Durango. It is also clear that the Berrys never
intended for the Cavalier to be covered under two different
insurance policies providing the same liability protection.
Their clear intention in February 2005 was to cover each vehicle
under different policies from separate insurance companies.
Founders, while claiming to stand in the shoes of the Berrys,
does not provide us with any reason that the Berrys, contrary to
their expressed intentions, would elect to have two automobile
insurance policies from two separate companies providing the same
liability limit of $100,000 per person. With identical policies
from two different insurance companies, the Berrys would be
13
1-09-1858
paying double premiums without receiving any additional benefit.
It seems clear that if the Berrys were before us, they would
likely take the same position they took before the circuit court:
the Mid-Century "reinstatement" policy was meant to provide
liability coverage for the Durango. Under slightly different
facts, the Berrys would likely assert a claim that the Mid-
Century policy should be reformed based upon their clear intent
at the time of the reinstatement of the Mid-Century policy. If
the two policies provided the same coverage for the Cavalier, it
would necessarily mean that the Durango was not covered by an
insurance policy during the time the Cavalier was covered by Mid-
Century and Founders. Had the accident occurred while Bryan had
been driving the Durango rather than the Cavalier, the Berrys,
rather than Founders, would be involved in this case, arguing for
reformation of the insurance contract consistent with the
intentions of the parties at the time the policy was reinstated,
i.e., arguing for coverage of the Durango to allow the Berrys to
seek indemnification under the policiy's liability protection.
Stolz, 345 Ill. App. at 501. We are unpersuaded that the mistake
by Mid-Century to list the covered vehicle as the Cavalier rather
than the Durango should give rise to a right in Founders to stand
in the shoes of the Berrys to seek enforcement of the Mid-Century
policy as written.
14
1-09-1858
The record before us is barren of any evidence, other than
the written policy itself, that the Mid-Century policy was meant
to provide coverage for the Cavalier. The Berrys provided no
such testimony and Mid-Century does not claim it understood the
Berrys, at the time they paid to reinstate the lapsed policy,
sought such coverage. The facts are not in dispute: the policy
with Mid-Century was reinstated on February 10, 2005, to continue
coverage for the Berrys' Durango. The insurance policy issued by
Mid-Century was not meant to provide coverage for the Cavalier;
rather, we conclude that a mutual mistake of fact as to the
vehicle covered occurred between Mid-Century and the Berrys, the
only parties to the insurance contract at the center of this
litigation. The evidence is uncontested that neither the Berrys
nor Mid-Century intended the Cavalier to be covered by the Mid-
Century policy. Though the issue on Mid-Century's duty to defend
and indemnify the Berrys had the Durango been involved in the
accident is not raised by the underlying lawsuit, that
possibility informs us on the real issue before us: whether the
supreme court's Copley decision triggers equitable contribution
under the circumstances present in this case.
In Copley, the insured, Copley, purchased a new fire
insurance policy over certain real property, but, at the time,
did not cancel his existing one. The two policies had different
15
1-09-1858
coverage limits. Following a fire while both policies were in
effect, the insurance company with the preexisting policy, Pekin,
denied Copley's claim for losses based on the common law doctrine
of cancellation by substitution. Copley, 111 Ill. 2d at 78.
Copley and the insurance company that issued the new policy,
Federated, sued Pekin, claiming Pekin was liable for its "pro
rata share of Copley's loss" that Federated paid and for the
additional loss Copley sustained under the greater coverage
provided by the Pekin policy. Copley, 111 Ill. 2d at 79. Pekin
maintained that the doctrine of cancellation by substitution
operated to cancel its policy, leaving only the Federated fire
policy. It was undisputed that Copley intended to carry only one
policy and had simply failed to act to cancel the Pekin policy.
Following a bench trial, the trial court held Pekin's policy
was in effect at the time of the fire. Pekin "had failed to
establish the requisites of the doctrine of cancellation by
substitution." Copley, 111 Ill. 2d at 79. An agent for Pekin
testified that "either a policy release signed by Copley or a
return of the actual policy itself" had to occur to effect a
cancellation. Copley, 111 Ill. 2d at 80-81. No portion of the
annual premium paid by the insured was returned prior to the
fire. Copley, 111 Ill. 2d at 81. When Federated processed
Copley's claim, it reminded him that the Pekin policy might still
16
1-09-1858
be in effect. Copley, 111 Ill. 2d at 82. Copley filed a claim
with Pekin three to four weeks later, which Pekin denied. Copley
returned the refund check from Pekin for the unused portion of
the annual premium he paid prior to the fire. Copley, 111 Ill.
2d at 81-82.
The appellate court took a contrary view regarding Pekin's
satisfaction of the doctrine of cancellation by substitution.
Copley, 111 Ill. 2d at 82. In reversing the appellate court, our
supreme court noted that an earlier appellate court decision had
written "that the doctrine of cancellation by substitution is now
disfavored in many jurisdictions. The [appellate] court found
that a clear trend exists toward dividing liability pro rata
between insurers if an insured has overlapping insurance coverage
on his property." Copley, 111 Ill. 2d at 84, citing Lee v. Ohio
Casualty Insurance Co., 58 Ill. App. 3d 1, 5, 373 N.E.2d 1027(1978).
Ultimately, the supreme court applied the general principles
of contract law to reject Pekin's position that the doctrine of
cancellation by substitution can be invoked by "the subjective
intent of one of the parties." Copley, 111 Ill. 2d at 85.
"Accordingly, we hold that insurance policies, like other
contracts, may be cancelled only in accordance with the terms of
the insurance contract, or through the mutual consent of the
17
1-09-1858
insurer and the insured." Copley, 111 Ill. 2d at 85.
Mid-Century's Cancellation Clause
For support of its first issue on appeal, Mid-Century relies
on the supreme court's reference in Copley to a cancellation "in
accordance with the terms of the insurance contract" (Copley, 111
Ill. 2d at 85), to claim that the cancellation clause in its
policy "voids coverage for the accident."
Although Mid-Century seeks to invoke the cancellation clause
of its policy, the cancellation clause has no application here
because, as we determined, the policy should have issued to
provide coverage for the Durango and, therefore, the cancellation
clause was never triggered by "other insurance *** obtained on
your insured car." The cancellation clause applied only if
coverage applied to the Cavalier, but the Berrys never sought
such coverage under the "reinstatement" policy issued by Mid-
Century. Because the cancellation clause was never invoked, we
need not resolve the validity of the cancellation clause itself.2
We do observe, however, that a shared intent of the
2
Founders challenges as ambiguous the cancellation clause
of the Mid-Century policy under the circumstances present here
because the Founders policy came into existence prior to the
reinstatement of the Mid-Century policy.
18
1-09-1858
contracting parties evidenced by an insurance contract's
cancellation clause does not necessarily transfer to the moment
when "other insurance is obtained." If we were to apply the
cancellation clause literally based on the purchase of the
Founders policy, a strong argument could be made that Mid-Century
nullified the cancellation by accepting the premium payment by
the Berrys in February 2005, even though it was unaware of the
Founders policy. See Librizzi v. State Farm Fire & Casualty Co.,
236 Ill. App. 3d 582, 603 N.E.2d 821 (1992) (termination of
policy due to failure to pay renewal premium was not cancellation
and was not subject to cancellation provisions of policy). Of
course, just as Mid-Century was unaware of the Founders policy,
the Berrys had no actual knowledge that Mid-Century had not
complied with their wishes to reinstate the coverage for the
Durango. Mid-Century's mistaken reinstatement of the coverage
for the Cavalier is the basis for its claim that the cancellation
clause regarding other insurance coverage for the "same vehicle"
was triggered. We see no reason to wade through the thicket of
issues the application of the cancellation clause might entail
under the facts before us. We simply note that Mid-Century seeks
to benefit from a mistake of its own making in asserting that its
cancellation clause was triggered only because Mid-Century failed
to comply with the wishes of its insured. See Pittway Corp. v.
19
1-09-1858
American Motorists Insurance Co., 56 Ill. App. 3d 338, 346-47,
370 N.E.2d 1271 (1977) (an insurance agent must act with
competence and skill when procuring an insurance policy according
to the wishes of the client).
It is also fair to say that the requisite mutual consent,
required by our supreme court in Copley to cancel the policy as
written to provide coverage of the Cavalier, is doubtful.
"[M]utual consent requires an agreement between the insured and
the insurer that both parties are to be excused from the
insurance contract." Copley, 111 Ill. 2d at 86. Under Copley,
it would seem the cancellation clause of a policy requiring
mutual assent cannot be triggered based on events unbeknownst to
the parties to the contract as the facts here demonstrate.
"Strict compliance with insurance policy provisions governing
cancellation is required to effect a valid cancellation under the
policy." Copley, 111 Ill. 2d at 86.
To be clear, we find the cancellation clause does not apply
here because the "reinstatement" policy of Mid-Century was not
meant to provide coverage for the Berrys' Cavalier. We conclude
that equitable contribution does not apply under the facts of
this case because, unlike in Copley, the two policies at issue
did not cover the same property owned by the Berrys. Copley, 111
Ill. 2d at 86. Based on the clear intention of the parties to
20
1-09-1858
the insurance contract, the Mid-Century "reinstatement" policy,
dated February 10, 2005, following the Berrys' payment of the
requested premium, should have provided coverage for the Durango,
not the Cavalier. Consequently, there is no basis to apportion
with Mid-Century, the liability that Founders incurred from the
traffic accident involving the Cavalier because the insurance
coverage provided by the two policies was not overlapping.
Copley, 111 Ill. 2d at 86. Because we find in favor of Mid-
Century on its overall claim that the reinstated policy in
February 2005 provided no coverage for the Cavalier, Mid-
Century's second issue for relief is rendered moot. See Condon
v. American Telephone & Telegraph Co., 136 Ill. 2d 95, 100-01,
554 N.E.2d 206 (1990) (second challenge under statute was
rendered moot when first claim was accepted).
CONCLUSION
We reverse the circuit court's summary judgment order
finding in favor of Founders on its counterclaim that Mid-Century
pay an equitable contribution of $50,000 in the settlement of the
underlying suit where the two policies did not provide liability
coverage for the same property. Instead, we grant Mid-Century's
motion for summary judgment.
Reversed.
21
1-09-1858
MCBRIDE and R. GORDON, JJ., concur.
22
1-09-1858
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
__________________________________________________________________________
MID-CENTURY INSURANCE COMPANY,
Plaintiff-Appellant,
v.
FOUNDERS INSURANCE COMPANY,
Defendant-Appellee,
(Bryan Berry, Daniella Berry, Lisa Villarreal,
Defendants).
________________________________________________________________
No. 1-09-1858
Appellate Court of Illinois
First District, Sixth Division
Filed: September 24, 2010
_________________________________________________________________
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
MCBRIDE and R. GORDON, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Rita Mary Novak, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Lewis Brisbois Bisgaard & Smith LLP
APPELLANT Danny L. Worker
Lisa M. Taylor
23
1-09-1858
Jonathan L. Schwartz
Siobhan M. Murphy
550 West Adams Street, Suite 300
Chicago, IL 60661
For DEFENDANT- The Law Office of Shari Shelmadine
APPELLEE Shari Shelmadine
53 West Jackson Blvd., Suite 1209
Chicago, IL 60604
24