Wells v. State Farm Fire & Casualty Co. , 2020 IL App (1st) 190631 ( 2020 )

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Appellate Court Date: 2020.07.09
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Wells v. State Farm Fire & Casualty Co., 2020 IL App (1st) 190631Appellate Court GIA WELLS, Plaintiff-Appellant and Cross-Appellee, v. STATE
Caption FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee
and Cross-Appellant.
District & No. First District, Second Division
No. 1-19-0631
Filed April 28, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 2017-L-11978;
Review the Hon. James E. Snyder, Judge, presiding.
Judgment Affirmed.
Counsel on Edward Seward, of Seward & Szczygiel, P.C., of Chicago, for
Appeal appellant.
Michael Resis and Joseph P. Carlasare, of SmithAmundsen LLC, of
Chicago, for appellee.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and
opinion.
OPINION
¶1 In May 2016, plaintiff Gia Wells submitted a claim to her insurer, defendant State Farm
Fire and Casualty Co. (State Farm), after discovering water in the basement and the second-
floor bathroom of her property. Ultimately, State Farm denied coverage, and Gia filed a
second-amended, two-count complaint alleging that State Farm (1) breached the insurance
contract and (2) acted vexatiously and unreasonably in denying her claim, in violation of the
Illinois Insurance Code (Code) (215 ILCS 5/155 (West 2016)). The circuit court granted State
Farm’s motion to dismiss Gia’s contention under the Code and permitted her to voluntarily
dismiss the remaining count.
¶2 On appeal, Gia asserts the court erroneously dismissed her claim that State Farm acted
vexatiously and unreasonably in denying coverage. State Farm contends on cross-appeal that
the court entered an improper nunc pro tunc order vacating its prior finding that Gia willfully
failed to appear for her deposition. We affirm the court’s judgment.
¶3 I. Background
¶4 A. The Policy
¶5 Charles Wottrich, Gia’s first husband, procured the policy at issue for the house located at
3740 Merioneth Drive in the Village of Crete (property). “Coverage A” applied to the dwelling,
while “Coverage B” applied to personal property. In addition, Coverage B covered loss caused
by the following:
“14. Freezing of a plumbing, heating, air conditioning or automatic fire protective
sprinkler system, or of a household appliance.
This peril does not include loss on the residence premises while the dwelling is
vacant, unoccupied or being constructed, unless you have used reasonable care to:
a. maintain heat in the building; or
b. shut off the water supply and drain the system and appliances of water.”
Both Coverage A and Coverage B incorporated the exclusions provided in “Section 1—Losses
Not Insured,” which similarly stated as follows:
“1. We do not insure for any loss to the property described in Coverage A which
consists of, or is directly and immediately caused by, one or more of the perils listed in
items a. through n. below ***:
***
b. freezing of a plumbing, heating, air conditioning or automatic fire protective
sprinkler system, or of a household appliance, or by discharge, leakage or overflow
from within the system or appliance caused by freezing. This exclusion only applies
while the dwelling is vacant, unoccupied or being constructed. This exclusion does
not apply if you have used reasonable care to:
(1) maintain heat in the building; or
(2) shut off the water supply and drain the system and appliances of water.”
We note that the policy also contained exclusions for corrosion and vandalism to the dwelling
while vacant.
¶6 Finally, the policy contained the following condition:
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“Concealment or Fraud. This policy is void as to you and any other insured, if you
or any other insured under this policy has intentionally concealed or misrepresented
any material fact or circumstance relating to this insurance, whether before or after a
loss.”
¶7 B. The Insurance Claim
¶8 After Gia reported the flooding to State Farm in May 2016, it hired EFI Global, Inc., (EFI)
to assist in the investigation. EFI’s initial report, published in January 2017, noted that the
waterline on the basement walls was 73 inches high and it was unclear how often the two-story
residence was occupied. The report found that the gas used at the property was inadequate to
appropriately heat it and that water froze inside the pipes, causing a pipe failure in the second-
floor bathroom. Ultimately, water flowed from there into the basement.
¶9 In April 2017, EFI published a report addendum at the direction of State Farm based on
the receipt of additional information. Specifically, “the utility-supplied water service to the
residence had been discontinued sometime prior to 2017.” The addendum determined that
“utility-supplied water could not have been the source of the flooding,” that the volume of
water that could have escaped from the second-floor was insufficient to cause the basement
flooding, and that it was improbable that the ground water would have caused that extent of
flooding. Additionally, EFI concluded that fractures to the piping in the basement caused the
basement to flood but that the cause of the fractures could not be determined, in part because
of corrosion on the pipes. EFI’s addendum did not identify potential causes for the fractures.
EFI stated, “[i]t is highly probable that the flooding of the basement resulted in the loss of
heating to the residence, which in turn resulted in the freezing in the upstairs piping.” After
State Farm asked EFI to discuss the candidate causes of the initial piping fracture in the
basement, EFI published a second addendum in May 2017. EFI identified the potential causes
as freezing, corrosion, and vandalism.
¶ 10 Meanwhile, on April 19, 2017, Gia submitted to examination under oath. Gia testified that,
when Charles died in 2006, she continued to use the property as her address but slept at her
mother’s home. From 2006 to 2012, she went to the property every day. She reduced visits to
once or twice a week in 2012. According to Gia, she married Mark Wells on December 9,
2015, and lived full-time at his home in Steger, Illinois, but never officially moved in with
him. She kept less of her personal belongings at Mark’s house than at her mother’s house and
kept most of her belongings at the property.
¶ 11 Gia testified that, during the first week of January 2016, she and Mark went on their
honeymoon to Mexico for 7 to 10 days. The December before the honeymoon, she had stopped
by the property to pick up clothing and change the furnace filter. Additionally, the heat was
left on an automatic setting. She did not recall going to the property again until May 2016.
¶ 12 At that time, Gia went to the property to clean and prepare for remodeling. In order to
transfer from well water to city water, the property was repiped before Charles died in 2006.
As of May 2016, however, Gia had not yet had the walls and floors repaired. When Gia went
to the property, she saw that the basement was full of water. After that day, Gia went to the
property to pick up her mail once or twice a week but did not always go inside. Mark went to
the property more frequently but similarly did not go inside every time.
¶ 13 Gia acknowledged that a lien had been placed on the property at some point for failing to
pay a water bill, but she subsequently paid the bill. Additionally, Gia testified that she tried to
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obtain all of the water bills at State Farm’s request but “they,” apparently referring to the
Village of Crete (Crete), did not have them. Gia testified that she never had the city water
turned off, although Crete had turned it off due to nonpayment, and her well water was never
disconnected.
¶ 14 On July 10, 2017, State Farm determined that the loss was not covered. According to State
Farm, its investigation revealed that the property was unoccupied at the time of the loss and
that Gia neither maintained heat nor turned off the water supply and drained the system and
appliances. While the precise cause of the piping fracture in the basement could not be
determined, EFI identified three candidate causes, all of which would have been excluded
under the policy.
¶ 15 State Farm also found Gia violated the concealment and fraud provision with respect to the
duration of her travels, the time spent at the property and her ability to obtain information
regarding water service to the property. State Farm further noted that, while Gia represented
that she and Mark married in December 2015, both the marriage certificate and Mark stated
that the marriage occurred in December 2014. 1
¶ 16 C. The Proceedings
¶ 17 Gia then commenced this action on November 22, 2017, and ultimately filed a second-
amended complaint, alleging that State Farm breached the insurance contract and acted
vexatiously and unreasonably in denying coverage, in violation of section 155 of the Code.
Gia alleged that the State Farm representative who inspected the property in June 2016 noted
that she lived there part-time and intended to remodel the property to live there full-time.
Additionally, that representative noted that Gia had been on a honeymoon for the five months
preceding her discovery of the loss and observed that personal property was present. Despite
this, State Farm improperly determined that the property was unoccupied.
¶ 18 Gia further alleged that in January 2017, several months after the loss was reported, State
Farm determined that an expert opinion was necessary. EFI issued an initial report finding that
frozen pipes in the upstairs bathroom caused the loss but was directed to make a different
determination after State Farm learned that municipal water service had been cut off prior to
the loss. EFI then issued an addendum, which concluded that the initial report was erroneous
and that fractures had occurred in the basement piping. According to Gia, State Farm,
“[d]issatisfied with [EFI’s] inability to determine the cause of the fracture of the piping in the
basement,” then insisted that EFI issue a second addendum identifying the cause of the
fractures. EFI’s second addendum stated that EFI could not eliminate corrosion, freezing, or
vandalism as potential causes. Gia stated that, “[d]espite concluding that the claim would be
denied in June 2016, [State Farm] did not deny [Gia’s] claim until more than one year later.”
¶ 19 State Farm filed a combined motion to dismiss (735 ILCS 5/2-619.1 (West 2016)) Gia’s
contention under section 155 of the Code, arguing that Gia was unable to allege any specific
facts to support her conclusion that State Farm’s conduct was vexatious and unreasonable.
Instead, she provided only a conclusory allegation that State Farm determined her claim would
be denied in June 2016. State Farm also argued that its thorough investigation rebutted that
conclusion. Additionally, State Farm had legitimate policy defenses based on not only the
unoccupied dwelling exclusion but the concealment or fraud condition, as Gia and Mark had
1
After this action was filed, Gia admitted that she and Mark were married in December 2014.
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made several misrepresentations. At a minimum, a bona fide dispute as to coverage existed,
precluding judgment in Gia’s favor. State Farm’s attachments included the policy, EFI’s
reports, the transcript of Gia’s testimony, and an affidavit executed by State Farm claims
specialist Jacob Thompson.
¶ 20 According to Thompson, Mark stated during an inspection on June 3, 2016, that the
property was empty for about five months preceding the loss and that he and Gia were on an
extended vacation from December 2015 to May 2016. Mark later stated in a voice-mail
message that they left for vacation in November 2015. At an inspection in January 2017, Mark
said they had left for vacation on January 4, 2016.
¶ 21 Thompson also alleged that, at the June 2016 inspection, Mark said that Crete had turned
the water off in their absence upon noticing large usage. Mark also said that Gia could not
provide water bills because she paid them in cash. At the January 2017 inspection, Mark added
that, while Gia had requested that the water be turned off in 2014, the water was not turned off
at that time. He also said they had not been billed for water service since 2014. In contrast, an
employee from the water department told Thompson that water was turned off in June 2014
for nonpayment and that usage between 2006 and 2014 was minimal. The water department
employee also said that, when Crete notified Gia of low water usage in 2009, she submitted a
response explaining that usage was low because she had moved out in 2007.
¶ 22 In response to State Farm’s motion, Gia argued that the second-amended complaint showed
State Farm feigned a dispute. Yet, Gia did not attach a counter-affidavit to her response.
¶ 23 On February 27, 2019, the circuit court granted State Farm’s motion to dismiss because a
bona fide dispute existed as to coverage. The court found the second-amended complaint’s
allegation that Gia was living at the property on a part time basis on June 3, 2016, created “a
bona fide dispute about coverage and whether the dwelling was unoccupied under the policy.”
Gia moved to voluntarily dismiss the breach of contract count without prejudice the same day.
¶ 24 On February 28, 2019, the circuit court granted Gia’s motion to voluntarily dismiss the
remaining count, over State Farm’s objection, and found that Gia willfully failed to appear for
her deposition as required by a previous order. Specifically, the prior order had required Gia
to appear by that day. On March 18, 2019, Gia moved to vacate the court’s finding of
willfulness. She argued that the time to comply with the court’s earlier order to appear for a
deposition had not yet expired at the time of the court’s finding of willfulness. Gia also argued
that she offered to appear for her deposition within the time allotted but that State Farm’s
attorney was unable to conduct the deposition then.
¶ 25 At a hearing on March 28, 2019, State Farm argued that the court lacked jurisdiction to
vacate the finding of willfulness because the case was nonsuited. State Farm also challenged
the facts underlying Gia’s motion to vacate. The court nonetheless granted Gia’s motion,
stating, “I think there is jurisdiction due to the fact that I’m reinstating the case for that purpose
to change that order non [sic] pro tunc to that day.” Additionally, the court found “[i]t’s just
the case that she had until the end of that day to appear for that deposition. They non-suited
the case before the end of that day and that’s fine.” Gia then filed a notice of appeal from the
court’s dismissal of her claim under section 155, and State Farm filed a notice of cross-appeal
from the order vacating the finding of willfulness.
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¶ 26 II. Analysis
¶ 27 A. Dismissal
¶ 28 On appeal, Wells asserts that the circuit court improperly dismissed her claim under section
155 because State Farm lacked a bona fide dispute as to coverage and, thus, acted vexatiously
and unreasonably in denying coverage. While an abuse of discretion standard ordinarily applies
to the review of a circuit court’s ruling under section 155, we apply the standard of review
appropriate for a grant of judgment on the pleadings where the court has entered such a
judgment. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 159-60
(1999). We generally review the circuit court’s ruling on a section 2-619.1 motion de novo.
Soto v. Great America LLC, 2020 IL App (2d) 180911, ¶ 10. Thus, we may affirm the court’s
judgment on any basis in the record, regardless of the court’s reasoning. O’Callaghan v.
Satherlie, 2015 IL App (1st) 142152, ¶ 17. We note, however, that the result in this instance
would be the same under any standard of review. See Evergreen Real Estate Services, LLC v.
Hanover Insurance Co., 2019 IL App (1st) 181867, ¶ 35 (acknowledging a split in authority
as to whether a ruling under section 155 in the summary judgment context should be reviewed
de novo or for an abuse of discretion).
¶ 29 A section 2-619.1 motion permits a party to move for dismissal under both section 2-615
and section 2-619. Garlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 24. In
reviewing a section 2-615 motion, we consider whether the complaint’s allegations, when
taken as true and considered in the light most favorable to the plaintiff, are sufficient to state a
cause of action. Midwest Medical Records Ass’n v. Brown, 2018 IL App (1st) 163230, ¶ 12.
We can also consider matters subject to judicial notice, judicial admissions in the record, and
exhibits attached to the complaint. Id. In contrast, legal or factual conclusions, unsupported by
specific factual allegations, will not withstand a section 2-615 motion. Id.¶ 30 A motion to dismiss under section 2-619 admits a claim’s legal sufficiency while raising
defenses, defects, or other affirmative matters that appear outside the face of the complaint.
Garlick, 2018 IL App (2d) 171013, ¶ 24. A section 2-619 motion admits as true not only all
well-pleaded facts but all reasonable inferences to be gleaned from the facts. Cooney v.
Rossiter, 2012 IL 113227, ¶ 17. Additionally, section 2-619 permits a movant to provide an
affidavit supporting the motion if grounds for dismissal do not appear on the face of the motion,
provided that the affidavit does not challenge the complaint’s allegations. King v. City of
Chicago, 324 Ill. App. 3d 856, 859 (2001). “When supporting affidavits have not been
challenged or contradicted by counter-affidavits or other appropriate means, the facts stated
therein are deemed admitted.” Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). In considering a
section 2-619 motion to dismiss, we must view the pleadings and supporting materials in the
light most favorable to the nonmovant. Horlacher v. Cohen, 2017 IL App (1st) 162712, ¶ 50.
¶ 31 Section 155 of the Code states as follows:
“In any action by or against a company wherein there is in issue the liability of a
company on a policy or policies of insurance or the amount of the loss payable
thereunder, or for an unreasonable delay in settling a claim, and it appears to the court
that such action or delay is vexatious and unreasonable, the court may allow as part of
the taxable costs in the action reasonable attorney fees, other costs, plus an amount not
to exceed any one of the following amounts[.]” (Emphasis added.) 215 ILCS 5/155
(West 2016).
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To state a claim under section 155, the insured must provide a modicum of factual support; she
cannot merely allege that the insurer acted vexatiously and unreasonably. Cook v. AAA Life
Insurance Co., 2014 IL App (1st) 123700, ¶ 49.
¶ 32 Generally, no single factor is dispositive in determining whether an insurer’s conduct was
vexatious or unreasonable. Id. ¶ 48. Relevant factors include the insurer’s attitude, whether the
insured was forced to file suit, whether she was deprived of the use of her property, the extent
of the insurer’s investigation, and the sufficiency of communications between the insurer and
the insured. Id. That being said, section 155 cannot be invoked for an insurer’s assertion of a
legitimate policy defense or its denial of coverage based on a policy’s express wording.
Scudella v. Illinois Farmers Insurance Co., 174 Ill. App. 3d 245, 253 (1988). Furthermore, an
insurer has not acted vexatiously or unreasonably where it reasonably relied on evidence
sufficient to create a bona fide dispute. Illinois Founders Insurance Co. v. Williams, 2015 IL
App (1st) 122481, ¶ 32. “[B]ona fide” means “genuine, actual, real and not feigned.” (Internal
quotation marks omitted.) Cook, 2014 IL App (1st) 123700, ¶ 49; see also Rogers Cartage Co.
v. Travelers Indemnity Co., 2018 IL App (5th) 160098, ¶ 97 (stating that “an insurer may not
overcome section 155 damages by cloaking its bad faith under the guise of a bona fide
dispute”).
¶ 33 We find the second-amended complaint’s allegations were insufficient to establish that
State Farm acted vexatiously and unreasonably, as required to survive section 2-615. Gia
alleged that “[o]n June 3, 2016, [State Farm] noted that Gia had been on an extended
honeymoon for approximately five months prior to discovering the Loss.” She also alleged that
on the same date, State Farm noted that Gia had been living at the property part time prior to
the loss. As Gia acknowledges, the policy did not define what it means for the property to be
unoccupied. Given Gia’s limited use of the property, a bona fide dispute existed as to whether
the property was unoccupied at the time of the loss. Gia’s alleged intention to remodel the
property and live there full-time in the future did not mean that she occupied the property at
the time of the loss. Moreover, State Farm’s observation of personal property would not alone
show that she occupied the property. We further note that, while the policy required Gia to
maintain heat in the building or “shut off the water supply and drain the system and appliances
of water” (emphasis added), Gia’s pleading did not specifically allege that she had taken such
measures.
¶ 34 Gia’s remaining allegations do not show unreasonable or vexatious conduct either. Gia
alleged that, after State Farm learned municipal water service had been turned off, State Farm
asked EFI to revisit its initial determination that frozen pipes in an upstairs bathroom caused
the flooding. This was entirely consistent with State Farm’s objective of determining what
actually caused the loss. While Gia alleged that “[State Farm] insisted that [EFI] issue another
addendum opining as to the cause of the fracture in the piping in the basement,” Gia did not
specifically allege that State Farm ordered EFI to reach any particular determination. Thus,
State Farm’s request would have been redundant at best. Furthermore, Gia alleged that State
Farm did not hire experts to investigate until six months after she reported the loss. She did not
deny, however, that State Farm pursued other lines of investigation, such as interviewing Gia
and Mark or examining the property. Cf. Buais v. Safeway Insurance Co., 275 Ill. App. 3d 587,
592-93 (1995) (reversing the circuit court’s dismissal under section 2-615 of the plaintiff’s
section 155 claim where, taking the factual allegations and reasonable inferences therefrom as
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true, the policyholder claimed that the insurer refused to evaluate, investigate, or discuss a
claim when there was no bona fide dispute about coverage).
¶ 35 The second-amended complaint also contained factual conclusions that were insufficient
to survive a section 2-615 motion. Gia alleged that State farm was “[dissatisfied] with [EFI’s]
inability to determine the cause of the fracture of the piping in the basement.” Additionally,
“[a]s of June 2016, [State Farm] determined that [Gia’s] claim would be denied due to [State
Farm’s] conclusion that the Dwelling was unoccupied.” She also alleged that “[State Farm]
never intended to pay [Gia’s] claim.” Furthermore, Gia alleged that State Farm required Gia
to produce financial records and submit to an examination under oath solely to support its prior
decision to deny her claim. Yet, none of these allegations purport to be based on any particular
statement of State Farm or any other source. Such conclusions, unsupported by specific factual
allegations, are insufficient to satisfy section 2-615. Midwest Medical Records Ass’n, 2018 IL
App (1st) 163230, ¶ 12. Construing the allegations in the light most favorable to Gia, the
second-amended complaint did not allege conduct that was vexatious and unreasonable.
¶ 36 The circuit court properly dismissed the claim under section 2-619 as well. State Farm
attached Thompson’s affidavit to its motion. Because Gia provided no counter-affidavit, Gia
has admitted the facts stated therein. See Zedella, 165 Ill. 2d at 185. Additionally, Thompson’s
affidavit, Gia’s testimony, and EFI’s reports show that a bona fide dispute existed as to whether
coverage was negated by the unoccupied dwelling exclusion and the concealment or fraud
condition. We note that Gia’s brief fails to even acknowledge that State Farm raised the
concealment or fraud condition as a basis to deny coverage.
¶ 37 Gia testified that, after Charles died, she stopped sleeping at the property and, by 2012,
went there only once or twice a week. She testified that she eventually lived with Mark “full
time” in Steger, although she apparently kept few belongings there. She did not recall going to
the property between December 2015 and May 2016. Cf. Lundquist v. Allstate Insurance Co.,
314 Ill. App. 3d 240, 246-47 (2000) (finding a question of fact as to whether the home was
“occupied” where the insureds were present on several occasions during the 60 days preceding
the fire, where an insured stayed overnight at least once during that period). Additionally,
Thompson learned that Gia told Crete that she had moved out in 2007. See Thompson v. Green
Garden Mutual Insurance Co., 261 Ill. App. 3d 286, 291 (1994) (stating that “unoccupied” or
the phrase “vacant or unoccupied,” in the context of a coverage exclusion, means “that no one
was living in the dwelling or had actual use or possession of the dwelling at the time of loss”);
Lundquist, 314 Ill. App. 3d at 245 (stating that “[a] house is unoccupied when ‘it has ceased to
be a customary place of habitation or abode, and no one is living or residing in it’ ” (quoting
44 Am. Jur. 2d Insurance § 1220 (1982))). This created a bona fide dispute as to whether the
property was occupied. Moreover, Gia testified that the heat was on an automatic setting, but
she did not specify the temperature it was set to. Mark similarly told Thompson that the heat
was left on in their absence, but he did not recall what temperature the thermostat was set at.
EFI further reported that an inadequate amount of gas was used to properly heat the property.
Even when reviewed in the light most favorable to Gia, the items attached to the motion to
dismiss show a bona fide dispute existed as to whether the unoccupied dwelling exclusion
applied.
¶ 38 As to the fraud or concealment condition, it was clearly material, in light of the unoccupied
dwelling exclusion, whether anyone was actually living at the property and whether the water
supply had been turned off. Yet, Gia and Mark provided State Farm with inconsistent
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information in this regard. According to Thompson, Mark stated at various times that he and
Gia were on vacation from either November 2015, December 2015, or January 2016 to May
2016. This stands in direct contrast to Gia’s testimony that they were on vacation for only 7 to
10 days. Additionally, Mark told Thompson that Crete turned the water off in 2016 upon
noticing large usage. Thompson learned from Crete, however, that water usage had been low
since 2006 and that water to the property was turned off for nonpayment in June 2014. Mark
later said that Gia had asked Crete to turn the water off in 2014 but that Crete had not done so.
Yet, Gia testified that she never had the water shut off. 2 Furthermore, Mark provided varying
accounts of why Gia could not provide water invoices. He said they were unavailable because
Gia paid in cash, because Crete did not have the invoices, and because Crete had not invoiced
them since 2014. No insurer would overlook such inconsistencies.
¶ 39 In light of the foregoing, a bona fide coverage dispute existed. See Illinois Founders
Insurance Co., 2015 IL App (1st) 122481, ¶¶ 34 (finding it unnecessary for “every scintilla of
evidence” to point against coverage or for the evidence of a defense to be “overwhelming or
conclusive”); cf. Cook ex rel. Cook, 2014 IL App (1st) 123700, ¶¶ 46, 48 (stating where the
plaintiff’s section 155 claim proceeded to a bench trial that “[w]hether a delay is vexatious and
unreasonable is a question of fact that must be assessed based on the totality of the
circumstances, taken in broad focus”). The circuit court properly dismissed Gia’s claim
pursuant to section 155 of the Code.
¶ 40 B. Postjudgment Order
¶ 41 On cross-appeal, State Farm asserts that the circuit court improperly used a nunc pro tunc
order to alter its prior determination that Gia willfully violated a discovery order. We find that,
while the court referred to the order as being entered nunc pro tunc, the order neither qualified
as a nunc pro tunc order nor needed to qualify as one.
¶ 42 A circuit court generally loses jurisdiction to modify a judgment 30 days after its entry.
Beck v. Stepp, 144 Ill. 2d 232, 238 (1991), abrogated on other grounds by Kingbrook, Inc. v.
Pupurs, 202 Ill. 2d 24, 30-33 (2002). A court may modify its judgment nunc pro tunc at any
time, however, to correct a clerical error so that the record conforms to the judgment actually
rendered. Beck, 144 Ill. 2d at 238. Thus, a nunc pro tunc order may be useful when the court
has lost jurisdiction. We review de novo whether an order satisfies the criteria for a
nunc pro tunc order. People v. Jones, 2016 IL App (1st) 142582, ¶ 12.
¶ 43 A nunc pro tunc order is intended to make the record reflect what was actually done before.
Harreld v. Butler, 2014 IL App (2d) 131065, ¶ 13. More specifically, a nunc pro tunc
amendment may only reflect things that the court actually did before but were omitted from
the earlier order due to a clerical error. Jones, 2016 IL App (1st) 142582, ¶ 11. Conversely, a
nunc pro tunc order cannot be used to “correct a judicial error under the pretense of correcting
a clerical error.” Harreld, 2014 IL App (2d) 131065, ¶ 13. A nunc pro tunc order does not alter
or reverse the actual judgment. Deutsche Bank National Trust Co. v. Ivicic, 2015 IL App (2d)
140970, ¶¶ 17, 19.
¶ 44 On February 28, 2019, the circuit court found that Gia willfully failed to appear for her
deposition, in violation of the court’s discovery order. Less than 30 days later, while the court
2
Notably, Gia states in her appellant’s brief, without citation to the record, that “municipal records
indicated that the plaintiff had shut off the water before her vacation.”
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still had jurisdiction, Gia moved to vacate that finding. The court also granted that motion
within 30 days. The court indisputably had jurisdiction to do so. Although State Farm argued
in the circuit court that the voluntary dismissal of the breach of contract count left the court
without jurisdiction, State Farm has failed to develop an argument to that effect on appeal. Cf.
Beck, 144 Ill. 2d at 235, 242 (finding, where the circuit court improperly purported to modify
an order nunc pro tunc as to a judgment rendered four months earlier, the modification was
void).
¶ 45 At the hearing on Gia’s motion, the court determined that its prior order, determining that
Gia willfully and wantonly violated an even earlier discovery order, was incorrect and granted
Gia’s motion to vacate. State Farm has developed no argument regarding the merits of that
determination. In addition, we agree with State Farm’s contention that the court was wrong to
say it was changing the order nunc pro tunc, as the court was clearly altering the actual
judgment previously entered by the court. That being said, the court’s characterization of the
order as nunc pro tunc was superfluous, as the court had jurisdiction. We find no error. See
also Deutsche Bank National Trust Co., 2015 IL App (2d) 140970, ¶¶ 22-23 (after determining
that the circuit court could not alter the judgment nunc pro tunc, the reviewing court considered
whether the court could merely reconsider the prior judgment).
¶ 46 III. Conclusion
¶ 47 Here, the pleadings unambiguously showed that a bona fide dispute existed as to coverage
and that State Farm did not act vexatiously and unreasonably in denying coverage. Thus, the
circuit court properly dismissed Gia’s claim under section 155 of the Code. While the
postjudgment order could not be entered nunc pro tunc, it did not need to be.
¶ 48 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 49 Affirmed.
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